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4,580,989		Michael Thomas v. Raymond Anderson	2019-01-11	15-2830	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before BAUER, ROVNER, and SYKES, Circuit Judges.", "parties": "", "opinions": [{"author": "Diane S. Sykes", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 15-2830\nMICHAEL N. THOMAS,\n Plaintiff-Appellant,\n v.\n\nRAYMOND ANDERSON, et al.,\n Defendants-Appellees.\n ____________________\n\n Appeal from the United States District Court\n for the Central District of Illinois.\n No. 12-C-1343 — Joe Billy McDade, Judge.\n ____________________\n\n ARGUED FEBRUARY 7, 2018 — DECIDED NOVEMBER 14, 2018\n AS AMENDED ON PETITION FOR REHEARING JANUARY 11, 2019\n ____________________\n\n Before BAUER, ROVNER, and SYKES, Circuit Judges.\n SYKES, Circuit Judge. Michael Thomas, an Illinois prisoner\nformerly confined at Hill Correctional Center, alleged that\nprison guards attacked him with excessive force and that the\nbeating and subsequent disciplinary proceedings were in\nretaliation for lawsuits and grievances he filed. He sued the\nguards and other prison officials seeking damages under\n42 U.S.C. § 1983. In the course of pretrial proceedings, the\n\f2 No. 15-2830\n\ndistrict judge required the parties to stipulate to the events\npreceding the attack and ruled that certain inmate witnesses\nmust appear, if at all, by video conference. The judge also\ndeclined Thomas’s request for recruited counsel, determin-\ning that he was competent to litigate the suit pro se. At trial\nthe judge entered judgment as a matter of law for the de-\nfendants on all claims except those asserting excessive force\nby two officers. The jury decided those claims against\nThomas.\n On appeal Thomas contests the judge’s evidentiary rul-\nings, the decision not to recruit counsel, and the partial\njudgment for the defendants as a matter of law. Because\nThomas’s trial testimony allowed for a permissible inference\nof retaliation, the judge should not have taken the retaliation\nclaims from the jury. We reverse the judgment on those\nclaims. In all other respects, we affirm.\n I. Background\n Thomas’s lawsuit centers on an altercation that occurred\non March 24, 2011, at Hill Correctional. Thomas alleged that\ntwo prison guards, Raymond Anderson and Richard\nCochran, attacked him and that a third guard, Roger\nFitchpatrick, failed to intervene to stop the attack, all in\nviolation of his rights under the Eighth Amendment. He also\nclaimed that the officers violated the First Amendment by\nretaliating against him for his past grievances and lawsuits:\nAnderson, Cochran, and Fitchpatrick by assaulting him (or\nfailing to intervene); Anderson and Cochran by issuing\nphony disciplinary charges after the attack; and two hearing\nofficers, Cornealious Sanders and Scott Bailey, by finding\nhim guilty of the charges knowing that they were baseless.\n\fNo. 15-2830 3\n\n At trial Thomas testified to his version of the events on\nMarch 24 and the disciplinary proceeding that followed. He\ntestified that on the morning of March 24, he was showering\nbefore the morning lockup when Officers Anderson,\nCochran, and Fitchpatrick saw him and signaled—seven or\neight minutes early—that all inmates must immediately\nreturn to their cells. Thomas hurried, still soapy and partial-\nly undressed, to return to his cell. Cochran slammed the cell\ndoor shut before Thomas could enter, but the door bounced\nopen and he managed to slip inside. Anderson, Cochran,\nand Fitchpatrick followed, and Anderson told Cochran to\n“write that MF’er a ticket” for refusing to enter his cell after\nthe lockup signal. When Thomas protested, Cochran cor-\nnered him, cursing and screaming. Anderson then rebuked\nThomas, saying, “You should have thought about that\nbefore you made all of [your] complaints about me and\nfiling grievances about me in the prison.” Thomas had\npreviously filed grievances complaining that Anderson had\n(among other things) threatened to retaliate against him for\nnotifying prison administrators, legislators, and government\nofficials of problems at Hill, including safety and sanitation.\nCochran told him that he “didn’t like inmates who tried to\nget staff in trouble.”\n Thomas testified that after the officers entered his cell,\nCochran handcuffed him and Fitchpatrick ordered his\ncellmate to leave. Anderson then directed Cochran to teach\nThomas how to keep his “mouth closed and to not make the\nstaff upset.” Cochran pushed Thomas to the ground and\npunched him while a second guard “yanked” him. Thomas\ntold the jury that this second guard must have been\nAnderson because he could see Fitchpatrick standing back\n“egging them on.” The three guards then pulled Thomas\n\f4 No. 15-2830\n\nfrom his cell and threw him against the corridor walls before\nsending him to the segregation unit.\n The defendants disputed Thomas’s version of events,\ndenying that they used excessive force against him.\nAnderson and Cochran testified that Thomas resisted the\nlockup and shouted racial epithets. Cochran acknowledged\nthat he handcuffed Thomas but denied using excessive force\nin doing so. Fitchpatrick echoed that Thomas had been\nshouting and swearing, and he too denied that Cochran used\nundue force. Anderson testified that he told Fitchpatrick that\nhe did not want anything to do with Thomas because of his\nprevious grievances against him. Fitchpatrick admitted\nknowing that Thomas had filed grievances against\nAnderson; Cochran testified that he did not know about the\ngrievances.\n Disciplinary proceedings against Thomas followed this\nincident. Cochran wrote Thomas up for resisting the lockup,\nmaking threats, being insolent, and disobeying a direct\norder. Officers Bailey and Sanders conducted the discipli-\nnary hearing on these charges; the parties disagree about\nwhat happened. According to Thomas, Bailey and Sanders\ntold him that “their hands were tied” and they “couldn’t”\nexonerate him. He testified that Sanders mentioned that he\nwas about to retire and did not want trouble, and Bailey said\nthat Thomas “shouldn’t have been making complaints about\nthe prison” if he did not want “to be in a situation like” this\none. Sanders denied saying that he found Thomas guilty\nbecause his “hands were tied” or that Thomas should not file\ngrievances. Likewise, Bailey denied warning Thomas against\ncomplaining about prison employees. Thomas was found\nguilty of the rules violations and received a month in segre-\n\fNo. 15-2830 5\n\ngation and then spent three months assigned to C grade, a\nmore restrictive confinement.\n The judge restricted the scope of the trial in several ways\nthat are relevant to this appeal. In lieu of admitting volumi-\nnous evidence of Thomas’s prior grievances, the judge\nrequired the parties to stipulate that Thomas had filed\nnumerous grievances against Anderson and others, and that\nhe also had sued Anderson. Over Thomas’s objection, the\njudge also refused to permit testimony about events before\nMarch 24. The judge barred the testimony of two of\nThomas’s proffered inmate witnesses, Kiante Simmons and\nXavier Landers, who were no longer in state prison. Thomas\nthought that they might be incarcerated elsewhere—perhaps\nthe Cook County Jail and an unnamed federal facility,\nrespectively—but this supposition was just speculation. In\nany event, even assuming that they were in custody some-\nwhere else, the judge was only willing to permit them to\ntestify via video conference; he would not order them pro-\nduced for in-person testimony.\n Early on in the case, the judge had denied Thomas’s sev-\neral requests for recruited pro bono counsel. Closer to trial,\nthe judge did not rule on Thomas’s requests to reconsider\nthose earlier decisions. Finally, at the close of the evidence,\nthe judge took several claims from the jury, granting the\ndefendants’ motion for judgment as a matter of law under\nRule 50 of the Federal Rules of Civil Procedure. In the end\nthe jury was asked to decide only if Anderson and Cochran\nhad used excessive force and, if so, whether Anderson had\nbeen motivated to do so by a desire to retaliate for Thomas’s\n\f6 No. 15-2830\n\nlawsuits and grievances. On these claims the jury returned a\nverdict for Anderson and Cochran. This appeal followed. 1\n II. Analysis\n We begin with Thomas’s argument that the judge was\nwrong to grant the defendants’ Rule 50 motion on two\nclaims: that Anderson and Cochran retaliated against him by\nissuing a phony disciplinary report and that Sanders and\nBailey retaliated against him by conducting a sham discipli-\nnary hearing. Judgment as a matter of law is justified only if\nafter a full hearing there is no “legally sufficient evidentiary\nbasis to find for the party on that issue.” FED. R. CIV.\nP. 50(a)(1); Lopez v. City of Chicago, 464 F.3d 711, 718 (7th Cir.\n2006). Because the judge overlooked testimony supporting\nThomas’s position and failed to view evidence in the light\nmost favorable to him, we reverse the judgment on these\nclaims.\n As to Anderson, the judge explained that “the only evi-\ndence relating to any retaliation” was Anderson telling\nFitchpatrick that he did not want anything to do with\nThomas because of his previous grievances. But Thomas’s\naccount of the encounter provided an evidentiary basis from\nwhich a reasonable jury could infer retaliatory motive.\nThomas testified that (1) Anderson called for an early lockup\nafter seeing him in the shower; (2) Anderson told Cochran to\nwrite Thomas a ticket for refusing to lock up, even though\nThomas did not refuse; and (3) when Thomas protested that\n\n\n1 We sua sponte recruited pro bono counsel for Thomas on appeal. Barry\nLevenstam, Remi J.D. Jaffre, and Jenner & Block LLP, accepted the\nappointment. They have ably discharged their duties. We thank them for\ntheir service to their client and the court.\n\fNo. 15-2830 7\n\nthe ticket was baseless, Anderson scoffed: “You should have\nthought about that before you made all of [your] complaints\nabout me and filing grievances about me in the prison.” It\nwas for the jury to decide which account to believe.\nPassananti v. Cook County, 689 F.3d 655, 659 (7th Cir. 2012)\n(noting that in assessing a Rule 50 motion, “[t]he court does\nnot make credibility determinations or weigh the evidence”);\nLopez, 464 F.3d at 720 (same). A jury could reasonably con-\nclude from Thomas’s version that Anderson orchestrated\nThomas’s “late” return to his cell to trump up a false disci-\nplinary charge in retaliation for Thomas’s past complaints.\n We reach a similar conclusion about Cochran. The judge\ngranted the Rule 50 motion on the retaliation claim against\nhim because he thought that there was no evidence that\nCochran knew of Thomas’s litigation. But Thomas testified\nthat Cochran was in the cell when Anderson told Thomas\nthat he should not have filed grievances and that Cochran\nhimself said that he “didn’t like inmates who tried to get\nstaff in trouble.” A jury could reasonably infer based on\nthese statements that Cochran helped call for an early lockup\nbefore Thomas finished showering as revenge for Thomas’s\ngrievances and lawsuits. See Gevas v. McLaughlin, 798 F.3d\n475, 477 (7th Cir. 2015) (assessing a Rule 50 motion requires\nthe court “to assume the truth of” the testimony of the\nnonmoving party).\n Finally, the jury should have been permitted to decide\nwhether Bailey and Sanders held a hearing that they knew\nwas a sham for the purpose of retaliating against Thomas.\nThe judge entered judgment in their favor on this claim\nbecause again he thought no evidence showed that these\ndefendants knew of Thomas’s past grievances. But retaliato-\n\f8 No. 15-2830\n\nry motive can be inferred from Thomas’s account of the\nhearing. See id. at 477, 481–82. Thomas testified that Bailey\ntold him that he “shouldn’t have been making complaints\nabout the prison” if he didn’t “want to be in [this] situation”\nand that his “hands were tied.” And he testified further that\nSanders agreed that his “hands were tied” and expressed\nconcern that conducting a fair hearing could interfere with\nhis retirement.\n Bailey and Sanders respond that Thomas’s testimony\nsuggests only that they were motivated by personal con-\ncerns, not by Thomas’s First Amendment activity. But a\nretaliation claim only requires evidence that the plaintiff’s\nprotected activity was “at least a motivating factor” for the\nretaliatory action. Perez v. Fenoglio, 792 F.3d 768, 783 (7th Cir.\n2015) (emphasis added) (quoting Bridges v. Gilbert, 557 F.3d\n541, 546 (7th Cir. 2009)). Thomas’s testimony, if a jury finds it\ncredible, could support an inference that retaliation for his\npast grievances was a motivating factor in their decision.\nViewed as a whole, there was sufficient evidence to present\nthis claim to the jury.\nA. Events Before March 24, 2011\n Thomas also contests the judge’s decision to bar testimo-\nny about events before March 24, 2011, and instead require\nthe parties to stipulate that Thomas had filed grievances\nagainst Anderson and other prison officials. Thomas pro-\nposed to introduce at trial more than 150 complaints and\ngrievances he had filed. The judge ruled that admitting that\nnumber of grievances could confuse the issues, prolong the\ntrial, and possibly prejudice the jurors. And apart from\nconcerns about the quantity, the judge worried that jurors\n\fNo. 15-2830 9\n\nwould be tempted to assess whether the grievances were\ntrue.\n Thomas contends that this restriction disabled him from\nshowing that his grievances actually motivated Anderson to\nretaliate against him. He argues that he could have used\nevidence from before March 24 to show that Anderson had\nthreatened to issue “bogus disciplinary reports” and physi-\ncally harm him if he did not stop filing grievances. In place\nof this evidence, Thomas says, the stipulation informed the\njury only that he had engaged in constitutionally protected\nactivity.\n That is not an accurate characterization of the stipulation.\nThe stipulation informed the jury in general terms of\nThomas’s grievance and complaints about prison conditions.\nIt also explained that Thomas had accused Anderson of\n“locking prisoners up in their cells earlier than the allowable\ntime, making racial comments to inmates and threatening\ninmates, including plaintiff, with punishment for making\ncomplaints about [Anderson].” That was enough to convey\nto the jury the basic background facts pertaining to the\nalleged retaliatory motive.\n Moreover, the judge was understandably concerned that\npermitting Thomas to introduce the entire record of his prior\ngrievances would bog down the proceedings and distract\nand potentially confuse the jurors. To avoid those risks, the\njudge reasonably concluded that the stipulation was an\nappropriate substitute for this evidence. See Marcus &\nMillichap Inv. Servs. of Chi., Inc. v. Sekulovski, 639 F.3d 301, 307\n(7th Cir. 2011). That ruling was well within the judge’s\nauthority to manage the efficiency of the trial by streamlin-\ning Thomas’s voluminous proposed evidence. See Whitfield\n\f10 No. 15-2830\n\nv. Int’l Truck & Engine Corp., 755 F.3d 438, 447 (7th Cir. 2014).\nWe see no abuse of discretion.\nB. Exclusion of Kiante Simmons and Xavier Landers\n Thomas also challenges the judge’s decision to exclude\nthe testimony of two inmate witnesses, Kiante Simmons and\nXavier Landers. In both instances the judge stated that the\nwitnesses must testify, if at all, using video-conferencing\ntechnology. Because Thomas did not produce video-\nconference addresses for Simmons and Landers, they did not\ntestify.\n First, to the extent that either witness would have testi-\nfied about events before March 24, 2011, their exclusion was\nharmless because the judge’s earlier ruling foreclosed that\nevidence. And contrary to Thomas’s argument on appeal,\nthe judge’s failure to apply the balancing test outlined in\nStone v. Morris, 546 F.2d 730 (7th Cir. 1976), was not reversi-\nble error. By its terms, Stone applies when a district judge\nmust decide whether a “plaintiff-prisoner in a civil rights\nsuit” should be brought to court for trial. We explained that\nthe judge should weigh the logistical difficulties and particu-\nlar security risks of transporting the plaintiff-prisoner\nagainst the prisoner’s interest in testifying in person and\nexamining the witnesses face-to-face. Id. at 735–36.\n We have not extended Stone’s particularized balancing\ntest to nonparty inmate witnesses. As we’ve explained more\nrecently, forcing a prisoner-plaintiff to try his case remotely\nby video conferencing raises special challenges—e.g., the\ninability of the prisoner-plaintiff to see jurors’ faces, the\ndifficulty in examining and evaluating witnesses, and the\ncomplications associated with communicating with the court\n\fNo. 15-2830 11\n\nand opposing counsel. See Perotti v. Quinones, 790 F.3d 712,\n725 (7th Cir. 2015). Those concerns do not affect nonparty\ninmate witnesses testifying live via video-conferencing\ntechnology.\n Instead, Rule 43(a) of the Federal Rules of Civil Proce-\ndure and 28 U.S.C. § 2241(c)(5) bear directly on this question.\nThe latter permits the court to issue a writ of habeas corpus\nwhen “[i]t is necessary to bring [a prisoner] to court to testify\nor for trial.” § 2241(c)(5). And under Rule 43(a), the judge\nhas discretion to allow live testimony by video for “good\ncause in compelling circumstances and with appropriate\nsafeguards.” Thornton v. Snyder, 428 F.3d 690, 698 (7th Cir.\n2005) (“Rule 43 affirmatively allows for testimony by vide-\noconference in certain circumstances … .”).\n Here, another inmate witness testified to the same infor-\nmation that Thomas says he wanted to cover with Simmons\nand Landers. The judge determined that Thomas’s interest in\ntheir testimony was outweighed by the expense and incon-\nvenience of transporting them for trial (assuming they could\nbe located and were in fact in custody). So he allowed them\nto testify, if at all, only by video. That ruling was well within\nhis discretion.\n Moreover, Thomas has not come close to establishing\nthat he was prejudiced by the absence of their testimony. See\nMason v. S. Ill. Univ. at Carbondale, 233 F.3d 1039, 1042–43\n(7th Cir. 2000) (explaining that the party challenging the\nexclusion of the evidence must record the grounds for\nadmissibility, content, and significance of the excluded\ntestimony). Thomas suggests that Simmons and Landers\nwould have recalled the March 24 altercation better than the\ninmate who testified in support of his story. But he has no\n\f12 No. 15-2830\n\nevidence to back up that assertion. Accordingly, the judge’s\nfailure to apply Stone’s particularized balancing test was not\nreversible error. 2\nC. Recruitment of Counsel\n Finally, Thomas argues that the judge abused his discre-\ntion by declining to recruit counsel to represent him. We\ndisagree. Thomas filed two requests for counsel in February\n2014 and February 2015. But neither request showed that he\ntried to obtain counsel on his own or that he was precluded\nfrom doing so. So the judge’s denial of these requests was\nnot an abuse of discretion. Pruitt v. Mote, 503 F.3d 647, 654–\n55 (7th Cir. 2007) (en banc); see Romanelli v. Suliene, 615 F.3d\n\n\n2 We note that the Third Circuit has said that the Stone balancing test\napplies to a request by a prisoner-plaintiff for production of nonparty\ninmate witnesses at a civil trial. Jerry v. Francisco, 632 F.2d 252, 255–56 (3d\nCir. 1980). But in Jerry the magistrate judge and the district court com-\npletely overlooked the prisoner-plaintiff’s motion to produce inmate\nwitnesses to testify at his civil-rights trial. The court held that “[i]t was\nclearly error to fail to act on the motion and exercise the discretion.” Id.\nat 256. More importantly, without analysis and in a single sentence, the\nThird Circuit imported the Stone balancing test to this situation. Id. (“We\nbelieve that the same considerations must be weighed in determining\nwhether a writ of habeas corpus ad testificandum should be issued to\nsecure the appearance of an incarcerated non-party witness at the\nrequest of an incarcerated plaintiff.”). The court did not pause to consid-\ner that the concerns underlying Stone—namely, safeguarding a prisoner-\nplaintiff’s access to the courts— are not implicated in precisely the same\nway when the inmate is a witness for the plaintiff rather than the plaintiff\nhimself. Finally, and most significantly, the Third Circuit was not con-\nfronted with the ready alternative of live inmate testimony by video-\nconferencing technology, which is now widely available and was the\nmode of testimony the judge settled on here. For these reasons, Jerry is\ndistinguishable.\n\fNo. 15-2830 13\n\n847, 851–52 (7th Cir. 2010) (explaining that the denial of a\nmotion to recruit counsel was justified by the district court’s\nfinding that the plaintiff had not tried to obtain counsel).\nAnd the judge did not limit his decision to that particular\ndefect; he also ruled that Thomas was competent to litigate\nhis own case.\n Before trial, Thomas twice more asked that the judge “re-\nconsider appointing counsel.” Although these requests\ncured the technical defect in the earlier ones—Thomas\nspecifically stated that he had tried unsuccessfully to find\ncounsel—the judge did not rule on them. But once a judge\nappropriately addresses and resolves a request for recruit-\nment of pro bono counsel, he need not revisit the question.\nPruitt, 503 F.3d at 658; cf. Childress v. Walker, 787 F.3d 433,\n442–43 (7th Cir. 2015) (finding that it was an abuse of discre-\ntion to act on neither of the plaintiff’s requests for counsel);\nDewitt v. Corizon, Inc., 760 F.3d 654, 657–59 (7th Cir. 2014)\n(finding that it was an abuse to deny the initial motions for\ncounsel without explaining the reasoning and then to ignore\nsubsequent requests). We find no error.\n III. Conclusion\n Accordingly, the judgment is REVERSED, and the case is\nREMANDED for further proceedings on the retaliation claims\nagainst Anderson, Cochran, Sanders, and Bailey. In all other\nrespects, the judgment is AFFIRMED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4358242/", "author_raw": "Diane S. Sykes"}]}	BAUER	ROVNER	SYKES	1		{"BAUER": ", Circuit", "ROVNER": ", Circuit", "SYKES": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4580989/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Michael Thomas v. Raymond Anderson\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-11\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 15-2830\nMICHAEL N. THOMAS,\n Plaintiff-Appellant,\n v.\n\nRAYMOND ANDERSON, et al.,\n Defendants-Appellees.\n ____________________\n\n Appeal from the United States District Court\n for the Central District of Illinois.\n No. 12-C-1343 — Joe Billy McDade, Judge.\n ____________________\n\n ARGUED FEBRUARY 7, 2018 — DECIDED NOVEMBER 14, 2018\n AS AMENDED ON PETITION FOR REHEARING JANUARY 11, 2019\n ____________________\n\n Before BAUER, ROVNER, and SYKES, Circuit Judges.\n SYKES, Circuit Judge. Michael Thomas, an Illinois prisoner\nformerly confined at Hill Correctional Center, alleged that\nprison guards attacked him with excessive force and that the\nbeating and subsequent disciplinary proceedings were in\nretaliation for lawsuits and grievances he filed. He sued the\nguards and other prison officials seeking damages under\n42 U.S.C. § 1983. In the course of pretrial proceedings, the\n\f2 No. 15-2830\n\ndistrict judge required the parties to stipulate to the events\npreceding the attack and ruled that certain inmate witnesses\nmust appear, if at all, by video conference. The judge also\ndeclined Thomas’s request for recruited counsel, determin-\ning that he was competent to litigate the suit pro se. At trial\nthe judge entered judgment as a matter of law for the de-\nfendants on all claims except those asserting excessive force\nby two officers. The jury decided those claims against\nThomas.\n On appeal Thomas contests the judge’s evidentiary rul-\nings, the decision not to recruit counsel, and the partial\njudgment for the defendants as a matter of law. Because\nThomas’s trial testimony allowed for a permissible inference\nof retaliation, the judge should not have taken the retaliation\nclaims from the jury. We reverse the judgment on those\nclaims. In all other respects, we affirm.\n I. Background\n Thomas’s lawsuit centers on an altercation that occurred\non March 24, 2011, at Hill Correctional. Thomas alleged that\ntwo prison guards, Raymond Anderson and Richard\nCochran, attacked him and that a third guard, Roger\nFitchpatrick, failed to intervene to stop the attack, all in\nviolation of his rights under the Eighth Amendment. He also\nclaimed that the officers violated the First Amendment by\nretaliating against him for his past grievances and lawsuits:\nAnderson, Cochran, and Fitchpatrick by assaulting him (or\nfailing to intervene); Anderson and Cochran by issuing\nphony disciplinary charges after the attack; and two hearing\nofficers, Cornealious Sanders and Scott Bailey, by finding\nhim guilty of the charges knowing that they were baseless.\n\fNo. 15-2830 3\n\n At trial Thomas testified to his version of the events on\nMarch 24 and the disciplinary proceeding that followed. He\ntestified that on the morning of March 24, he was showering\nbefore the morning lockup when Officers Anderson,\nCochran, and Fitchpatrick saw him and signaled—seven or\neight minutes early—that all inmates must immediately\nreturn to their cells. Thomas hurried, still soapy and partial-\nly undressed, to return to his cell. Cochran slammed the cell\ndoor shut before Thomas could enter, but the door bounced\nopen and he managed to slip inside. Anderson, Cochran,\nand Fitchpatrick followed, and Anderson told Cochran to\n“write that MF’er a ticket” for refusing to enter his cell after\nthe lockup signal. When Thomas protested, Cochran cor-\nnered him, cursing and screaming. Anderson then rebuked\nThomas, saying, “You should have thought about that\nbefore you made all of [your] complaints about me and\nfiling grievances about me in the prison.” Thomas had\npreviously filed grievances complaining that Anderson had\n(among other things) threatened to retaliate against him for\nnotifying prison administrators, legislators, and government\nofficials of problems at Hill, including safety and sanitation.\nCochran told him that he “didn’t like inmates who tried to\nget staff in trouble.”\n Thomas testified that after the officers entered his cell,\nCochran handcuffed him and Fitchpatrick ordered his\ncellmate to leave. Anderson then directed Cochran to teach\nThomas how to keep his “mouth closed and to not make the\nstaff upset.” Cochran pushed Thomas to the ground and\npunched him while a second guard “yanked” him. Thomas\ntold the jury that this second guard must have been\nAnderson because he could see Fitchpatrick standing back\n“egging them on.” The three guards then pulled Thomas\n\f4 No. 15-2830\n\nfrom his cell and threw him against the corridor walls before\nsending him to the segregation unit.\n The defendants disputed Thomas’s version of events,\ndenying that they used excessive force against him.\nAnderson and Cochran testified that Thomas resisted the\nlockup and shouted racial epithets. Cochran acknowledged\nthat he handcuffed Thomas but denied using excessive force\nin doing so. Fitchpatrick echoed that Thomas had been\nshouting and swearing, and he too denied that Cochran used\nundue force. Anderson testified that he told Fitchpatrick that\nhe did not want anything to do with Thomas because of his\nprevious grievances against him. Fitchpatrick admitted\nknowing that Thomas had filed grievances against\nAnderson; Cochran testified that he did not know about the\ngrievances.\n Disciplinary proceedings against Thomas followed this\nincident. Cochran wrote Thomas up for resisting the lockup,\nmaking threats, being insolent, and disobeying a direct\norder. Officers Bailey and Sanders conducted the discipli-\nnary hearing on these charges; the parties disagree about\nwhat happened. According to Thomas, Bailey and Sanders\ntold him that “their hands were tied” and they “couldn’t”\nexonerate him. He testified that Sanders mentioned that he\nwas about to retire and did not want trouble, and Bailey said\nthat Thomas “shouldn’t have been making complaints about\nthe prison” if he did not want “to be in a situation like” this\none. Sanders denied saying that he found Thomas guilty\nbecause his “hands were tied” or that Thomas should not file\ngrievances. Likewise, Bailey denied warning Thomas against\ncomplaining about prison employees. Thomas was found\nguilty of the rules violations and received a month in segre-\n\fNo. 15-2830 5\n\ngation and then spent three months assigned to C grade, a\nmore restrictive confinement.\n The judge restricted the scope of the trial in several ways\nthat are relevant to this appeal. In lieu of admitting volumi-\nnous evidence of Thomas’s prior grievances, the judge\nrequired the parties to stipulate that Thomas had filed\nnumerous grievances against Anderson and others, and that\nhe also had sued Anderson. Over Thomas’s objection, the\njudge also refused to permit testimony about events before\nMarch 24. The judge barred the testimony of two of\nThomas’s proffered inmate witnesses, Kiante Simmons and\nXavier Landers, who were no longer in state prison. Thomas\nthought that they might be incarcerated elsewhere—perhaps\nthe Cook County Jail and an unnamed federal facility,\nrespectively—but this supposition was just speculation. In\nany event, even assuming that they were in custody some-\nwhere else, the judge was only willing to permit them to\ntestify via video conference; he would not order them pro-\nduced for in-person testimony.\n Early on in the case, the judge had denied Thomas’s sev-\neral requests for recruited pro bono counsel. Closer to trial,\nthe judge did not rule on Thomas’s requests to reconsider\nthose earlier decisions. Finally, at the close of the evidence,\nthe judge took several claims from the jury, granting the\ndefendants’ motion for judgment as a matter of law under\nRule 50 of the Federal Rules of Civil Procedure. In the end\nthe jury was asked to decide only if Anderson and Cochran\nhad used excessive force and, if so, whether Anderson had\nbeen motivated to do so by a desire to retaliate for Thomas’s\n\f6 No. 15-2830\n\nlawsuits and grievances. On these claims the jury returned a\nverdict for Anderson and Cochran. This appeal followed. 1\n II. Analysis\n We begin with Thomas’s argument that the judge was\nwrong to grant the defendants’ Rule 50 motion on two\nclaims: that Anderson and Cochran retaliated against him by\nissuing a phony disciplinary report and that Sanders and\nBailey retaliated against him by conducting a sham discipli-\nnary hearing. Judgment as a matter of law is justified only if\nafter a full hearing there is no “legally sufficient evidentiary\nbasis to find for the party on that issue.” FED. R. CIV.\nP. 50(a)(1); Lopez v. City of Chicago, 464 F.3d 711, 718 (7th Cir.\n2006). Because the judge overlooked testimony supporting\nThomas’s position and failed to view evidence in the light\nmost favorable to him, we reverse the judgment on these\nclaims.\n As to Anderson, the judge explained that “the only evi-\ndence relating to any retaliation” was Anderson telling\nFitchpatrick that he did not want anything to do with\nThomas because of his previous grievances. But Thomas’s\naccount of the encounter provided an evidentiary basis from\nwhich a reasonable jury could infer retaliatory motive.\nThomas testified that (1) Anderson called for an early lockup\nafter seeing him in the shower; (2) Anderson told Cochran to\nwrite Thomas a ticket for refusing to lock up, even though\nThomas did not refuse; and (3) when Thomas protested that\n\n\n1 We sua sponte recruited pro bono counsel for Thomas on appeal. Barry\nLevenstam, Remi J.D. Jaffre, and Jenner & Block LLP, accepted the\nappointment. They have ably discharged their duties. We thank them for\ntheir service to their client and the court.\n\fNo. 15-2830 7\n\nthe ticket was baseless, Anderson scoffed: “You should have\nthought about that before you made all of [your] complaints\nabout me and filing grievances about me in the prison.” It\nwas for the jury to decide which account to believe.\nPassananti v. Cook County, 689 F.3d 655, 659 (7th Cir. 2012)\n(noting that in assessing a Rule 50 motion, “[t]he court does\nnot make credibility determinations or weigh the evidence”);\nLopez, 464 F.3d at 720 (same). A jury could reasonably con-\nclude from Thomas’s version that Anderson orchestrated\nThomas’s “late” return to his cell to trump up a false disci-\nplinary charge in retaliation for Thomas’s past complaints.\n We reach a similar conclusion about Cochran. The judge\ngranted the Rule 50 motion on the retaliation claim against\nhim because he thought that there was no evidence that\nCochran knew of Thomas’s litigation. But Thomas testified\nthat Cochran was in the cell when Anderson told Thomas\nthat he should not have filed grievances and that Cochran\nhimself said that he “didn’t like inmates who tried to get\nstaff in trouble.” A jury could reasonably infer based on\nthese statements that Cochran helped call for an early lockup\nbefore Thomas finished showering as revenge for Thomas’s\ngrievances and lawsuits. See Gevas v. McLaughlin, 798 F.3d\n475, 477 (7th Cir. 2015) (assessing a Rule 50 motion requires\nthe court “to assume the truth of” the testimony of the\nnonmoving party).\n Finally, the jury should have been permitted to decide\nwhether Bailey and Sanders held a hearing that they knew\nwas a sham for the purpose of retaliating against Thomas.\nThe judge entered judgment in their favor on this claim\nbecause again he thought no evidence showed that these\ndefendants knew of Thomas’s past grievances. But retaliato-\n\f8 No. 15-2830\n\nry motive can be inferred from Thomas’s account of the\nhearing. See id. at 477, 481–82. Thomas testified that Bailey\ntold him that he “shouldn’t have been making complaints\nabout the prison” if he didn’t “want to be in [this] situation”\nand that his “hands were tied.” And he testified further that\nSanders agreed that his “hands were tied” and expressed\nconcern that conducting a fair hearing could interfere with\nhis retirement.\n Bailey and Sanders respond that Thomas’s testimony\nsuggests only that they were motivated by personal con-\ncerns, not by Thomas’s First Amendment activity. But a\nretaliation claim only requires evidence that the plaintiff’s\nprotected activity was “at least a motivating factor” for the\nretaliatory action. Perez v. Fenoglio, 792 F.3d 768, 783 (7th Cir.\n2015) (emphasis added) (quoting Bridges v. Gilbert, 557 F.3d\n541, 546 (7th Cir. 2009)). Thomas’s testimony, if a jury finds it\ncredible, could support an inference that retaliation for his\npast grievances was a motivating factor in their decision.\nViewed as a whole, there was sufficient evidence to present\nthis claim to the jury.\nA. Events Before March 24, 2011\n Thomas also contests the judge’s decision to bar testimo-\nny about events before March 24, 2011, and instead require\nthe parties to stipulate that Thomas had filed grievances\nagainst Anderson and other prison officials. Thomas pro-\nposed to introduce at trial more than 150 complaints and\ngrievances he had filed. The judge ruled that admitting that\nnumber of grievances could confuse the issues, prolong the\ntrial, and possibly prejudice the jurors. And apart from\nconcerns about the quantity, the judge worried that jurors\n\fNo. 15-2830 9\n\nwould be tempted to assess whether the grievances were\ntrue.\n Thomas contends that this restriction disabled him from\nshowing that his grievances actually motivated Anderson to\nretaliate against him. He argues that he could have used\nevidence from before March 24 to show that Anderson had\nthreatened to issue “bogus disciplinary reports” and physi-\ncally harm him if he did not stop filing grievances. In place\nof this evidence, Thomas says, the stipulation informed the\njury only that he had engaged in constitutionally protected\nactivity.\n That is not an accurate characterization of the stipulation.\nThe stipulation informed the jury in general terms of\nThomas’s grievance and complaints about prison conditions.\nIt also explained that Thomas had accused Anderson of\n“locking prisoners up in their cells earlier than the allowable\ntime, making racial comments to inmates and threatening\ninmates, including plaintiff, with punishment for making\ncomplaints about [Anderson].” That was enough to convey\nto the jury the basic background facts pertaining to the\nalleged retaliatory motive.\n Moreover, the judge was understandably concerned that\npermitting Thomas to introduce the entire record of his prior\ngrievances would bog down the proceedings and distract\nand potentially confuse the jurors. To avoid those risks, the\njudge reasonably concluded that the stipulation was an\nappropriate substitute for this evidence. See Marcus &\nMillichap Inv. Servs. of Chi., Inc. v. Sekulovski, 639 F.3d 301, 307\n(7th Cir. 2011). That ruling was well within the judge’s\nauthority to manage the efficiency of the trial by streamlin-\ning Thomas’s voluminous proposed evidence. See Whitfield\n\f10 No. 15-2830\n\nv. Int’l Truck & Engine Corp., 755 F.3d 438, 447 (7th Cir. 2014).\nWe see no abuse of discretion.\nB. Exclusion of Kiante Simmons and Xavier Landers\n Thomas also challenges the judge’s decision to exclude\nthe testimony of two inmate witnesses, Kiante Simmons and\nXavier Landers. In both instances the judge stated that the\nwitnesses must testify, if at all, using video-conferencing\ntechnology. Because Thomas did not produce video-\nconference addresses for Simmons and Landers, they did not\ntestify.\n First, to the extent that either witness would have testi-\nfied about events before March 24, 2011, their exclusion was\nharmless because the judge’s earlier ruling foreclosed that\nevidence. And contrary to Thomas’s argument on appeal,\nthe judge’s failure to apply the balancing test outlined in\nStone v. Morris, 546 F.2d 730 (7th Cir. 1976), was not reversi-\nble error. By its terms, Stone applies when a district judge\nmust decide whether a “plaintiff-prisoner in a civil rights\nsuit” should be brought to court for trial. We explained that\nthe judge should weigh the logistical difficulties and particu-\nlar security risks of transporting the plaintiff-prisoner\nagainst the prisoner’s interest in testifying in person and\nexamining the witnesses face-to-face. Id. at 735–36.\n We have not extended Stone’s particularized balancing\ntest to nonparty inmate witnesses. As we’ve explained more\nrecently, forcing a prisoner-plaintiff to try his case remotely\nby video conferencing raises special challenges—e.g., the\ninability of the prisoner-plaintiff to see jurors’ faces, the\ndifficulty in examining and evaluating witnesses, and the\ncomplications associated with communicating with the court\n\fNo. 15-2830 11\n\nand opposing counsel. See Perotti v. Quinones, 790 F.3d 712,\n725 (7th Cir. 2015). Those concerns do not affect nonparty\ninmate witnesses testifying live via video-conferencing\ntechnology.\n Instead, Rule 43(a) of the Federal Rules of Civil Proce-\ndure and 28 U.S.C. § 2241(c)(5) bear directly on this question.\nThe latter permits the court to issue a writ of habeas corpus\nwhen “[i]t is necessary to bring [a prisoner] to court to testify\nor for trial.” § 2241(c)(5). And under Rule 43(a), the judge\nhas discretion to allow live testimony by video for “good\ncause in compelling circumstances and with appropriate\nsafeguards.” Thornton v. Snyder, 428 F.3d 690, 698 (7th Cir.\n2005) (“Rule 43 affirmatively allows for testimony by vide-\noconference in certain circumstances … .”).\n Here, another inmate witness testified to the same infor-\nmation that Thomas says he wanted to cover with Simmons\nand Landers. The judge determined that Thomas’s interest in\ntheir testimony was outweighed by the expense and incon-\nvenience of transporting them for trial (assuming they could\nbe located and were in fact in custody). So he allowed them\nto testify, if at all, only by video. That ruling was well within\nhis discretion.\n Moreover, Thomas has not come close to establishing\nthat he was prejudiced by the absence of their testimony. See\nMason v. S. Ill. Univ. at Carbondale, 233 F.3d 1039, 1042–43\n(7th Cir. 2000) (explaining that the party challenging the\nexclusion of the evidence must record the grounds for\nadmissibility, content, and significance of the excluded\ntestimony). Thomas suggests that Simmons and Landers\nwould have recalled the March 24 altercation better than the\ninmate who testified in support of his story. But he has no\n\f12 No. 15-2830\n\nevidence to back up that assertion. Accordingly, the judge’s\nfailure to apply Stone’s particularized balancing test was not\nreversible error. 2\nC. Recruitment of Counsel\n Finally, Thomas argues that the judge abused his discre-\ntion by declining to recruit counsel to represent him. We\ndisagree. Thomas filed two requests for counsel in February\n2014 and February 2015. But neither request showed that he\ntried to obtain counsel on his own or that he was precluded\nfrom doing so. So the judge’s denial of these requests was\nnot an abuse of discretion. Pruitt v. Mote, 503 F.3d 647, 654–\n55 (7th Cir. 2007) (en banc); see Romanelli v. Suliene, 615 F.3d\n\n\n2 We note that the Third Circuit has said that the Stone balancing test\napplies to a request by a prisoner-plaintiff for production of nonparty\ninmate witnesses at a civil trial. Jerry v. Francisco, 632 F.2d 252, 255–56 (3d\nCir. 1980). But in Jerry the magistrate judge and the district court com-\npletely overlooked the prisoner-plaintiff’s motion to produce inmate\nwitnesses to testify at his civil-rights trial. The court held that “[i]t was\nclearly error to fail to act on the motion and exercise the discretion.” Id.\nat 256. More importantly, without analysis and in a single sentence, the\nThird Circuit imported the Stone balancing test to this situation. Id. (“We\nbelieve that the same considerations must be weighed in determining\nwhether a writ of habeas corpus ad testificandum should be issued to\nsecure the appearance of an incarcerated non-party witness at the\nrequest of an incarcerated plaintiff.”). The court did not pause to consid-\ner that the concerns underlying Stone—namely, safeguarding a prisoner-\nplaintiff’s access to the courts— are not implicated in precisely the same\nway when the inmate is a witness for the plaintiff rather than the plaintiff\nhimself. Finally, and most significantly, the Third Circuit was not con-\nfronted with the ready alternative of live inmate testimony by video-\nconferencing technology, which is now widely available and was the\nmode of testimony the judge settled on here. For these reasons, Jerry is\ndistinguishable.\n\fNo. 15-2830 13\n\n847, 851–52 (7th Cir. 2010) (explaining that the denial of a\nmotion to recruit counsel was justified by the district court’s\nfinding that the plaintiff had not tried to obtain counsel).\nAnd the judge did not limit his decision to that particular\ndefect; he also ruled that Thomas was competent to litigate\nhis own case.\n Before trial, Thomas twice more asked that the judge “re-\nconsider appointing counsel.” Although these requests\ncured the technical defect in the earlier ones—Thomas\nspecifically stated that he had tried unsuccessfully to find\ncounsel—the judge did not rule on them. But once a judge\nappropriately addresses and resolves a request for recruit-\nment of pro bono counsel, he need not revisit the question.\nPruitt, 503 F.3d at 658; cf. Childress v. Walker, 787 F.3d 433,\n442–43 (7th Cir. 2015) (finding that it was an abuse of discre-\ntion to act on neither of the plaintiff’s requests for counsel);\nDewitt v. Corizon, Inc., 760 F.3d 654, 657–59 (7th Cir. 2014)\n(finding that it was an abuse to deny the initial motions for\ncounsel without explaining the reasoning and then to ignore\nsubsequent requests). We find no error.\n III. Conclusion\n Accordingly, the judgment is REVERSED, and the case is\nREMANDED for further proceedings on the retaliation claims\nagainst Anderson, Cochran, Sanders, and Bailey. In all other\nrespects, the judgment is AFFIRMED.\n[END_CASE]", "role": "user" } ]
4,581,017		Michael Thomas v. Raymond Anderson	2019-01-11	15-2830	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before BAUER, ROVNER, and SYKES, Circuit Judges.", "parties": "", "opinions": [{"author": "Diane S. Sykes", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 15-2830\nMICHAEL N. THOMAS,\n Plaintiff-Appellant,\n v.\n\nRAYMOND ANDERSON, et al.,\n Defendants-Appellees.\n ____________________\n\n Appeal from the United States District Court\n for the Central District of Illinois.\n No. 12-C-1343 — Joe Billy McDade, Judge.\n ____________________\n\n ARGUED FEBRUARY 7, 2018 — DECIDED NOVEMBER 14, 2018\n AS AMENDED ON PETITION FOR REHEARING JANUARY 11, 2019\n ____________________\n\n Before BAUER, ROVNER, and SYKES, Circuit Judges.\n SYKES, Circuit Judge. Michael Thomas, an Illinois prisoner\nformerly confined at Hill Correctional Center, alleged that\nprison guards attacked him with excessive force and that the\nbeating and subsequent disciplinary proceedings were in\nretaliation for lawsuits and grievances he filed. He sued the\nguards and other prison officials seeking damages under\n42 U.S.C. § 1983. In the course of pretrial proceedings, the\n\f2 No. 15-2830\n\ndistrict judge required the parties to stipulate to the events\npreceding the attack and ruled that certain inmate witnesses\nmust appear, if at all, by video conference. The judge also\ndeclined Thomas’s request for recruited counsel, determin-\ning that he was competent to litigate the suit pro se. At trial\nthe judge entered judgment as a matter of law for the de-\nfendants on all claims except those asserting excessive force\nby two officers. The jury decided those claims against\nThomas.\n On appeal Thomas contests the judge’s evidentiary rul-\nings, the decision not to recruit counsel, and the partial\njudgment for the defendants as a matter of law. Because\nThomas’s trial testimony allowed for a permissible inference\nof retaliation, the judge should not have taken the retaliation\nclaims from the jury. We reverse the judgment on those\nclaims. In all other respects, we affirm.\n I. Background\n Thomas’s lawsuit centers on an altercation that occurred\non March 24, 2011, at Hill Correctional. Thomas alleged that\ntwo prison guards, Raymond Anderson and Richard\nCochran, attacked him and that a third guard, Roger\nFitchpatrick, failed to intervene to stop the attack, all in\nviolation of his rights under the Eighth Amendment. He also\nclaimed that the officers violated the First Amendment by\nretaliating against him for his past grievances and lawsuits:\nAnderson, Cochran, and Fitchpatrick by assaulting him (or\nfailing to intervene); Anderson and Cochran by issuing\nphony disciplinary charges after the attack; and two hearing\nofficers, Cornealious Sanders and Scott Bailey, by finding\nhim guilty of the charges knowing that they were baseless.\n\fNo. 15-2830 3\n\n At trial Thomas testified to his version of the events on\nMarch 24 and the disciplinary proceeding that followed. He\ntestified that on the morning of March 24, he was showering\nbefore the morning lockup when Officers Anderson,\nCochran, and Fitchpatrick saw him and signaled—seven or\neight minutes early—that all inmates must immediately\nreturn to their cells. Thomas hurried, still soapy and partial-\nly undressed, to return to his cell. Cochran slammed the cell\ndoor shut before Thomas could enter, but the door bounced\nopen and he managed to slip inside. Anderson, Cochran,\nand Fitchpatrick followed, and Anderson told Cochran to\n“write that MF’er a ticket” for refusing to enter his cell after\nthe lockup signal. When Thomas protested, Cochran cor-\nnered him, cursing and screaming. Anderson then rebuked\nThomas, saying, “You should have thought about that\nbefore you made all of [your] complaints about me and\nfiling grievances about me in the prison.” Thomas had\npreviously filed grievances complaining that Anderson had\n(among other things) threatened to retaliate against him for\nnotifying prison administrators, legislators, and government\nofficials of problems at Hill, including safety and sanitation.\nCochran told him that he “didn’t like inmates who tried to\nget staff in trouble.”\n Thomas testified that after the officers entered his cell,\nCochran handcuffed him and Fitchpatrick ordered his\ncellmate to leave. Anderson then directed Cochran to teach\nThomas how to keep his “mouth closed and to not make the\nstaff upset.” Cochran pushed Thomas to the ground and\npunched him while a second guard “yanked” him. Thomas\ntold the jury that this second guard must have been\nAnderson because he could see Fitchpatrick standing back\n“egging them on.” The three guards then pulled Thomas\n\f4 No. 15-2830\n\nfrom his cell and threw him against the corridor walls before\nsending him to the segregation unit.\n The defendants disputed Thomas’s version of events,\ndenying that they used excessive force against him.\nAnderson and Cochran testified that Thomas resisted the\nlockup and shouted racial epithets. Cochran acknowledged\nthat he handcuffed Thomas but denied using excessive force\nin doing so. Fitchpatrick echoed that Thomas had been\nshouting and swearing, and he too denied that Cochran used\nundue force. Anderson testified that he told Fitchpatrick that\nhe did not want anything to do with Thomas because of his\nprevious grievances against him. Fitchpatrick admitted\nknowing that Thomas had filed grievances against\nAnderson; Cochran testified that he did not know about the\ngrievances.\n Disciplinary proceedings against Thomas followed this\nincident. Cochran wrote Thomas up for resisting the lockup,\nmaking threats, being insolent, and disobeying a direct\norder. Officers Bailey and Sanders conducted the discipli-\nnary hearing on these charges; the parties disagree about\nwhat happened. According to Thomas, Bailey and Sanders\ntold him that “their hands were tied” and they “couldn’t”\nexonerate him. He testified that Sanders mentioned that he\nwas about to retire and did not want trouble, and Bailey said\nthat Thomas “shouldn’t have been making complaints about\nthe prison” if he did not want “to be in a situation like” this\none. Sanders denied saying that he found Thomas guilty\nbecause his “hands were tied” or that Thomas should not file\ngrievances. Likewise, Bailey denied warning Thomas against\ncomplaining about prison employees. Thomas was found\nguilty of the rules violations and received a month in segre-\n\fNo. 15-2830 5\n\ngation and then spent three months assigned to C grade, a\nmore restrictive confinement.\n The judge restricted the scope of the trial in several ways\nthat are relevant to this appeal. In lieu of admitting volumi-\nnous evidence of Thomas’s prior grievances, the judge\nrequired the parties to stipulate that Thomas had filed\nnumerous grievances against Anderson and others, and that\nhe also had sued Anderson. Over Thomas’s objection, the\njudge also refused to permit testimony about events before\nMarch 24. The judge barred the testimony of two of\nThomas’s proffered inmate witnesses, Kiante Simmons and\nXavier Landers, who were no longer in state prison. Thomas\nthought that they might be incarcerated elsewhere—perhaps\nthe Cook County Jail and an unnamed federal facility,\nrespectively—but this supposition was just speculation. In\nany event, even assuming that they were in custody some-\nwhere else, the judge was only willing to permit them to\ntestify via video conference; he would not order them pro-\nduced for in-person testimony.\n Early on in the case, the judge had denied Thomas’s sev-\neral requests for recruited pro bono counsel. Closer to trial,\nthe judge did not rule on Thomas’s requests to reconsider\nthose earlier decisions. Finally, at the close of the evidence,\nthe judge took several claims from the jury, granting the\ndefendants’ motion for judgment as a matter of law under\nRule 50 of the Federal Rules of Civil Procedure. In the end\nthe jury was asked to decide only if Anderson and Cochran\nhad used excessive force and, if so, whether Anderson had\nbeen motivated to do so by a desire to retaliate for Thomas’s\n\f6 No. 15-2830\n\nlawsuits and grievances. On these claims the jury returned a\nverdict for Anderson and Cochran. This appeal followed. 1\n II. Analysis\n We begin with Thomas’s argument that the judge was\nwrong to grant the defendants’ Rule 50 motion on two\nclaims: that Anderson and Cochran retaliated against him by\nissuing a phony disciplinary report and that Sanders and\nBailey retaliated against him by conducting a sham discipli-\nnary hearing. Judgment as a matter of law is justified only if\nafter a full hearing there is no “legally sufficient evidentiary\nbasis to find for the party on that issue.” FED. R. CIV.\nP. 50(a)(1); Lopez v. City of Chicago, 464 F.3d 711, 718 (7th Cir.\n2006). Because the judge overlooked testimony supporting\nThomas’s position and failed to view evidence in the light\nmost favorable to him, we reverse the judgment on these\nclaims.\n As to Anderson, the judge explained that “the only evi-\ndence relating to any retaliation” was Anderson telling\nFitchpatrick that he did not want anything to do with\nThomas because of his previous grievances. But Thomas’s\naccount of the encounter provided an evidentiary basis from\nwhich a reasonable jury could infer retaliatory motive.\nThomas testified that (1) Anderson called for an early lockup\nafter seeing him in the shower; (2) Anderson told Cochran to\nwrite Thomas a ticket for refusing to lock up, even though\nThomas did not refuse; and (3) when Thomas protested that\n\n\n1 We sua sponte recruited pro bono counsel for Thomas on appeal. Barry\nLevenstam, Remi J.D. Jaffre, and Jenner & Block LLP, accepted the\nappointment. They have ably discharged their duties. We thank them for\ntheir service to their client and the court.\n\fNo. 15-2830 7\n\nthe ticket was baseless, Anderson scoffed: “You should have\nthought about that before you made all of [your] complaints\nabout me and filing grievances about me in the prison.” It\nwas for the jury to decide which account to believe.\nPassananti v. Cook County, 689 F.3d 655, 659 (7th Cir. 2012)\n(noting that in assessing a Rule 50 motion, “[t]he court does\nnot make credibility determinations or weigh the evidence”);\nLopez, 464 F.3d at 720 (same). A jury could reasonably con-\nclude from Thomas’s version that Anderson orchestrated\nThomas’s “late” return to his cell to trump up a false disci-\nplinary charge in retaliation for Thomas’s past complaints.\n We reach a similar conclusion about Cochran. The judge\ngranted the Rule 50 motion on the retaliation claim against\nhim because he thought that there was no evidence that\nCochran knew of Thomas’s litigation. But Thomas testified\nthat Cochran was in the cell when Anderson told Thomas\nthat he should not have filed grievances and that Cochran\nhimself said that he “didn’t like inmates who tried to get\nstaff in trouble.” A jury could reasonably infer based on\nthese statements that Cochran helped call for an early lockup\nbefore Thomas finished showering as revenge for Thomas’s\ngrievances and lawsuits. See Gevas v. McLaughlin, 798 F.3d\n475, 477 (7th Cir. 2015) (assessing a Rule 50 motion requires\nthe court “to assume the truth of” the testimony of the\nnonmoving party).\n Finally, the jury should have been permitted to decide\nwhether Bailey and Sanders held a hearing that they knew\nwas a sham for the purpose of retaliating against Thomas.\nThe judge entered judgment in their favor on this claim\nbecause again he thought no evidence showed that these\ndefendants knew of Thomas’s past grievances. But retaliato-\n\f8 No. 15-2830\n\nry motive can be inferred from Thomas’s account of the\nhearing. See id. at 477, 481–82. Thomas testified that Bailey\ntold him that he “shouldn’t have been making complaints\nabout the prison” if he didn’t “want to be in [this] situation”\nand that his “hands were tied.” And he testified further that\nSanders agreed that his “hands were tied” and expressed\nconcern that conducting a fair hearing could interfere with\nhis retirement.\n Bailey and Sanders respond that Thomas’s testimony\nsuggests only that they were motivated by personal con-\ncerns, not by Thomas’s First Amendment activity. But a\nretaliation claim only requires evidence that the plaintiff’s\nprotected activity was “at least a motivating factor” for the\nretaliatory action. Perez v. Fenoglio, 792 F.3d 768, 783 (7th Cir.\n2015) (emphasis added) (quoting Bridges v. Gilbert, 557 F.3d\n541, 546 (7th Cir. 2009)). Thomas’s testimony, if a jury finds it\ncredible, could support an inference that retaliation for his\npast grievances was a motivating factor in their decision.\nViewed as a whole, there was sufficient evidence to present\nthis claim to the jury.\nA. Events Before March 24, 2011\n Thomas also contests the judge’s decision to bar testimo-\nny about events before March 24, 2011, and instead require\nthe parties to stipulate that Thomas had filed grievances\nagainst Anderson and other prison officials. Thomas pro-\nposed to introduce at trial more than 150 complaints and\ngrievances he had filed. The judge ruled that admitting that\nnumber of grievances could confuse the issues, prolong the\ntrial, and possibly prejudice the jurors. And apart from\nconcerns about the quantity, the judge worried that jurors\n\fNo. 15-2830 9\n\nwould be tempted to assess whether the grievances were\ntrue.\n Thomas contends that this restriction disabled him from\nshowing that his grievances actually motivated Anderson to\nretaliate against him. He argues that he could have used\nevidence from before March 24 to show that Anderson had\nthreatened to issue “bogus disciplinary reports” and physi-\ncally harm him if he did not stop filing grievances. In place\nof this evidence, Thomas says, the stipulation informed the\njury only that he had engaged in constitutionally protected\nactivity.\n That is not an accurate characterization of the stipulation.\nThe stipulation informed the jury in general terms of\nThomas’s grievance and complaints about prison conditions.\nIt also explained that Thomas had accused Anderson of\n“locking prisoners up in their cells earlier than the allowable\ntime, making racial comments to inmates and threatening\ninmates, including plaintiff, with punishment for making\ncomplaints about [Anderson].” That was enough to convey\nto the jury the basic background facts pertaining to the\nalleged retaliatory motive.\n Moreover, the judge was understandably concerned that\npermitting Thomas to introduce the entire record of his prior\ngrievances would bog down the proceedings and distract\nand potentially confuse the jurors. To avoid those risks, the\njudge reasonably concluded that the stipulation was an\nappropriate substitute for this evidence. See Marcus &\nMillichap Inv. Servs. of Chi., Inc. v. Sekulovski, 639 F.3d 301, 307\n(7th Cir. 2011). That ruling was well within the judge’s\nauthority to manage the efficiency of the trial by streamlin-\ning Thomas’s voluminous proposed evidence. See Whitfield\n\f10 No. 15-2830\n\nv. Int’l Truck & Engine Corp., 755 F.3d 438, 447 (7th Cir. 2014).\nWe see no abuse of discretion.\nB. Exclusion of Kiante Simmons and Xavier Landers\n Thomas also challenges the judge’s decision to exclude\nthe testimony of two inmate witnesses, Kiante Simmons and\nXavier Landers. In both instances the judge stated that the\nwitnesses must testify, if at all, using video-conferencing\ntechnology. Because Thomas did not produce video-\nconference addresses for Simmons and Landers, they did not\ntestify.\n First, to the extent that either witness would have testi-\nfied about events before March 24, 2011, their exclusion was\nharmless because the judge’s earlier ruling foreclosed that\nevidence. And contrary to Thomas’s argument on appeal,\nthe judge’s failure to apply the balancing test outlined in\nStone v. Morris, 546 F.2d 730 (7th Cir. 1976), was not reversi-\nble error. By its terms, Stone applies when a district judge\nmust decide whether a “plaintiff-prisoner in a civil rights\nsuit” should be brought to court for trial. We explained that\nthe judge should weigh the logistical difficulties and particu-\nlar security risks of transporting the plaintiff-prisoner\nagainst the prisoner’s interest in testifying in person and\nexamining the witnesses face-to-face. Id. at 735–36.\n We have not extended Stone’s particularized balancing\ntest to nonparty inmate witnesses. As we’ve explained more\nrecently, forcing a prisoner-plaintiff to try his case remotely\nby video conferencing raises special challenges—e.g., the\ninability of the prisoner-plaintiff to see jurors’ faces, the\ndifficulty in examining and evaluating witnesses, and the\ncomplications associated with communicating with the court\n\fNo. 15-2830 11\n\nand opposing counsel. See Perotti v. Quinones, 790 F.3d 712,\n725 (7th Cir. 2015). Those concerns do not affect nonparty\ninmate witnesses testifying live via video-conferencing\ntechnology.\n Instead, Rule 43(a) of the Federal Rules of Civil Proce-\ndure and 28 U.S.C. § 2241(c)(5) bear directly on this question.\nThe latter permits the court to issue a writ of habeas corpus\nwhen “[i]t is necessary to bring [a prisoner] to court to testify\nor for trial.” § 2241(c)(5). And under Rule 43(a), the judge\nhas discretion to allow live testimony by video for “good\ncause in compelling circumstances and with appropriate\nsafeguards.” Thornton v. Snyder, 428 F.3d 690, 698 (7th Cir.\n2005) (“Rule 43 affirmatively allows for testimony by vide-\noconference in certain circumstances … .”).\n Here, another inmate witness testified to the same infor-\nmation that Thomas says he wanted to cover with Simmons\nand Landers. The judge determined that Thomas’s interest in\ntheir testimony was outweighed by the expense and incon-\nvenience of transporting them for trial (assuming they could\nbe located and were in fact in custody). So he allowed them\nto testify, if at all, only by video. That ruling was well within\nhis discretion.\n Moreover, Thomas has not come close to establishing\nthat he was prejudiced by the absence of their testimony. See\nMason v. S. Ill. Univ. at Carbondale, 233 F.3d 1039, 1042–43\n(7th Cir. 2000) (explaining that the party challenging the\nexclusion of the evidence must record the grounds for\nadmissibility, content, and significance of the excluded\ntestimony). Thomas suggests that Simmons and Landers\nwould have recalled the March 24 altercation better than the\ninmate who testified in support of his story. But he has no\n\f12 No. 15-2830\n\nevidence to back up that assertion. Accordingly, the judge’s\nfailure to apply Stone’s particularized balancing test was not\nreversible error. 2\nC. Recruitment of Counsel\n Finally, Thomas argues that the judge abused his discre-\ntion by declining to recruit counsel to represent him. We\ndisagree. Thomas filed two requests for counsel in February\n2014 and February 2015. But neither request showed that he\ntried to obtain counsel on his own or that he was precluded\nfrom doing so. So the judge’s denial of these requests was\nnot an abuse of discretion. Pruitt v. Mote, 503 F.3d 647, 654–\n55 (7th Cir. 2007) (en banc); see Romanelli v. Suliene, 615 F.3d\n\n\n2 We note that the Third Circuit has said that the Stone balancing test\napplies to a request by a prisoner-plaintiff for production of nonparty\ninmate witnesses at a civil trial. Jerry v. Francisco, 632 F.2d 252, 255–56 (3d\nCir. 1980). But in Jerry the magistrate judge and the district court com-\npletely overlooked the prisoner-plaintiff’s motion to produce inmate\nwitnesses to testify at his civil-rights trial. The court held that “[i]t was\nclearly error to fail to act on the motion and exercise the discretion.” Id.\nat 256. More importantly, without analysis and in a single sentence, the\nThird Circuit imported the Stone balancing test to this situation. Id. (“We\nbelieve that the same considerations must be weighed in determining\nwhether a writ of habeas corpus ad testificandum should be issued to\nsecure the appearance of an incarcerated non-party witness at the\nrequest of an incarcerated plaintiff.”). The court did not pause to consid-\ner that the concerns underlying Stone—namely, safeguarding a prisoner-\nplaintiff’s access to the courts— are not implicated in precisely the same\nway when the inmate is a witness for the plaintiff rather than the plaintiff\nhimself. Finally, and most significantly, the Third Circuit was not con-\nfronted with the ready alternative of live inmate testimony by video-\nconferencing technology, which is now widely available and was the\nmode of testimony the judge settled on here. For these reasons, Jerry is\ndistinguishable.\n\fNo. 15-2830 13\n\n847, 851–52 (7th Cir. 2010) (explaining that the denial of a\nmotion to recruit counsel was justified by the district court’s\nfinding that the plaintiff had not tried to obtain counsel).\nAnd the judge did not limit his decision to that particular\ndefect; he also ruled that Thomas was competent to litigate\nhis own case.\n Before trial, Thomas twice more asked that the judge “re-\nconsider appointing counsel.” Although these requests\ncured the technical defect in the earlier ones—Thomas\nspecifically stated that he had tried unsuccessfully to find\ncounsel—the judge did not rule on them. But once a judge\nappropriately addresses and resolves a request for recruit-\nment of pro bono counsel, he need not revisit the question.\nPruitt, 503 F.3d at 658; cf. Childress v. Walker, 787 F.3d 433,\n442–43 (7th Cir. 2015) (finding that it was an abuse of discre-\ntion to act on neither of the plaintiff’s requests for counsel);\nDewitt v. Corizon, Inc., 760 F.3d 654, 657–59 (7th Cir. 2014)\n(finding that it was an abuse to deny the initial motions for\ncounsel without explaining the reasoning and then to ignore\nsubsequent requests). We find no error.\n III. Conclusion\n Accordingly, the judgment is REVERSED, and the case is\nREMANDED for further proceedings on the retaliation claims\nagainst Anderson, Cochran, Sanders, and Bailey. In all other\nrespects, the judgment is AFFIRMED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4358270/", "author_raw": "Diane S. Sykes"}]}	BAUER	ROVNER	SYKES	1		{"BAUER": ", Circuit", "ROVNER": ", Circuit", "SYKES": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4581017/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Michael Thomas v. Raymond Anderson\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-11\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 15-2830\nMICHAEL N. THOMAS,\n Plaintiff-Appellant,\n v.\n\nRAYMOND ANDERSON, et al.,\n Defendants-Appellees.\n ____________________\n\n Appeal from the United States District Court\n for the Central District of Illinois.\n No. 12-C-1343 — Joe Billy McDade, Judge.\n ____________________\n\n ARGUED FEBRUARY 7, 2018 — DECIDED NOVEMBER 14, 2018\n AS AMENDED ON PETITION FOR REHEARING JANUARY 11, 2019\n ____________________\n\n Before BAUER, ROVNER, and SYKES, Circuit Judges.\n SYKES, Circuit Judge. Michael Thomas, an Illinois prisoner\nformerly confined at Hill Correctional Center, alleged that\nprison guards attacked him with excessive force and that the\nbeating and subsequent disciplinary proceedings were in\nretaliation for lawsuits and grievances he filed. He sued the\nguards and other prison officials seeking damages under\n42 U.S.C. § 1983. In the course of pretrial proceedings, the\n\f2 No. 15-2830\n\ndistrict judge required the parties to stipulate to the events\npreceding the attack and ruled that certain inmate witnesses\nmust appear, if at all, by video conference. The judge also\ndeclined Thomas’s request for recruited counsel, determin-\ning that he was competent to litigate the suit pro se. At trial\nthe judge entered judgment as a matter of law for the de-\nfendants on all claims except those asserting excessive force\nby two officers. The jury decided those claims against\nThomas.\n On appeal Thomas contests the judge’s evidentiary rul-\nings, the decision not to recruit counsel, and the partial\njudgment for the defendants as a matter of law. Because\nThomas’s trial testimony allowed for a permissible inference\nof retaliation, the judge should not have taken the retaliation\nclaims from the jury. We reverse the judgment on those\nclaims. In all other respects, we affirm.\n I. Background\n Thomas’s lawsuit centers on an altercation that occurred\non March 24, 2011, at Hill Correctional. Thomas alleged that\ntwo prison guards, Raymond Anderson and Richard\nCochran, attacked him and that a third guard, Roger\nFitchpatrick, failed to intervene to stop the attack, all in\nviolation of his rights under the Eighth Amendment. He also\nclaimed that the officers violated the First Amendment by\nretaliating against him for his past grievances and lawsuits:\nAnderson, Cochran, and Fitchpatrick by assaulting him (or\nfailing to intervene); Anderson and Cochran by issuing\nphony disciplinary charges after the attack; and two hearing\nofficers, Cornealious Sanders and Scott Bailey, by finding\nhim guilty of the charges knowing that they were baseless.\n\fNo. 15-2830 3\n\n At trial Thomas testified to his version of the events on\nMarch 24 and the disciplinary proceeding that followed. He\ntestified that on the morning of March 24, he was showering\nbefore the morning lockup when Officers Anderson,\nCochran, and Fitchpatrick saw him and signaled—seven or\neight minutes early—that all inmates must immediately\nreturn to their cells. Thomas hurried, still soapy and partial-\nly undressed, to return to his cell. Cochran slammed the cell\ndoor shut before Thomas could enter, but the door bounced\nopen and he managed to slip inside. Anderson, Cochran,\nand Fitchpatrick followed, and Anderson told Cochran to\n“write that MF’er a ticket” for refusing to enter his cell after\nthe lockup signal. When Thomas protested, Cochran cor-\nnered him, cursing and screaming. Anderson then rebuked\nThomas, saying, “You should have thought about that\nbefore you made all of [your] complaints about me and\nfiling grievances about me in the prison.” Thomas had\npreviously filed grievances complaining that Anderson had\n(among other things) threatened to retaliate against him for\nnotifying prison administrators, legislators, and government\nofficials of problems at Hill, including safety and sanitation.\nCochran told him that he “didn’t like inmates who tried to\nget staff in trouble.”\n Thomas testified that after the officers entered his cell,\nCochran handcuffed him and Fitchpatrick ordered his\ncellmate to leave. Anderson then directed Cochran to teach\nThomas how to keep his “mouth closed and to not make the\nstaff upset.” Cochran pushed Thomas to the ground and\npunched him while a second guard “yanked” him. Thomas\ntold the jury that this second guard must have been\nAnderson because he could see Fitchpatrick standing back\n“egging them on.” The three guards then pulled Thomas\n\f4 No. 15-2830\n\nfrom his cell and threw him against the corridor walls before\nsending him to the segregation unit.\n The defendants disputed Thomas’s version of events,\ndenying that they used excessive force against him.\nAnderson and Cochran testified that Thomas resisted the\nlockup and shouted racial epithets. Cochran acknowledged\nthat he handcuffed Thomas but denied using excessive force\nin doing so. Fitchpatrick echoed that Thomas had been\nshouting and swearing, and he too denied that Cochran used\nundue force. Anderson testified that he told Fitchpatrick that\nhe did not want anything to do with Thomas because of his\nprevious grievances against him. Fitchpatrick admitted\nknowing that Thomas had filed grievances against\nAnderson; Cochran testified that he did not know about the\ngrievances.\n Disciplinary proceedings against Thomas followed this\nincident. Cochran wrote Thomas up for resisting the lockup,\nmaking threats, being insolent, and disobeying a direct\norder. Officers Bailey and Sanders conducted the discipli-\nnary hearing on these charges; the parties disagree about\nwhat happened. According to Thomas, Bailey and Sanders\ntold him that “their hands were tied” and they “couldn’t”\nexonerate him. He testified that Sanders mentioned that he\nwas about to retire and did not want trouble, and Bailey said\nthat Thomas “shouldn’t have been making complaints about\nthe prison” if he did not want “to be in a situation like” this\none. Sanders denied saying that he found Thomas guilty\nbecause his “hands were tied” or that Thomas should not file\ngrievances. Likewise, Bailey denied warning Thomas against\ncomplaining about prison employees. Thomas was found\nguilty of the rules violations and received a month in segre-\n\fNo. 15-2830 5\n\ngation and then spent three months assigned to C grade, a\nmore restrictive confinement.\n The judge restricted the scope of the trial in several ways\nthat are relevant to this appeal. In lieu of admitting volumi-\nnous evidence of Thomas’s prior grievances, the judge\nrequired the parties to stipulate that Thomas had filed\nnumerous grievances against Anderson and others, and that\nhe also had sued Anderson. Over Thomas’s objection, the\njudge also refused to permit testimony about events before\nMarch 24. The judge barred the testimony of two of\nThomas’s proffered inmate witnesses, Kiante Simmons and\nXavier Landers, who were no longer in state prison. Thomas\nthought that they might be incarcerated elsewhere—perhaps\nthe Cook County Jail and an unnamed federal facility,\nrespectively—but this supposition was just speculation. In\nany event, even assuming that they were in custody some-\nwhere else, the judge was only willing to permit them to\ntestify via video conference; he would not order them pro-\nduced for in-person testimony.\n Early on in the case, the judge had denied Thomas’s sev-\neral requests for recruited pro bono counsel. Closer to trial,\nthe judge did not rule on Thomas’s requests to reconsider\nthose earlier decisions. Finally, at the close of the evidence,\nthe judge took several claims from the jury, granting the\ndefendants’ motion for judgment as a matter of law under\nRule 50 of the Federal Rules of Civil Procedure. In the end\nthe jury was asked to decide only if Anderson and Cochran\nhad used excessive force and, if so, whether Anderson had\nbeen motivated to do so by a desire to retaliate for Thomas’s\n\f6 No. 15-2830\n\nlawsuits and grievances. On these claims the jury returned a\nverdict for Anderson and Cochran. This appeal followed. 1\n II. Analysis\n We begin with Thomas’s argument that the judge was\nwrong to grant the defendants’ Rule 50 motion on two\nclaims: that Anderson and Cochran retaliated against him by\nissuing a phony disciplinary report and that Sanders and\nBailey retaliated against him by conducting a sham discipli-\nnary hearing. Judgment as a matter of law is justified only if\nafter a full hearing there is no “legally sufficient evidentiary\nbasis to find for the party on that issue.” FED. R. CIV.\nP. 50(a)(1); Lopez v. City of Chicago, 464 F.3d 711, 718 (7th Cir.\n2006). Because the judge overlooked testimony supporting\nThomas’s position and failed to view evidence in the light\nmost favorable to him, we reverse the judgment on these\nclaims.\n As to Anderson, the judge explained that “the only evi-\ndence relating to any retaliation” was Anderson telling\nFitchpatrick that he did not want anything to do with\nThomas because of his previous grievances. But Thomas’s\naccount of the encounter provided an evidentiary basis from\nwhich a reasonable jury could infer retaliatory motive.\nThomas testified that (1) Anderson called for an early lockup\nafter seeing him in the shower; (2) Anderson told Cochran to\nwrite Thomas a ticket for refusing to lock up, even though\nThomas did not refuse; and (3) when Thomas protested that\n\n\n1 We sua sponte recruited pro bono counsel for Thomas on appeal. Barry\nLevenstam, Remi J.D. Jaffre, and Jenner & Block LLP, accepted the\nappointment. They have ably discharged their duties. We thank them for\ntheir service to their client and the court.\n\fNo. 15-2830 7\n\nthe ticket was baseless, Anderson scoffed: “You should have\nthought about that before you made all of [your] complaints\nabout me and filing grievances about me in the prison.” It\nwas for the jury to decide which account to believe.\nPassananti v. Cook County, 689 F.3d 655, 659 (7th Cir. 2012)\n(noting that in assessing a Rule 50 motion, “[t]he court does\nnot make credibility determinations or weigh the evidence”);\nLopez, 464 F.3d at 720 (same). A jury could reasonably con-\nclude from Thomas’s version that Anderson orchestrated\nThomas’s “late” return to his cell to trump up a false disci-\nplinary charge in retaliation for Thomas’s past complaints.\n We reach a similar conclusion about Cochran. The judge\ngranted the Rule 50 motion on the retaliation claim against\nhim because he thought that there was no evidence that\nCochran knew of Thomas’s litigation. But Thomas testified\nthat Cochran was in the cell when Anderson told Thomas\nthat he should not have filed grievances and that Cochran\nhimself said that he “didn’t like inmates who tried to get\nstaff in trouble.” A jury could reasonably infer based on\nthese statements that Cochran helped call for an early lockup\nbefore Thomas finished showering as revenge for Thomas’s\ngrievances and lawsuits. See Gevas v. McLaughlin, 798 F.3d\n475, 477 (7th Cir. 2015) (assessing a Rule 50 motion requires\nthe court “to assume the truth of” the testimony of the\nnonmoving party).\n Finally, the jury should have been permitted to decide\nwhether Bailey and Sanders held a hearing that they knew\nwas a sham for the purpose of retaliating against Thomas.\nThe judge entered judgment in their favor on this claim\nbecause again he thought no evidence showed that these\ndefendants knew of Thomas’s past grievances. But retaliato-\n\f8 No. 15-2830\n\nry motive can be inferred from Thomas’s account of the\nhearing. See id. at 477, 481–82. Thomas testified that Bailey\ntold him that he “shouldn’t have been making complaints\nabout the prison” if he didn’t “want to be in [this] situation”\nand that his “hands were tied.” And he testified further that\nSanders agreed that his “hands were tied” and expressed\nconcern that conducting a fair hearing could interfere with\nhis retirement.\n Bailey and Sanders respond that Thomas’s testimony\nsuggests only that they were motivated by personal con-\ncerns, not by Thomas’s First Amendment activity. But a\nretaliation claim only requires evidence that the plaintiff’s\nprotected activity was “at least a motivating factor” for the\nretaliatory action. Perez v. Fenoglio, 792 F.3d 768, 783 (7th Cir.\n2015) (emphasis added) (quoting Bridges v. Gilbert, 557 F.3d\n541, 546 (7th Cir. 2009)). Thomas’s testimony, if a jury finds it\ncredible, could support an inference that retaliation for his\npast grievances was a motivating factor in their decision.\nViewed as a whole, there was sufficient evidence to present\nthis claim to the jury.\nA. Events Before March 24, 2011\n Thomas also contests the judge’s decision to bar testimo-\nny about events before March 24, 2011, and instead require\nthe parties to stipulate that Thomas had filed grievances\nagainst Anderson and other prison officials. Thomas pro-\nposed to introduce at trial more than 150 complaints and\ngrievances he had filed. The judge ruled that admitting that\nnumber of grievances could confuse the issues, prolong the\ntrial, and possibly prejudice the jurors. And apart from\nconcerns about the quantity, the judge worried that jurors\n\fNo. 15-2830 9\n\nwould be tempted to assess whether the grievances were\ntrue.\n Thomas contends that this restriction disabled him from\nshowing that his grievances actually motivated Anderson to\nretaliate against him. He argues that he could have used\nevidence from before March 24 to show that Anderson had\nthreatened to issue “bogus disciplinary reports” and physi-\ncally harm him if he did not stop filing grievances. In place\nof this evidence, Thomas says, the stipulation informed the\njury only that he had engaged in constitutionally protected\nactivity.\n That is not an accurate characterization of the stipulation.\nThe stipulation informed the jury in general terms of\nThomas’s grievance and complaints about prison conditions.\nIt also explained that Thomas had accused Anderson of\n“locking prisoners up in their cells earlier than the allowable\ntime, making racial comments to inmates and threatening\ninmates, including plaintiff, with punishment for making\ncomplaints about [Anderson].” That was enough to convey\nto the jury the basic background facts pertaining to the\nalleged retaliatory motive.\n Moreover, the judge was understandably concerned that\npermitting Thomas to introduce the entire record of his prior\ngrievances would bog down the proceedings and distract\nand potentially confuse the jurors. To avoid those risks, the\njudge reasonably concluded that the stipulation was an\nappropriate substitute for this evidence. See Marcus &\nMillichap Inv. Servs. of Chi., Inc. v. Sekulovski, 639 F.3d 301, 307\n(7th Cir. 2011). That ruling was well within the judge’s\nauthority to manage the efficiency of the trial by streamlin-\ning Thomas’s voluminous proposed evidence. See Whitfield\n\f10 No. 15-2830\n\nv. Int’l Truck & Engine Corp., 755 F.3d 438, 447 (7th Cir. 2014).\nWe see no abuse of discretion.\nB. Exclusion of Kiante Simmons and Xavier Landers\n Thomas also challenges the judge’s decision to exclude\nthe testimony of two inmate witnesses, Kiante Simmons and\nXavier Landers. In both instances the judge stated that the\nwitnesses must testify, if at all, using video-conferencing\ntechnology. Because Thomas did not produce video-\nconference addresses for Simmons and Landers, they did not\ntestify.\n First, to the extent that either witness would have testi-\nfied about events before March 24, 2011, their exclusion was\nharmless because the judge’s earlier ruling foreclosed that\nevidence. And contrary to Thomas’s argument on appeal,\nthe judge’s failure to apply the balancing test outlined in\nStone v. Morris, 546 F.2d 730 (7th Cir. 1976), was not reversi-\nble error. By its terms, Stone applies when a district judge\nmust decide whether a “plaintiff-prisoner in a civil rights\nsuit” should be brought to court for trial. We explained that\nthe judge should weigh the logistical difficulties and particu-\nlar security risks of transporting the plaintiff-prisoner\nagainst the prisoner’s interest in testifying in person and\nexamining the witnesses face-to-face. Id. at 735–36.\n We have not extended Stone’s particularized balancing\ntest to nonparty inmate witnesses. As we’ve explained more\nrecently, forcing a prisoner-plaintiff to try his case remotely\nby video conferencing raises special challenges—e.g., the\ninability of the prisoner-plaintiff to see jurors’ faces, the\ndifficulty in examining and evaluating witnesses, and the\ncomplications associated with communicating with the court\n\fNo. 15-2830 11\n\nand opposing counsel. See Perotti v. Quinones, 790 F.3d 712,\n725 (7th Cir. 2015). Those concerns do not affect nonparty\ninmate witnesses testifying live via video-conferencing\ntechnology.\n Instead, Rule 43(a) of the Federal Rules of Civil Proce-\ndure and 28 U.S.C. § 2241(c)(5) bear directly on this question.\nThe latter permits the court to issue a writ of habeas corpus\nwhen “[i]t is necessary to bring [a prisoner] to court to testify\nor for trial.” § 2241(c)(5). And under Rule 43(a), the judge\nhas discretion to allow live testimony by video for “good\ncause in compelling circumstances and with appropriate\nsafeguards.” Thornton v. Snyder, 428 F.3d 690, 698 (7th Cir.\n2005) (“Rule 43 affirmatively allows for testimony by vide-\noconference in certain circumstances … .”).\n Here, another inmate witness testified to the same infor-\nmation that Thomas says he wanted to cover with Simmons\nand Landers. The judge determined that Thomas’s interest in\ntheir testimony was outweighed by the expense and incon-\nvenience of transporting them for trial (assuming they could\nbe located and were in fact in custody). So he allowed them\nto testify, if at all, only by video. That ruling was well within\nhis discretion.\n Moreover, Thomas has not come close to establishing\nthat he was prejudiced by the absence of their testimony. See\nMason v. S. Ill. Univ. at Carbondale, 233 F.3d 1039, 1042–43\n(7th Cir. 2000) (explaining that the party challenging the\nexclusion of the evidence must record the grounds for\nadmissibility, content, and significance of the excluded\ntestimony). Thomas suggests that Simmons and Landers\nwould have recalled the March 24 altercation better than the\ninmate who testified in support of his story. But he has no\n\f12 No. 15-2830\n\nevidence to back up that assertion. Accordingly, the judge’s\nfailure to apply Stone’s particularized balancing test was not\nreversible error. 2\nC. Recruitment of Counsel\n Finally, Thomas argues that the judge abused his discre-\ntion by declining to recruit counsel to represent him. We\ndisagree. Thomas filed two requests for counsel in February\n2014 and February 2015. But neither request showed that he\ntried to obtain counsel on his own or that he was precluded\nfrom doing so. So the judge’s denial of these requests was\nnot an abuse of discretion. Pruitt v. Mote, 503 F.3d 647, 654–\n55 (7th Cir. 2007) (en banc); see Romanelli v. Suliene, 615 F.3d\n\n\n2 We note that the Third Circuit has said that the Stone balancing test\napplies to a request by a prisoner-plaintiff for production of nonparty\ninmate witnesses at a civil trial. Jerry v. Francisco, 632 F.2d 252, 255–56 (3d\nCir. 1980). But in Jerry the magistrate judge and the district court com-\npletely overlooked the prisoner-plaintiff’s motion to produce inmate\nwitnesses to testify at his civil-rights trial. The court held that “[i]t was\nclearly error to fail to act on the motion and exercise the discretion.” Id.\nat 256. More importantly, without analysis and in a single sentence, the\nThird Circuit imported the Stone balancing test to this situation. Id. (“We\nbelieve that the same considerations must be weighed in determining\nwhether a writ of habeas corpus ad testificandum should be issued to\nsecure the appearance of an incarcerated non-party witness at the\nrequest of an incarcerated plaintiff.”). The court did not pause to consid-\ner that the concerns underlying Stone—namely, safeguarding a prisoner-\nplaintiff’s access to the courts— are not implicated in precisely the same\nway when the inmate is a witness for the plaintiff rather than the plaintiff\nhimself. Finally, and most significantly, the Third Circuit was not con-\nfronted with the ready alternative of live inmate testimony by video-\nconferencing technology, which is now widely available and was the\nmode of testimony the judge settled on here. For these reasons, Jerry is\ndistinguishable.\n\fNo. 15-2830 13\n\n847, 851–52 (7th Cir. 2010) (explaining that the denial of a\nmotion to recruit counsel was justified by the district court’s\nfinding that the plaintiff had not tried to obtain counsel).\nAnd the judge did not limit his decision to that particular\ndefect; he also ruled that Thomas was competent to litigate\nhis own case.\n Before trial, Thomas twice more asked that the judge “re-\nconsider appointing counsel.” Although these requests\ncured the technical defect in the earlier ones—Thomas\nspecifically stated that he had tried unsuccessfully to find\ncounsel—the judge did not rule on them. But once a judge\nappropriately addresses and resolves a request for recruit-\nment of pro bono counsel, he need not revisit the question.\nPruitt, 503 F.3d at 658; cf. Childress v. Walker, 787 F.3d 433,\n442–43 (7th Cir. 2015) (finding that it was an abuse of discre-\ntion to act on neither of the plaintiff’s requests for counsel);\nDewitt v. Corizon, Inc., 760 F.3d 654, 657–59 (7th Cir. 2014)\n(finding that it was an abuse to deny the initial motions for\ncounsel without explaining the reasoning and then to ignore\nsubsequent requests). We find no error.\n III. Conclusion\n Accordingly, the judgment is REVERSED, and the case is\nREMANDED for further proceedings on the retaliation claims\nagainst Anderson, Cochran, Sanders, and Bailey. In all other\nrespects, the judgment is AFFIRMED.\n[END_CASE]", "role": "user" } ]
4,581,018	Donald MAIER, Petitioner-Appellant, v. Judy P. SMITH, Respondent-Appellee.	Donald Maier v. Judy Smith	2019-01-11	18-2151	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Kanne, Rovner, Barrett", "parties": "", "opinions": [{"author": "Michael Stephen Kanne", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-2151\nDONALD MAIER,\n Petitioner-Appellant,\n v.\n\nJUDY P. SMITH,\n Respondent-Appellee.\n ____________________\n\n Appeal from the United States District Court for the\n Western District of Wisconsin.\n No. 17-cv-365 — Barbara B. Crabb, Judge.\n ____________________\n\n ARGUED SEPTEMBER 25, 2018 — DECIDED JANUARY 11, 2019\n ____________________\n\n Before KANNE, ROVNER, and BARRETT, Circuit Judges.\n KANNE, Circuit Judge. Donald Maier appeals the district\ncourt’s denial of his petition for habeas corpus relief from his\nconviction under Wisconsin’s stalking statute. Five years after\na jury convicted Maier of threatening two Wisconsin state\ncourt judges, Maier sent two sets of letters to the former ju-\nrors—ostensibly seeking their help in his eﬀort to obtain a\ngovernor’s pardon. Several of the jurors found the letters\nthreatening or disturbing. Maier was charged and convicted\n\f2 No. 18-2151\n\nunder Wisconsin’s stalking statute. After appealing his con-\nviction in the Wisconsin state courts, Maier brought this peti-\ntion. Because the Wisconsin Court of Appeals’ decision was\nnot objectively unreasonable, we aﬃrm the district court’s de-\nnial of Maier’s petition.\n I. BACKGROUND\n A jury convicted Donald Maier of threatening two Wis-\nconsin state court judges in 2006. In November 2011, Maier\nmailed a handwritten letter to the men and women who\nserved as jurors in that case. Due to a clerical error, Maier ob-\ntained the names and addresses of the jurors in his case. The\njurors were not expecting his correspondence. The letter’s\nopening line announced, “Jury Duty is Not Over.” (all quota-\ntions include the letters’ original spelling, capitalization, and\npunctuation). The letter informed the jurors that after being\n“skrewed” and serving two years in prison, Maier was “going\nfor a Pardon with the Governor’s oﬃce.” The letter included\na handwritten questionnaire inviting the jurors to respond to\na series of “yes” or “no” questions. The first question asked\nthe jurors if they believed that Wood County “did a Profes-\nsional Job? Such as keeping your Name’s and addresses from\nsomeone like [Maier]?” Maier reminded the jurors that they\nhelped put him in prison, and observed, “Real good people in\nthere.” Maier’s next question asked the jurors whether he\ncould give the list of their names and addresses to the “people\n[Maier] had to live with?” Maier’s questionnaire then ad-\ndressed a litany of injustices he believed he suﬀered during\nhis prosecution, trial, and incarceration for the 2006 charges.\nMaier emphasized his mistreatment and mentioned his place-\nment in mental institutions.\n\fNo. 18-2151 3\n\n After airing his grievances, Maier finally asked the jurors\nwhether they believed they did the right thing in sending him\nto prison. Maier advised the jurors, “My story will be heard\nnation wide soon. Your names could be too. Because you\nhelped in the Judge Zappen conspiracy[.]” He closed the letter\nby encouraging the jurors to “do the right thing” and to mail\ntheir questionnaires to the governor’s Pardon Advisory Board\nand a copy to Maier, himself. He assured the jurors, “The\nsooner I get justice will be when everybody in the Wisconsin\nRapids police cover-up and the Judge Zappen conspiracy will\nget peace ‘No more letters’[.]”\n Maier mailed his missive, questionnaire, and pardon ap-\nplication to all 13 jurors. Three letters were returned as unde-\nliverable. Upon receipt, several of the former jurors immedi-\nately called the police. One of the former jurors and her hus-\nband, a police oﬃcer, contacted the Wood County Sheriﬀ’s\nDepartment to complain about the letter. She feared that\nMaier might retaliate against her for her role in his conviction.\nSheriﬀʹs Deputy Scott Goldberg drafted a report documenting\nthe complaint and in his report stated, ʺ[a]fter reading\nthrough the questions, none of the questions are actually\nthreatening but Oﬃcer Machon said he and his wife were ex-\ntremely concerned about the questions that were asked and\njust the fact that they were being contacted by this subject.ʺ\n A local newspaper later ran a one-sentence bulletin noting\nthat a female juror received a threatening letter from a man on\nwhose trial she served. The newspaper account caught\nMaier’s attention. He clipped the item and included it in a sec-\nond letter to the jurors, dated November 14, 2011. The second\nletter opened, “I read the paper too. My letter was not threat-\nening in anyway. I just want to let you see what kind of Idiots\n\f4 No. 18-2151\n\nyou helped put me in prison.” Maier then criticized the judges\ninvolved in the 2006 aﬀair and wrote, “’You have Nothing to\nfear from me’[.]” He closed his second letter by encouraging\nthe jurors to contact his state representative or the governor’s\noﬃce, and signed oﬀ as “Your friend from Planet of the Apes\nCourthouse In downtown Zappenville[.]”\n After Maier sent the second letter, the state charged him\nwith ten counts of stalking in violation of Wisconsin Statute\n§ 940.32—one count for each of the jurors who received his\nletters.\n A new jury convicted Maier on six of the ten counts and\nacquitted him on four counts. Maier was sentenced to fifteen\nyears in prison and twelve years of extended supervision.\n Maier moved the trial court for post-conviction relief. His\nmotion raised a litany of arguments, including the same four\narguments he brings in this petition. The trial court held a\nhearing and denied Maier’s motion. He then appealed both\nthe trial court’s denial of his motion and his conviction to the\nWisconsin Court of Appeals. State v. Maier, No. 2013AP1391–\nCR, 2014 WL 1810151 1 (Wis. Ct. App. May 8, 2014). It af-\nfirmed Maier’s conviction. Maier then appealed to the Wis-\nconsin Supreme Court, which denied review of his case.\nMaier unsuccessfully petitioned the United States Supreme\nCourt for a writ of certiorari. Maier v. Wisconsin, 136 S. Ct. 2011\n(2016). Maier then petitioned for federal post-conviction re-\nview under 28 U.S.C. § 2254. The district court denied his pe-\ntition and issued a certificate of appealability on May 2, 2018.\nMaier v. Tegels, No. 17-CV-365-BBC, 2018 WL 2049824, at 8\n(W.D. Wis. May 2, 2018). This appeal followed.\n\fNo. 18-2151 5\n\n II. ANALYSIS\n We review a district courtʹs denial of a habeas petition de\nnovo. Saxon v. Lashbrook, 873 F.3d 982, 987 (7th Cir. 2017). We\nreview issues of fact for clear error. Adams v. Bertrand, 453 F.3d\n428, 432 (7th Cir. 2006). Maier’s petition for habeas corpus re-\nlief is governed by the Antiterrorism and Eﬀective Death Pen-\nalty Act of 1996 (AEDPA). AEDPA provides that habeas peti-\ntions shall not be granted unless the adjudication of the claim\nresulted in a decision that was 1) contrary to, or 2) involved\nan unreasonable application of Federal law clearly estab-\nlished in the holdings of the Supreme Court, or 3) resulted in\na decision that was based on an unreasonable determination\nof the facts in light of the evidence presented in the state court\nproceeding. See 28 U.S.C. § 2254; Harrington v. Richter, 562 U.S.\n86, 100 (2011).\n We review the Wisconsin Court of Appeals’ opinion,\nwhich was the last reasoned state-court decision on the mer-\nits. Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). “[O]n habeas\nreview, federal courts are usually limited to a deferential re-\nview of the reasonableness, rather than the absolute correct-\nness, of a state court decision.” Mosley v. Atchison, 689 F.3d\n838, 844 (7th Cir. 2012) (citing Richter, 562 U.S. at 101–102\n(2011)). “For purposes of reasonableness review, ‘a state pris-\noner must show that the state courtʹs ruling on the claim being\npresented in federal court was so lacking in justification that\nthere was an error well understood and comprehended in ex-\nisting law beyond any possibility for fairminded disagree-\nment.’” Id. (quoting Richter, 562 U.S. at 103).\n Wisconsin’s stalking statute prohibits,\n intentionally engag[ing] in a course of conduct di-\n rected at a specific person that would cause a\n\f6 No. 18-2151\n\n reasonable person under the same circumstances to\n suﬀer serious emotional distress or to fear bodily in-\n jury to or the death of himself or herself or a member\n of his or her family or household.\nWis. Stat. § 940.32(2)(a). The state must prove the defendant\nknew or should have known that one of his or her acts would\nlikely cause the victim serious emotional distress. Id. at\n§ 940.32(2)(b). The acts must have also actually caused the vic-\ntim serious emotional distress. Id. at § 940.32(2)(c).\n Maier challenges his conviction in four ways. First, Maier\nclaims he received ineﬀective assistance of counsel because\nhis trial counsel failed to introduce evidence that Maier be-\nlieves would have negated crucial elements of the Wisconsin\nstalking statute. Second, he argues that the Wisconsin stalking\nstatute—as it was applied to him—violated the First Amend-\nment. Third, Maier contends that the jury instructions given\nby the trial court misstated Wisconsin law with respect to the\n“true threats” test. According to Maier, the erroneous jury in-\nstructions failed to hold the state to its burden of proof and\ndeprived him of his Fourteenth Amendment right to due pro-\ncess of law. Lastly, he claims the state presented insuﬃcient\nevidence to support his conviction. We review each argument\nin turn under AEDPA’s deferential standard of review.\n A. Maier Received Eﬀective Assistance of Counsel\n Maier argues he received ineﬀective assistance of counsel\nbecause his trial attorney failed to introduce evidence that\nMaier believes would have aided his defense. Specifically,\nMaier claims that his trial counsel should have introduced ev-\nidence showing that he was genuinely applying for a pardon\nand evidence that a few people—including law enforcement\noﬃcials—did not find the first letter threatening.\n\fNo. 18-2151 7\n\n ʺTo establish ineﬀective assistance of trial counsel, a peti-\ntioner must show that counsel’s performance was deficient\nand that the deficient performance prejudiced his defense.”\nJohnson v. Thurmer, 624 F.3d 786, 791 (7th Cir. 2010) (citing\nStrickland v. Washington, 466 U.S. 668, 689–92 (1984)). We start\nour review assuming that Maier’s counsel “rendered ade-\nquate assistance and made all significant decisions in the ex-\nercise of reasonable professional judgment.” Id. (quoting\nStrickland, 466 U.S. at 690). To overcome that assumption,\nMaier must show that this trial counsel’s representation “‘fell\nbelow an objective standard of reasonableness’ based on pre-\nvailing norms of professional conduct.” Id. (quoting Strick-\nland, 466 U.S. at 688). “In cases such as this, where counsel has\nsucceeded in having his client acquitted of at least one of the\ncharges brought, the presumption is likely to be even more\ndiﬃcult to rebut.” United States v. Banks, 405 F.3d 559, 568 (7th\nCir. 2005). Maier must also establish that the deficient perfor-\nmance prejudiced him by demonstrating that, “there is a rea-\nsonable probability that, but for counsel’s unprofessional er-\nrors, the result of the proceeding would have been diﬀerent.\nA reasonable probability is a probability suﬃcient to under-\nmine confidence in the outcome.” Strickland, 466 U.S. at 694.\n In this case, Maier contends that two types of evidence\nshould have been introduced to help negate the stalking stat-\nute’s mens rea element. First, Maier believes that his attorney\nshould have introduced testimony from Maier’s neighbor and\ndocuments related to his pardon application. Maier explains\nthat he discussed his pardon application and the letters with\nhis neighbor and that the two traveled to Madison together to\npick up the necessary paperwork. According to Maier, his\nneighbor could have testified to Maier’s sincerity in seeking\nthe pardon and his lack of animosity toward the jurors.\n\f8 No. 18-2151\n\nSimilarly, his attorney could have identified documents sub-\nstantiating his pursuit of a pardon. Maier believes this evi-\ndence could have helped prove that he did not actually intend\nfor the letters to threaten.\n Second, Maier believes that his attorney performed defi-\nciently by not introducing evidence of Wisconsin law enforce-\nment oﬃcials’ reactions to the letters. Specifically, Maier\nthinks his attorney should have introduced Deputy Gold-\nberg’s incident report into evidence. Maier argues this was\nrelevant to show that at least one person who read the first\nletter did not find it threatening. Maier also argues that the\nfact that he was not contacted by law enforcement after send-\ning the first letter indicates that letter was not threatening.\n The Wisconsin Court of Appeals addressed and rejected\nthese arguments. With respect to evidence of Maier’s desire\nfor a pardon, the court determined that Maier was not preju-\ndiced by his counselʹs failure to put on the evidence, noting\nthat whether Maier earnestly desired a pardon is irrelevant to\nthe fact that he should have known that jurors would perceive\nhis letters as threatening. Further, the court of appeals rea-\nsoned that Maier could have simultaneously sincerely desired\na pardon and intended to threaten the jurors into supporting\nhis application.\n The court of appeals also rejected Maier’s argument that\nhis trial counsel performed deficiently by failing to introduce\nevidence of law enforcement oﬃcials’ reactions to the letters.\nThe court of appeals observed that the reportʹs significance\npaled in comparison to the letters themselves and the jurors’\ntestimony about the letters’ impact. Further, the court pointed\nout that the deputy sheriﬀ’s report only stated that none of\nthe first letterʹs questions were actually threatening—the\n\fNo. 18-2151 9\n\nreport did not characterize the first letter as a whole or both\nletters taken together as non-threatening. The district court\nsimilarly remarked that it is hard to know, exactly, how this\nevidence would have helped Maier: the impressions of law\nenforcement oﬃcers provide little perspective on whether\nMaier should have known that his letters would have been\nperceived as threatening by the jurors.\n We agree. As noted above, the statute criminalizes behav-\nior that ʺwould cause a reasonable person under the same cir-\ncumstances to suﬀer serious emotional distress[.]” Wis. Stat.\n§ 940.32(2)(a) (emphasis added). Given that the statute fo-\ncuses on the impact of Maier’s conduct on those it targeted, it\nis hard to understand how failing to introduce evidence of\nnon-jurors’ impressions could have harmed Maierʹs defense\nto such an extent that it changed the outcome. Consequently,\nMaier fails to show that the court of appeals’ determination\nthat he received eﬀective assistance of counsel was unreason-\nable.\n B. The Court of Appealsʹ First Amendment Analysis was Rea-\n sonable\n Maier urges that Wisconsin’s stalking statute was uncon-\nstitutional as the state applied it against him. Specifically,\nMaier argues that his conviction under the statute punished\nhim for unintentional threats: speech protected by the First\nAmendment. In support of his claim, Maier contends the Su-\npreme Court has established that the ʺtrue threatsʺ exception\nto the First Amendment requires the state to prove that the\nspeaker actually intends to threaten others. Unfortunately for\nMaier, we do not agree that the Supreme Court clearly estab-\nlished a standard for the true threats doctrine, and conse-\nquently his claim fails.\n\f10 No. 18-2151\n\n Although the First Amendment generally protects the\nright to free speech, this protection does not extend to all\nspeech. “[T]he First Amendment does not preclude re-\nstrictions on certain categories of speech having little or no\nsocial value, and threats are one such category.” United States\nv. Parr, 545 F.3d 491, 496–497 (7th Cir. 2008) (citing Virginia v.\nBlack, 538 U.S. 343, 358–59 (2003)). “A statement qualifies as a\n‘true threat,’ unprotected by the First Amendment, if it is ‘a\nserious expression of an intent to commit an act of unlawful\nviolence to a particular individual or group of individuals.’”\nId. at 497 (quoting Black, 538 U.S. at 359). Black involved a con-\nstitutional challenge to Virginiaʹs cross burning statute and\nthe Supreme Court produced a handful of splintered opinions\nattempting to articulate the proper standard.\n Before Black, this and other circuits employed an objective\n“reasonable person” standard to determine whether speech\nconstituted a true threat. See id. at 499; see also United States v.\nFuller, 387 F.3d 643, 647 (7th Cir. 2004) (“[T]he objective, rea-\nsonable person standard does not tread on free speech.”). Un-\nder that approach, courts would ask whether either a reason-\nable speaker would expect his words to be interpreted as a\nthreat or whether a reasonable listener would interpret the\nspeaker’s words to be a threat. Parr, 545 F.3d at 499. After\nBlack, however, we and other courts have wondered whether\nspeech only qualifies as a true threat if the speaker subjec-\ntively intended his words to be threatening. Id. at 499–500.\n The Wisconsin courts employed a double-objective stand-\nard in Maier’s case—meaning the state had to satisfy the ob-\njective standard from the perspectives of both the speaker and\nthe listener. Maier contends Black rendered this approach un-\nconstitutional and that the state should have been required to\n\fNo. 18-2151 11\n\nmeet its burden of proof under the subjective standard. Alt-\nhough our opinion in Parr recognized that “it is more likely\n[after Black] that an entirely objective definition [of true\nthreats] is no longer tenable[,]” the Supreme Court has not\nmade that ultimate determination. Id. at 500.\n In this habeas corpus action, Maier must show that the\nstate courtʹs adjudication of his case resulted in a decision that\nwas “contrary to, or involved an unreasonable application of,\nclearly established Federal law, as determined by the Supreme\nCourt.” 28 U.S.C. § 2254(d)(1). Additionally, as the Wisconsin\nCourt of Appeals noted, a majority of courts that addressed\nthe issue determined that the objective approach remains vi-\nable after Black. See Maier, 2014 WL 1810151 at 5; see also\nUnited States v. Elonis, 730 F.3d 321, 330 (3d Cir. 2013). Because\nthe Supreme Court has not definitively answered the ques-\ntion, Wisconsin’s interpretation of that doctrine is not con-\ntrary to or an unreasonable application of clearly established\nFederal law.\n C. The Jury Instructions Held the State to Its Burden of Proof\n Maier also argues he was deprived of his right to due pro-\ncess because the jury instructions allegedly misstated Wiscon-\nsin law and eﬀectively relieved the state of its burden of proof.\nMaier contends that the instructions failed to properly articu-\nlate Wisconsin’s “true threat” standard, as established by the\nWisconsin Supreme Court in State v. Perkins, 626 N.W.2d 762,\n770 (Wis. 2001).\n A defendant’s right to due process guarantees that the\nstate must prove every element of the alleged crime beyond a\nreasonable doubt. Middleton v. McNeil, 541 U.S. 433, 437\n(2004). A jury instruction violates due process if it fails to give\n\f12 No. 18-2151\n\neﬀect to this requirement. Id. However, habeas precedent\nplaces an especially heavy burden on a defendant seeking to\nshow constitutional error from a jury instruction that quotes\nstate law. Waddington v. Sarausad, 555 U.S. 179, 190 (2009); Bur-\nris v. Smith, 819 F.3d 1037, 1041 (7th Cir. 2016). “[N]ot every\nambiguity, inconsistency, or deficiency in a jury instruction\nrises to the level of a due process violation.” Middleton, 541\nU.S. at 437. Maier must show both that the instruction was\ndeficient and that “there was a reasonable likelihood that the\njury applied the instruction in a way that relieved the State of\nits burden of proving every element of the crime beyond a\nreasonable doubt.” Waddington, 555 U.S. at 190 (internal quo-\ntations omitted). We must determine, “whether the ailing in-\nstruction by itself so infected the entire trial that the resulting\nconviction violates due process.” Estelle v. McGuire, 502 U.S.\n62, 72 (1991).\n In Perkins, the Wisconsin Supreme Court addressed jury\ninstructions administered in the trial of a man accused of\nthreatening a judge in violation of state law. See Wis. Stat.\n§ 940.203. Under that statute, the state bore the burden of\nproving the defendant threatened to cause bodily harm to a\njudge. See Perkins, 626 N.W.2d at 771. The Wisconsin Supreme\nCourt deemed the jury instructions in that case insuﬃcient\nbecause they failed to define “threaten[ing] to cause bodily\nharm.” Id. at 772. Specifically,\n the jury was not instructed that it had to apply an\n objective test in the first element to determine\n whether the defendant had ‘threatened to cause\n bodily harm,’ that is, that a speaker would reasona-\n bly foresee that a listener would reasonably inter-\n pret the statement to be a serious expression of a\n purpose to inflict bodily harm, as distinguished\n\fNo. 18-2151 13\n\n from hyperbole, jest, innocuous talk, expressions of\n political views, or other similarly protected speech.\n\nId.\n The Perkins court held that without language explaining\nthe statuteʹs use of the narrower, legal definition of\n“threaten,” a reasonable likelihood existed that the jury inter-\npreted and applied the given instruction to the detriment of\nPerkins’ right to free speech. Id. at 773.\n According to Maier, a similar thing happened here. He\npins the jury instructions’ deficiency on their definition of “se-\nrious emotional distress.” The instructions quoted the stalk-\ning statute and explained that a defendant causes the victim\nto experience serious emotional distress if his course of con-\nduct caused the victim to “feel terrified, intimidated, threat-\nened, harassed, or tormented.” Wis. Stat. § 940.32(1)(d). Maier\nclaims that this definition of serious emotional distress in the\ninstructions eﬀectively allowed the jury to convict him for\ngenerally threatening (but constitutionally protected) lan-\nguage. He insists the instructions should have included the\nPerkins language distinguishing a serious expression of a pur-\npose to inflict bodily harm from “hyperbole, jest, innocuous\ntalk, expressions of political views, or other similarly pro-\ntected speech.” Perkins, 626 N.W.2d at 772.\n The Wisconsin Court of Appeals disagreed. It explained\nthat Perkins required that the state must prove true threats on\nan objective standard from the perspective of both the listener\nand the speaker. See Maier, 2014 WL 1810151 at 4. The court\nnoted that the instructions told the jury to find Maier guilty\nonly if his letters would have caused a reasonable person in\nthe position of the 2006 jurors to experience serious emotional\ndistress and explained that this satisfied the objective\n\f14 No. 18-2151\n\nstandard from the jurors’ perspective. The court also observed\nthat the instructions told the jury to find Maier guilty only if\nhe knew or should have known that his letters would have\ncaused the 2006 jurors to suﬀer serious emotional distress.\nThus, the court determined that the instructions administered\nin this case met Perkinsʹ demand by applying the objective ap-\nproach to both the speaker (Maier) and the listeners (the 2006\njurors).\n Lastly, as to Maierʹs argument that he was entitled to an\ninstruction with verbiage from the Perkins decision, the court\nof appeals distinguished between Wisconsin’s stalking statute\nand the statute at issue in Perkins, noting that the Perkins opin-\nion itself acknowledged that the true threats test required\nmodification for diﬀerent statutes. See Perkins, 626 N.W.2d. at\n770.\n We agree that the jury instructions accurately stated the\nelements of the crime. With respect to the true threats stand-\nard, the instructions included the essential elements of the\ndouble objective standard articulated by the Wisconsin Su-\npreme Court. In Perkins, the Wisconsin Supreme Court ex-\npressed concern that jury instructions did not inform the jury\nthat it had to apply an objective test to determine whether the\ndefendant in that case threatened a judge. Perkins, 626 N.W.2d\nat 772. In this case, the jury instructions included the double\nobjective standard demanded by Perkins. Although the jury\ninstructions did not mirror the language used in Perkins, the\ncourt of appeals made a reasonable determination that the\ngiven instructions provided a suﬃcient, albeit modified, ar-\nticulation of the Perkins true threats standard in the context of\nthe stalking statute. Because Perkins is not an unreasonable\napplication of clearly established Supreme Court precedent,\n\fNo. 18-2151 15\n\nand because the jury instruction was consistent with Perkins,\nthe jury instructions did not violate due process.\n D. The State Presented Suﬃcient Evidence to Convict Maier\n Finally, Maier contends that, even if an objective-intent\nstandard is permissible, the state produced insufficient evi-\ndence to support his conviction under that standard. He ar-\ngues the court of appeals’ opinion fails in three main ways.\nFirst, the court of appeals failed to apply the sufficiency stand-\nard with explicit reference to the Perkins standard, and its\nopinion is therefore contrary to Jackson v. Virginia, 443 U.S.\n307, 316 (1979). Second, the court of appeals only considered\nisolated passages from Maier’s letters to the jurors and not\n“all of the evidence at trial” that should have been considered.\nLastly, Maier attempts to argue that the court of appeals’\nopinion relied on an unreasonable reading of his letters. All\nthese arguments fail.\n Fourteenth Amendment due process requires that the\nstate must present sufficient evidence to prove each element\nof an alleged crime. See Jackson, 443 U.S. at 326. The crime’s\nsubstantive elements are defined by state law. Id. at 324 n.16.\nSufficiency of the evidence is reviewed under a different\nstandard on federal habeas review than on direct appeal be-\nfore the state court. “[T]he state appellate court determines\nwhether any rational trier of fact could have found the evi-\ndence sufficient; … a federal court may only overturn the ap-\npellate courtʹs finding of sufficient evidence if it was objec-\ntively unreasonable.” Saxon, 873 F.3d at 988. To warrant relief,\nthe state court’s application of federal law “must be ‘some-\nthing like lying well outside the boundaries of permissible\ndifferences of opinion.’” Id. at 987 (quoting Jackson v. Frank,\n348 F.3d 658, 662 (7th Cir. 2003)).\n\f16 No. 18-2151\n\n Maier contends that the court of appeals failed to specifi-\ncally find that the evidence satisfied the Perkins standard. His\nargument here is hard to follow. We understand his argument\nto be similar to his objection to the jury instructions: the court\nof appeals failed to apply the “true threats” language used in\nPerkins, and the evidence presented could not satisfy the\nstandard articulated in that case. However, we believe the\ncourt of appeals reasonably applied Perkins’ requirements.\nMaier might also be arguing that, because Perkins violates Su-\npreme Court precedent, the court of appeal’s sufficiency of\nthe evidence analysis was fatally flawed. In any event, we\nconclude that the court of appeals’ analysis was not objec-\ntively unreasonable.\n The court of appeals’ decision effectively applied the suf-\nficiency standard in this case with reference to each of the el-\nements of the stalking statute—including Perkins’ double ob-\njective standard. Moreover, the opinion points to evidence\nthat satisfies the objective standard from the perspective of a\nreasonable listener. The court of appeals’ opinion identified\nspecific language in both letters and gave examples of how\nthat evidence supported the jury’s finding that “a reasonable\nperson in the position of the 2006 jurors would have under-\nstood the letters to be threatening.” State v. Maier, 2014 WL\n1810151 at 9.\n And the court of appeals’ opinion implicitly but neces-\nsarily found that the evidence satisfied the objective standard\nfrom Maier’s perspective. The court held that the jury could\nhave reasonably determined that each letter was inde-\npendently threatening. Id. at 10. As the state points out,\nMaier sent a second letter to the jurors after learning from the\nnewspaper that at least one of the jurors found his first letter\n\fNo. 18-2151 17\n\nto be threatening and called law enforcement. This suggests\nthat at least with respect to the second letter, Maier was on\nnotice that the jurors would suffer serious emotional distress\nbecause of his communications. Significantly, one of Maier’s\nquestions in the first letter—the question asking jurors\nwhether they thought that Wood County acted professionally\nby distributing their names and addresses to Maier—indi-\ncates that Maier likely knew he should not be writing the ju-\nrors in the first place. And even aside from the content of\nMaier’s letters, consider, for example, what his very act of\nmailing the first letter communicated to the jurors: I know\nwho you are, I know you helped put me behind bars, and I\nknow where you live. Likewise, and without considering the\ncontent of Maier’s written words, his second letter communi-\ncated that he knew one of the jurors complained and that he\nwas paying attention. The court of appeals reasonably con-\ncluded that the state presented sufficient evidence to support\nMaier’s conviction.\n Maier also claims the court of appeals failed to consider all\nthe evidence available at trial, and instead only focused on\nisolated passages in his letters. He argues that, when the to-\ntality of the evidence is considered, the letters could have\nbeen viewed as nonthreatening. The Wisconsin Court of Ap-\npeals’ opinion focused on whether the facts presented at trial\njustified the juryʹs determination; it likewise focused on the\nportions of the record that support the juryʹs finding. This was\nappropriate because the court of appeals was required to view\nall the evidence in a manner favorable to the state and the con-\nviction. See State v. Poellinger, 451 N.W.2d 752 (Wis. 1990); see\nalso McDaniel v. Brown, 558 U.S. 120, 133 (2010). This focus\ndoes not, as Maier argues, ignore evidence more favorable to\nhim. Instead, the court acknowledged—but rejected—Maier’s\n\f18 No. 18-2151\n\ncharacterization of the letters. See Maier, 2014 WL 1810151 at\n8-9. None of Maier’s alternative explanations for his letters\nprovides so convincing an explanation that we deem the court\nof appeals’ opinion to be objectively unreasonable.\n Lastly, Maier attempts to argue that the court of appeals’\nopinion reflects an unreasonable interpretation of his letters.\nConsequently, he contends the opinion provides an unrea-\nsonable determination of the facts in light of the evidence pre-\nsented. See 28 U.S.C. § 2254(d)(2). Again, the court of appeals\nproperly reviewed the record in a light most favorable to the\nprosecution and conviction. The court’s opinion was not un-\nreasonable because it failed to construe the evidence as Maier\nwished—in a light most favorable to him. See Maier, 2014 WL\n1810151 at 9. Given this standard, we believe that the court’s\nopinion provided a reasonable application of this case’s facts.\n III. CONCLUSION\n Based on the foregoing, we believe the Wisconsin Court of\nAppeals did not unreasonably reject Maier’s numerous\nclaims. Maier failed to demonstrate that his conviction under\nthe stalking statute was contrary to, or involved an unreason-\nable application of, clearly established Federal law. Nor has\nhe demonstrated that the decision was based on an unreason-\nable determination of the facts in light of the evidence pre-\nsented at trial. AFFIRMED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4358271/", "author_raw": "Michael Stephen Kanne"}]}	KANNE	ROVNER	BARRETT	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4581018/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Donald MAIER, Petitioner-Appellant, v. Judy P. SMITH, Respondent-Appellee.\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-11\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-2151\nDONALD MAIER,\n Petitioner-Appellant,\n v.\n\nJUDY P. SMITH,\n Respondent-Appellee.\n ____________________\n\n Appeal from the United States District Court for the\n Western District of Wisconsin.\n No. 17-cv-365 — Barbara B. Crabb, Judge.\n ____________________\n\n ARGUED SEPTEMBER 25, 2018 — DECIDED JANUARY 11, 2019\n ____________________\n\n Before KANNE, ROVNER, and BARRETT, Circuit Judges.\n KANNE, Circuit Judge. Donald Maier appeals the district\ncourt’s denial of his petition for habeas corpus relief from his\nconviction under Wisconsin’s stalking statute. Five years after\na jury convicted Maier of threatening two Wisconsin state\ncourt judges, Maier sent two sets of letters to the former ju-\nrors—ostensibly seeking their help in his eﬀort to obtain a\ngovernor’s pardon. Several of the jurors found the letters\nthreatening or disturbing. Maier was charged and convicted\n\f2 No. 18-2151\n\nunder Wisconsin’s stalking statute. After appealing his con-\nviction in the Wisconsin state courts, Maier brought this peti-\ntion. Because the Wisconsin Court of Appeals’ decision was\nnot objectively unreasonable, we aﬃrm the district court’s de-\nnial of Maier’s petition.\n I. BACKGROUND\n A jury convicted Donald Maier of threatening two Wis-\nconsin state court judges in 2006. In November 2011, Maier\nmailed a handwritten letter to the men and women who\nserved as jurors in that case. Due to a clerical error, Maier ob-\ntained the names and addresses of the jurors in his case. The\njurors were not expecting his correspondence. The letter’s\nopening line announced, “Jury Duty is Not Over.” (all quota-\ntions include the letters’ original spelling, capitalization, and\npunctuation). The letter informed the jurors that after being\n“skrewed” and serving two years in prison, Maier was “going\nfor a Pardon with the Governor’s oﬃce.” The letter included\na handwritten questionnaire inviting the jurors to respond to\na series of “yes” or “no” questions. The first question asked\nthe jurors if they believed that Wood County “did a Profes-\nsional Job? Such as keeping your Name’s and addresses from\nsomeone like [Maier]?” Maier reminded the jurors that they\nhelped put him in prison, and observed, “Real good people in\nthere.” Maier’s next question asked the jurors whether he\ncould give the list of their names and addresses to the “people\n[Maier] had to live with?” Maier’s questionnaire then ad-\ndressed a litany of injustices he believed he suﬀered during\nhis prosecution, trial, and incarceration for the 2006 charges.\nMaier emphasized his mistreatment and mentioned his place-\nment in mental institutions.\n\fNo. 18-2151 3\n\n After airing his grievances, Maier finally asked the jurors\nwhether they believed they did the right thing in sending him\nto prison. Maier advised the jurors, “My story will be heard\nnation wide soon. Your names could be too. Because you\nhelped in the Judge Zappen conspiracy[.]” He closed the letter\nby encouraging the jurors to “do the right thing” and to mail\ntheir questionnaires to the governor’s Pardon Advisory Board\nand a copy to Maier, himself. He assured the jurors, “The\nsooner I get justice will be when everybody in the Wisconsin\nRapids police cover-up and the Judge Zappen conspiracy will\nget peace ‘No more letters’[.]”\n Maier mailed his missive, questionnaire, and pardon ap-\nplication to all 13 jurors. Three letters were returned as unde-\nliverable. Upon receipt, several of the former jurors immedi-\nately called the police. One of the former jurors and her hus-\nband, a police oﬃcer, contacted the Wood County Sheriﬀ’s\nDepartment to complain about the letter. She feared that\nMaier might retaliate against her for her role in his conviction.\nSheriﬀʹs Deputy Scott Goldberg drafted a report documenting\nthe complaint and in his report stated, ʺ[a]fter reading\nthrough the questions, none of the questions are actually\nthreatening but Oﬃcer Machon said he and his wife were ex-\ntremely concerned about the questions that were asked and\njust the fact that they were being contacted by this subject.ʺ\n A local newspaper later ran a one-sentence bulletin noting\nthat a female juror received a threatening letter from a man on\nwhose trial she served. The newspaper account caught\nMaier’s attention. He clipped the item and included it in a sec-\nond letter to the jurors, dated November 14, 2011. The second\nletter opened, “I read the paper too. My letter was not threat-\nening in anyway. I just want to let you see what kind of Idiots\n\f4 No. 18-2151\n\nyou helped put me in prison.” Maier then criticized the judges\ninvolved in the 2006 aﬀair and wrote, “’You have Nothing to\nfear from me’[.]” He closed his second letter by encouraging\nthe jurors to contact his state representative or the governor’s\noﬃce, and signed oﬀ as “Your friend from Planet of the Apes\nCourthouse In downtown Zappenville[.]”\n After Maier sent the second letter, the state charged him\nwith ten counts of stalking in violation of Wisconsin Statute\n§ 940.32—one count for each of the jurors who received his\nletters.\n A new jury convicted Maier on six of the ten counts and\nacquitted him on four counts. Maier was sentenced to fifteen\nyears in prison and twelve years of extended supervision.\n Maier moved the trial court for post-conviction relief. His\nmotion raised a litany of arguments, including the same four\narguments he brings in this petition. The trial court held a\nhearing and denied Maier’s motion. He then appealed both\nthe trial court’s denial of his motion and his conviction to the\nWisconsin Court of Appeals. State v. Maier, No. 2013AP1391–\nCR, 2014 WL 1810151 1 (Wis. Ct. App. May 8, 2014). It af-\nfirmed Maier’s conviction. Maier then appealed to the Wis-\nconsin Supreme Court, which denied review of his case.\nMaier unsuccessfully petitioned the United States Supreme\nCourt for a writ of certiorari. Maier v. Wisconsin, 136 S. Ct. 2011\n(2016). Maier then petitioned for federal post-conviction re-\nview under 28 U.S.C. § 2254. The district court denied his pe-\ntition and issued a certificate of appealability on May 2, 2018.\nMaier v. Tegels, No. 17-CV-365-BBC, 2018 WL 2049824, at 8\n(W.D. Wis. May 2, 2018). This appeal followed.\n\fNo. 18-2151 5\n\n II. ANALYSIS\n We review a district courtʹs denial of a habeas petition de\nnovo. Saxon v. Lashbrook, 873 F.3d 982, 987 (7th Cir. 2017). We\nreview issues of fact for clear error. Adams v. Bertrand, 453 F.3d\n428, 432 (7th Cir. 2006). Maier’s petition for habeas corpus re-\nlief is governed by the Antiterrorism and Eﬀective Death Pen-\nalty Act of 1996 (AEDPA). AEDPA provides that habeas peti-\ntions shall not be granted unless the adjudication of the claim\nresulted in a decision that was 1) contrary to, or 2) involved\nan unreasonable application of Federal law clearly estab-\nlished in the holdings of the Supreme Court, or 3) resulted in\na decision that was based on an unreasonable determination\nof the facts in light of the evidence presented in the state court\nproceeding. See 28 U.S.C. § 2254; Harrington v. Richter, 562 U.S.\n86, 100 (2011).\n We review the Wisconsin Court of Appeals’ opinion,\nwhich was the last reasoned state-court decision on the mer-\nits. Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). “[O]n habeas\nreview, federal courts are usually limited to a deferential re-\nview of the reasonableness, rather than the absolute correct-\nness, of a state court decision.” Mosley v. Atchison, 689 F.3d\n838, 844 (7th Cir. 2012) (citing Richter, 562 U.S. at 101–102\n(2011)). “For purposes of reasonableness review, ‘a state pris-\noner must show that the state courtʹs ruling on the claim being\npresented in federal court was so lacking in justification that\nthere was an error well understood and comprehended in ex-\nisting law beyond any possibility for fairminded disagree-\nment.’” Id. (quoting Richter, 562 U.S. at 103).\n Wisconsin’s stalking statute prohibits,\n intentionally engag[ing] in a course of conduct di-\n rected at a specific person that would cause a\n\f6 No. 18-2151\n\n reasonable person under the same circumstances to\n suﬀer serious emotional distress or to fear bodily in-\n jury to or the death of himself or herself or a member\n of his or her family or household.\nWis. Stat. § 940.32(2)(a). The state must prove the defendant\nknew or should have known that one of his or her acts would\nlikely cause the victim serious emotional distress. Id. at\n§ 940.32(2)(b). The acts must have also actually caused the vic-\ntim serious emotional distress. Id. at § 940.32(2)(c).\n Maier challenges his conviction in four ways. First, Maier\nclaims he received ineﬀective assistance of counsel because\nhis trial counsel failed to introduce evidence that Maier be-\nlieves would have negated crucial elements of the Wisconsin\nstalking statute. Second, he argues that the Wisconsin stalking\nstatute—as it was applied to him—violated the First Amend-\nment. Third, Maier contends that the jury instructions given\nby the trial court misstated Wisconsin law with respect to the\n“true threats” test. According to Maier, the erroneous jury in-\nstructions failed to hold the state to its burden of proof and\ndeprived him of his Fourteenth Amendment right to due pro-\ncess of law. Lastly, he claims the state presented insuﬃcient\nevidence to support his conviction. We review each argument\nin turn under AEDPA’s deferential standard of review.\n A. Maier Received Eﬀective Assistance of Counsel\n Maier argues he received ineﬀective assistance of counsel\nbecause his trial attorney failed to introduce evidence that\nMaier believes would have aided his defense. Specifically,\nMaier claims that his trial counsel should have introduced ev-\nidence showing that he was genuinely applying for a pardon\nand evidence that a few people—including law enforcement\noﬃcials—did not find the first letter threatening.\n\fNo. 18-2151 7\n\n ʺTo establish ineﬀective assistance of trial counsel, a peti-\ntioner must show that counsel’s performance was deficient\nand that the deficient performance prejudiced his defense.”\nJohnson v. Thurmer, 624 F.3d 786, 791 (7th Cir. 2010) (citing\nStrickland v. Washington, 466 U.S. 668, 689–92 (1984)). We start\nour review assuming that Maier’s counsel “rendered ade-\nquate assistance and made all significant decisions in the ex-\nercise of reasonable professional judgment.” Id. (quoting\nStrickland, 466 U.S. at 690). To overcome that assumption,\nMaier must show that this trial counsel’s representation “‘fell\nbelow an objective standard of reasonableness’ based on pre-\nvailing norms of professional conduct.” Id. (quoting Strick-\nland, 466 U.S. at 688). “In cases such as this, where counsel has\nsucceeded in having his client acquitted of at least one of the\ncharges brought, the presumption is likely to be even more\ndiﬃcult to rebut.” United States v. Banks, 405 F.3d 559, 568 (7th\nCir. 2005). Maier must also establish that the deficient perfor-\nmance prejudiced him by demonstrating that, “there is a rea-\nsonable probability that, but for counsel’s unprofessional er-\nrors, the result of the proceeding would have been diﬀerent.\nA reasonable probability is a probability suﬃcient to under-\nmine confidence in the outcome.” Strickland, 466 U.S. at 694.\n In this case, Maier contends that two types of evidence\nshould have been introduced to help negate the stalking stat-\nute’s mens rea element. First, Maier believes that his attorney\nshould have introduced testimony from Maier’s neighbor and\ndocuments related to his pardon application. Maier explains\nthat he discussed his pardon application and the letters with\nhis neighbor and that the two traveled to Madison together to\npick up the necessary paperwork. According to Maier, his\nneighbor could have testified to Maier’s sincerity in seeking\nthe pardon and his lack of animosity toward the jurors.\n\f8 No. 18-2151\n\nSimilarly, his attorney could have identified documents sub-\nstantiating his pursuit of a pardon. Maier believes this evi-\ndence could have helped prove that he did not actually intend\nfor the letters to threaten.\n Second, Maier believes that his attorney performed defi-\nciently by not introducing evidence of Wisconsin law enforce-\nment oﬃcials’ reactions to the letters. Specifically, Maier\nthinks his attorney should have introduced Deputy Gold-\nberg’s incident report into evidence. Maier argues this was\nrelevant to show that at least one person who read the first\nletter did not find it threatening. Maier also argues that the\nfact that he was not contacted by law enforcement after send-\ning the first letter indicates that letter was not threatening.\n The Wisconsin Court of Appeals addressed and rejected\nthese arguments. With respect to evidence of Maier’s desire\nfor a pardon, the court determined that Maier was not preju-\ndiced by his counselʹs failure to put on the evidence, noting\nthat whether Maier earnestly desired a pardon is irrelevant to\nthe fact that he should have known that jurors would perceive\nhis letters as threatening. Further, the court of appeals rea-\nsoned that Maier could have simultaneously sincerely desired\na pardon and intended to threaten the jurors into supporting\nhis application.\n The court of appeals also rejected Maier’s argument that\nhis trial counsel performed deficiently by failing to introduce\nevidence of law enforcement oﬃcials’ reactions to the letters.\nThe court of appeals observed that the reportʹs significance\npaled in comparison to the letters themselves and the jurors’\ntestimony about the letters’ impact. Further, the court pointed\nout that the deputy sheriﬀ’s report only stated that none of\nthe first letterʹs questions were actually threatening—the\n\fNo. 18-2151 9\n\nreport did not characterize the first letter as a whole or both\nletters taken together as non-threatening. The district court\nsimilarly remarked that it is hard to know, exactly, how this\nevidence would have helped Maier: the impressions of law\nenforcement oﬃcers provide little perspective on whether\nMaier should have known that his letters would have been\nperceived as threatening by the jurors.\n We agree. As noted above, the statute criminalizes behav-\nior that ʺwould cause a reasonable person under the same cir-\ncumstances to suﬀer serious emotional distress[.]” Wis. Stat.\n§ 940.32(2)(a) (emphasis added). Given that the statute fo-\ncuses on the impact of Maier’s conduct on those it targeted, it\nis hard to understand how failing to introduce evidence of\nnon-jurors’ impressions could have harmed Maierʹs defense\nto such an extent that it changed the outcome. Consequently,\nMaier fails to show that the court of appeals’ determination\nthat he received eﬀective assistance of counsel was unreason-\nable.\n B. The Court of Appealsʹ First Amendment Analysis was Rea-\n sonable\n Maier urges that Wisconsin’s stalking statute was uncon-\nstitutional as the state applied it against him. Specifically,\nMaier argues that his conviction under the statute punished\nhim for unintentional threats: speech protected by the First\nAmendment. In support of his claim, Maier contends the Su-\npreme Court has established that the ʺtrue threatsʺ exception\nto the First Amendment requires the state to prove that the\nspeaker actually intends to threaten others. Unfortunately for\nMaier, we do not agree that the Supreme Court clearly estab-\nlished a standard for the true threats doctrine, and conse-\nquently his claim fails.\n\f10 No. 18-2151\n\n Although the First Amendment generally protects the\nright to free speech, this protection does not extend to all\nspeech. “[T]he First Amendment does not preclude re-\nstrictions on certain categories of speech having little or no\nsocial value, and threats are one such category.” United States\nv. Parr, 545 F.3d 491, 496–497 (7th Cir. 2008) (citing Virginia v.\nBlack, 538 U.S. 343, 358–59 (2003)). “A statement qualifies as a\n‘true threat,’ unprotected by the First Amendment, if it is ‘a\nserious expression of an intent to commit an act of unlawful\nviolence to a particular individual or group of individuals.’”\nId. at 497 (quoting Black, 538 U.S. at 359). Black involved a con-\nstitutional challenge to Virginiaʹs cross burning statute and\nthe Supreme Court produced a handful of splintered opinions\nattempting to articulate the proper standard.\n Before Black, this and other circuits employed an objective\n“reasonable person” standard to determine whether speech\nconstituted a true threat. See id. at 499; see also United States v.\nFuller, 387 F.3d 643, 647 (7th Cir. 2004) (“[T]he objective, rea-\nsonable person standard does not tread on free speech.”). Un-\nder that approach, courts would ask whether either a reason-\nable speaker would expect his words to be interpreted as a\nthreat or whether a reasonable listener would interpret the\nspeaker’s words to be a threat. Parr, 545 F.3d at 499. After\nBlack, however, we and other courts have wondered whether\nspeech only qualifies as a true threat if the speaker subjec-\ntively intended his words to be threatening. Id. at 499–500.\n The Wisconsin courts employed a double-objective stand-\nard in Maier’s case—meaning the state had to satisfy the ob-\njective standard from the perspectives of both the speaker and\nthe listener. Maier contends Black rendered this approach un-\nconstitutional and that the state should have been required to\n\fNo. 18-2151 11\n\nmeet its burden of proof under the subjective standard. Alt-\nhough our opinion in Parr recognized that “it is more likely\n[after Black] that an entirely objective definition [of true\nthreats] is no longer tenable[,]” the Supreme Court has not\nmade that ultimate determination. Id. at 500.\n In this habeas corpus action, Maier must show that the\nstate courtʹs adjudication of his case resulted in a decision that\nwas “contrary to, or involved an unreasonable application of,\nclearly established Federal law, as determined by the Supreme\nCourt.” 28 U.S.C. § 2254(d)(1). Additionally, as the Wisconsin\nCourt of Appeals noted, a majority of courts that addressed\nthe issue determined that the objective approach remains vi-\nable after Black. See Maier, 2014 WL 1810151 at 5; see also\nUnited States v. Elonis, 730 F.3d 321, 330 (3d Cir. 2013). Because\nthe Supreme Court has not definitively answered the ques-\ntion, Wisconsin’s interpretation of that doctrine is not con-\ntrary to or an unreasonable application of clearly established\nFederal law.\n C. The Jury Instructions Held the State to Its Burden of Proof\n Maier also argues he was deprived of his right to due pro-\ncess because the jury instructions allegedly misstated Wiscon-\nsin law and eﬀectively relieved the state of its burden of proof.\nMaier contends that the instructions failed to properly articu-\nlate Wisconsin’s “true threat” standard, as established by the\nWisconsin Supreme Court in State v. Perkins, 626 N.W.2d 762,\n770 (Wis. 2001).\n A defendant’s right to due process guarantees that the\nstate must prove every element of the alleged crime beyond a\nreasonable doubt. Middleton v. McNeil, 541 U.S. 433, 437\n(2004). A jury instruction violates due process if it fails to give\n\f12 No. 18-2151\n\neﬀect to this requirement. Id. However, habeas precedent\nplaces an especially heavy burden on a defendant seeking to\nshow constitutional error from a jury instruction that quotes\nstate law. Waddington v. Sarausad, 555 U.S. 179, 190 (2009); Bur-\nris v. Smith, 819 F.3d 1037, 1041 (7th Cir. 2016). “[N]ot every\nambiguity, inconsistency, or deficiency in a jury instruction\nrises to the level of a due process violation.” Middleton, 541\nU.S. at 437. Maier must show both that the instruction was\ndeficient and that “there was a reasonable likelihood that the\njury applied the instruction in a way that relieved the State of\nits burden of proving every element of the crime beyond a\nreasonable doubt.” Waddington, 555 U.S. at 190 (internal quo-\ntations omitted). We must determine, “whether the ailing in-\nstruction by itself so infected the entire trial that the resulting\nconviction violates due process.” Estelle v. McGuire, 502 U.S.\n62, 72 (1991).\n In Perkins, the Wisconsin Supreme Court addressed jury\ninstructions administered in the trial of a man accused of\nthreatening a judge in violation of state law. See Wis. Stat.\n§ 940.203. Under that statute, the state bore the burden of\nproving the defendant threatened to cause bodily harm to a\njudge. See Perkins, 626 N.W.2d at 771. The Wisconsin Supreme\nCourt deemed the jury instructions in that case insuﬃcient\nbecause they failed to define “threaten[ing] to cause bodily\nharm.” Id. at 772. Specifically,\n the jury was not instructed that it had to apply an\n objective test in the first element to determine\n whether the defendant had ‘threatened to cause\n bodily harm,’ that is, that a speaker would reasona-\n bly foresee that a listener would reasonably inter-\n pret the statement to be a serious expression of a\n purpose to inflict bodily harm, as distinguished\n\fNo. 18-2151 13\n\n from hyperbole, jest, innocuous talk, expressions of\n political views, or other similarly protected speech.\n\nId.\n The Perkins court held that without language explaining\nthe statuteʹs use of the narrower, legal definition of\n“threaten,” a reasonable likelihood existed that the jury inter-\npreted and applied the given instruction to the detriment of\nPerkins’ right to free speech. Id. at 773.\n According to Maier, a similar thing happened here. He\npins the jury instructions’ deficiency on their definition of “se-\nrious emotional distress.” The instructions quoted the stalk-\ning statute and explained that a defendant causes the victim\nto experience serious emotional distress if his course of con-\nduct caused the victim to “feel terrified, intimidated, threat-\nened, harassed, or tormented.” Wis. Stat. § 940.32(1)(d). Maier\nclaims that this definition of serious emotional distress in the\ninstructions eﬀectively allowed the jury to convict him for\ngenerally threatening (but constitutionally protected) lan-\nguage. He insists the instructions should have included the\nPerkins language distinguishing a serious expression of a pur-\npose to inflict bodily harm from “hyperbole, jest, innocuous\ntalk, expressions of political views, or other similarly pro-\ntected speech.” Perkins, 626 N.W.2d at 772.\n The Wisconsin Court of Appeals disagreed. It explained\nthat Perkins required that the state must prove true threats on\nan objective standard from the perspective of both the listener\nand the speaker. See Maier, 2014 WL 1810151 at 4. The court\nnoted that the instructions told the jury to find Maier guilty\nonly if his letters would have caused a reasonable person in\nthe position of the 2006 jurors to experience serious emotional\ndistress and explained that this satisfied the objective\n\f14 No. 18-2151\n\nstandard from the jurors’ perspective. The court also observed\nthat the instructions told the jury to find Maier guilty only if\nhe knew or should have known that his letters would have\ncaused the 2006 jurors to suﬀer serious emotional distress.\nThus, the court determined that the instructions administered\nin this case met Perkinsʹ demand by applying the objective ap-\nproach to both the speaker (Maier) and the listeners (the 2006\njurors).\n Lastly, as to Maierʹs argument that he was entitled to an\ninstruction with verbiage from the Perkins decision, the court\nof appeals distinguished between Wisconsin’s stalking statute\nand the statute at issue in Perkins, noting that the Perkins opin-\nion itself acknowledged that the true threats test required\nmodification for diﬀerent statutes. See Perkins, 626 N.W.2d. at\n770.\n We agree that the jury instructions accurately stated the\nelements of the crime. With respect to the true threats stand-\nard, the instructions included the essential elements of the\ndouble objective standard articulated by the Wisconsin Su-\npreme Court. In Perkins, the Wisconsin Supreme Court ex-\npressed concern that jury instructions did not inform the jury\nthat it had to apply an objective test to determine whether the\ndefendant in that case threatened a judge. Perkins, 626 N.W.2d\nat 772. In this case, the jury instructions included the double\nobjective standard demanded by Perkins. Although the jury\ninstructions did not mirror the language used in Perkins, the\ncourt of appeals made a reasonable determination that the\ngiven instructions provided a suﬃcient, albeit modified, ar-\nticulation of the Perkins true threats standard in the context of\nthe stalking statute. Because Perkins is not an unreasonable\napplication of clearly established Supreme Court precedent,\n\fNo. 18-2151 15\n\nand because the jury instruction was consistent with Perkins,\nthe jury instructions did not violate due process.\n D. The State Presented Suﬃcient Evidence to Convict Maier\n Finally, Maier contends that, even if an objective-intent\nstandard is permissible, the state produced insufficient evi-\ndence to support his conviction under that standard. He ar-\ngues the court of appeals’ opinion fails in three main ways.\nFirst, the court of appeals failed to apply the sufficiency stand-\nard with explicit reference to the Perkins standard, and its\nopinion is therefore contrary to Jackson v. Virginia, 443 U.S.\n307, 316 (1979). Second, the court of appeals only considered\nisolated passages from Maier’s letters to the jurors and not\n“all of the evidence at trial” that should have been considered.\nLastly, Maier attempts to argue that the court of appeals’\nopinion relied on an unreasonable reading of his letters. All\nthese arguments fail.\n Fourteenth Amendment due process requires that the\nstate must present sufficient evidence to prove each element\nof an alleged crime. See Jackson, 443 U.S. at 326. The crime’s\nsubstantive elements are defined by state law. Id. at 324 n.16.\nSufficiency of the evidence is reviewed under a different\nstandard on federal habeas review than on direct appeal be-\nfore the state court. “[T]he state appellate court determines\nwhether any rational trier of fact could have found the evi-\ndence sufficient; … a federal court may only overturn the ap-\npellate courtʹs finding of sufficient evidence if it was objec-\ntively unreasonable.” Saxon, 873 F.3d at 988. To warrant relief,\nthe state court’s application of federal law “must be ‘some-\nthing like lying well outside the boundaries of permissible\ndifferences of opinion.’” Id. at 987 (quoting Jackson v. Frank,\n348 F.3d 658, 662 (7th Cir. 2003)).\n\f16 No. 18-2151\n\n Maier contends that the court of appeals failed to specifi-\ncally find that the evidence satisfied the Perkins standard. His\nargument here is hard to follow. We understand his argument\nto be similar to his objection to the jury instructions: the court\nof appeals failed to apply the “true threats” language used in\nPerkins, and the evidence presented could not satisfy the\nstandard articulated in that case. However, we believe the\ncourt of appeals reasonably applied Perkins’ requirements.\nMaier might also be arguing that, because Perkins violates Su-\npreme Court precedent, the court of appeal’s sufficiency of\nthe evidence analysis was fatally flawed. In any event, we\nconclude that the court of appeals’ analysis was not objec-\ntively unreasonable.\n The court of appeals’ decision effectively applied the suf-\nficiency standard in this case with reference to each of the el-\nements of the stalking statute—including Perkins’ double ob-\njective standard. Moreover, the opinion points to evidence\nthat satisfies the objective standard from the perspective of a\nreasonable listener. The court of appeals’ opinion identified\nspecific language in both letters and gave examples of how\nthat evidence supported the jury’s finding that “a reasonable\nperson in the position of the 2006 jurors would have under-\nstood the letters to be threatening.” State v. Maier, 2014 WL\n1810151 at 9.\n And the court of appeals’ opinion implicitly but neces-\nsarily found that the evidence satisfied the objective standard\nfrom Maier’s perspective. The court held that the jury could\nhave reasonably determined that each letter was inde-\npendently threatening. Id. at 10. As the state points out,\nMaier sent a second letter to the jurors after learning from the\nnewspaper that at least one of the jurors found his first letter\n\fNo. 18-2151 17\n\nto be threatening and called law enforcement. This suggests\nthat at least with respect to the second letter, Maier was on\nnotice that the jurors would suffer serious emotional distress\nbecause of his communications. Significantly, one of Maier’s\nquestions in the first letter—the question asking jurors\nwhether they thought that Wood County acted professionally\nby distributing their names and addresses to Maier—indi-\ncates that Maier likely knew he should not be writing the ju-\nrors in the first place. And even aside from the content of\nMaier’s letters, consider, for example, what his very act of\nmailing the first letter communicated to the jurors: I know\nwho you are, I know you helped put me behind bars, and I\nknow where you live. Likewise, and without considering the\ncontent of Maier’s written words, his second letter communi-\ncated that he knew one of the jurors complained and that he\nwas paying attention. The court of appeals reasonably con-\ncluded that the state presented sufficient evidence to support\nMaier’s conviction.\n Maier also claims the court of appeals failed to consider all\nthe evidence available at trial, and instead only focused on\nisolated passages in his letters. He argues that, when the to-\ntality of the evidence is considered, the letters could have\nbeen viewed as nonthreatening. The Wisconsin Court of Ap-\npeals’ opinion focused on whether the facts presented at trial\njustified the juryʹs determination; it likewise focused on the\nportions of the record that support the juryʹs finding. This was\nappropriate because the court of appeals was required to view\nall the evidence in a manner favorable to the state and the con-\nviction. See State v. Poellinger, 451 N.W.2d 752 (Wis. 1990); see\nalso McDaniel v. Brown, 558 U.S. 120, 133 (2010). This focus\ndoes not, as Maier argues, ignore evidence more favorable to\nhim. Instead, the court acknowledged—but rejected—Maier’s\n\f18 No. 18-2151\n\ncharacterization of the letters. See Maier, 2014 WL 1810151 at\n8-9. None of Maier’s alternative explanations for his letters\nprovides so convincing an explanation that we deem the court\nof appeals’ opinion to be objectively unreasonable.\n Lastly, Maier attempts to argue that the court of appeals’\nopinion reflects an unreasonable interpretation of his letters.\nConsequently, he contends the opinion provides an unrea-\nsonable determination of the facts in light of the evidence pre-\nsented. See 28 U.S.C. § 2254(d)(2). Again, the court of appeals\nproperly reviewed the record in a light most favorable to the\nprosecution and conviction. The court’s opinion was not un-\nreasonable because it failed to construe the evidence as Maier\nwished—in a light most favorable to him. See Maier, 2014 WL\n1810151 at 9. Given this standard, we believe that the court’s\nopinion provided a reasonable application of this case’s facts.\n III. CONCLUSION\n Based on the foregoing, we believe the Wisconsin Court of\nAppeals did not unreasonably reject Maier’s numerous\nclaims. Maier failed to demonstrate that his conviction under\nthe stalking statute was contrary to, or involved an unreason-\nable application of, clearly established Federal law. Nor has\nhe demonstrated that the decision was based on an unreason-\nable determination of the facts in light of the evidence pre-\nsented at trial. AFFIRMED.\n[END_CASE]", "role": "user" } ]
4,581,068		Donald Maier v. Judy Smith	2019-01-11	18-2151	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before KANNE, ROVNER, and BARRETT, Circuit Judges.", "parties": "", "opinions": [{"author": "Michael Stephen Kanne", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-2151\nDONALD MAIER,\n Petitioner-Appellant,\n v.\n\nJUDY P. SMITH,\n Respondent-Appellee.\n ____________________\n\n Appeal from the United States District Court for the\n Western District of Wisconsin.\n No. 17-cv-365 — Barbara B. Crabb, Judge.\n ____________________\n\n ARGUED SEPTEMBER 25, 2018 — DECIDED JANUARY 11, 2019\n ____________________\n\n Before KANNE, ROVNER, and BARRETT, Circuit Judges.\n KANNE, Circuit Judge. Donald Maier appeals the district\ncourt’s denial of his petition for habeas corpus relief from his\nconviction under Wisconsin’s stalking statute. Five years after\na jury convicted Maier of threatening two Wisconsin state\ncourt judges, Maier sent two sets of letters to the former ju-\nrors—ostensibly seeking their help in his eﬀort to obtain a\ngovernor’s pardon. Several of the jurors found the letters\nthreatening or disturbing. Maier was charged and convicted\n\f2 No. 18-2151\n\nunder Wisconsin’s stalking statute. After appealing his con-\nviction in the Wisconsin state courts, Maier brought this peti-\ntion. Because the Wisconsin Court of Appeals’ decision was\nnot objectively unreasonable, we aﬃrm the district court’s de-\nnial of Maier’s petition.\n I. BACKGROUND\n A jury convicted Donald Maier of threatening two Wis-\nconsin state court judges in 2006. In November 2011, Maier\nmailed a handwritten letter to the men and women who\nserved as jurors in that case. Due to a clerical error, Maier ob-\ntained the names and addresses of the jurors in his case. The\njurors were not expecting his correspondence. The letter’s\nopening line announced, “Jury Duty is Not Over.” (all quota-\ntions include the letters’ original spelling, capitalization, and\npunctuation). The letter informed the jurors that after being\n“skrewed” and serving two years in prison, Maier was “going\nfor a Pardon with the Governor’s oﬃce.” The letter included\na handwritten questionnaire inviting the jurors to respond to\na series of “yes” or “no” questions. The first question asked\nthe jurors if they believed that Wood County “did a Profes-\nsional Job? Such as keeping your Name’s and addresses from\nsomeone like [Maier]?” Maier reminded the jurors that they\nhelped put him in prison, and observed, “Real good people in\nthere.” Maier’s next question asked the jurors whether he\ncould give the list of their names and addresses to the “people\n[Maier] had to live with?” Maier’s questionnaire then ad-\ndressed a litany of injustices he believed he suﬀered during\nhis prosecution, trial, and incarceration for the 2006 charges.\nMaier emphasized his mistreatment and mentioned his place-\nment in mental institutions.\n\fNo. 18-2151 3\n\n After airing his grievances, Maier finally asked the jurors\nwhether they believed they did the right thing in sending him\nto prison. Maier advised the jurors, “My story will be heard\nnation wide soon. Your names could be too. Because you\nhelped in the Judge Zappen conspiracy[.]” He closed the letter\nby encouraging the jurors to “do the right thing” and to mail\ntheir questionnaires to the governor’s Pardon Advisory Board\nand a copy to Maier, himself. He assured the jurors, “The\nsooner I get justice will be when everybody in the Wisconsin\nRapids police cover-up and the Judge Zappen conspiracy will\nget peace ‘No more letters’[.]”\n Maier mailed his missive, questionnaire, and pardon ap-\nplication to all 13 jurors. Three letters were returned as unde-\nliverable. Upon receipt, several of the former jurors immedi-\nately called the police. One of the former jurors and her hus-\nband, a police oﬃcer, contacted the Wood County Sheriﬀ’s\nDepartment to complain about the letter. She feared that\nMaier might retaliate against her for her role in his conviction.\nSheriﬀʹs Deputy Scott Goldberg drafted a report documenting\nthe complaint and in his report stated, ʺ[a]fter reading\nthrough the questions, none of the questions are actually\nthreatening but Oﬃcer Machon said he and his wife were ex-\ntremely concerned about the questions that were asked and\njust the fact that they were being contacted by this subject.ʺ\n A local newspaper later ran a one-sentence bulletin noting\nthat a female juror received a threatening letter from a man on\nwhose trial she served. The newspaper account caught\nMaier’s attention. He clipped the item and included it in a sec-\nond letter to the jurors, dated November 14, 2011. The second\nletter opened, “I read the paper too. My letter was not threat-\nening in anyway. I just want to let you see what kind of Idiots\n\f4 No. 18-2151\n\nyou helped put me in prison.” Maier then criticized the judges\ninvolved in the 2006 aﬀair and wrote, “’You have Nothing to\nfear from me’[.]” He closed his second letter by encouraging\nthe jurors to contact his state representative or the governor’s\noﬃce, and signed oﬀ as “Your friend from Planet of the Apes\nCourthouse In downtown Zappenville[.]”\n After Maier sent the second letter, the state charged him\nwith ten counts of stalking in violation of Wisconsin Statute\n§ 940.32—one count for each of the jurors who received his\nletters.\n A new jury convicted Maier on six of the ten counts and\nacquitted him on four counts. Maier was sentenced to fifteen\nyears in prison and twelve years of extended supervision.\n Maier moved the trial court for post-conviction relief. His\nmotion raised a litany of arguments, including the same four\narguments he brings in this petition. The trial court held a\nhearing and denied Maier’s motion. He then appealed both\nthe trial court’s denial of his motion and his conviction to the\nWisconsin Court of Appeals. State v. Maier, No. 2013AP1391–\nCR, 2014 WL 1810151 1 (Wis. Ct. App. May 8, 2014). It af-\nfirmed Maier’s conviction. Maier then appealed to the Wis-\nconsin Supreme Court, which denied review of his case.\nMaier unsuccessfully petitioned the United States Supreme\nCourt for a writ of certiorari. Maier v. Wisconsin, 136 S. Ct. 2011\n(2016). Maier then petitioned for federal post-conviction re-\nview under 28 U.S.C. § 2254. The district court denied his pe-\ntition and issued a certificate of appealability on May 2, 2018.\nMaier v. Tegels, No. 17-CV-365-BBC, 2018 WL 2049824, at 8\n(W.D. Wis. May 2, 2018). This appeal followed.\n\fNo. 18-2151 5\n\n II. ANALYSIS\n We review a district courtʹs denial of a habeas petition de\nnovo. Saxon v. Lashbrook, 873 F.3d 982, 987 (7th Cir. 2017). We\nreview issues of fact for clear error. Adams v. Bertrand, 453 F.3d\n428, 432 (7th Cir. 2006). Maier’s petition for habeas corpus re-\nlief is governed by the Antiterrorism and Eﬀective Death Pen-\nalty Act of 1996 (AEDPA). AEDPA provides that habeas peti-\ntions shall not be granted unless the adjudication of the claim\nresulted in a decision that was 1) contrary to, or 2) involved\nan unreasonable application of Federal law clearly estab-\nlished in the holdings of the Supreme Court, or 3) resulted in\na decision that was based on an unreasonable determination\nof the facts in light of the evidence presented in the state court\nproceeding. See 28 U.S.C. § 2254; Harrington v. Richter, 562 U.S.\n86, 100 (2011).\n We review the Wisconsin Court of Appeals’ opinion,\nwhich was the last reasoned state-court decision on the mer-\nits. Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). “[O]n habeas\nreview, federal courts are usually limited to a deferential re-\nview of the reasonableness, rather than the absolute correct-\nness, of a state court decision.” Mosley v. Atchison, 689 F.3d\n838, 844 (7th Cir. 2012) (citing Richter, 562 U.S. at 101–102\n(2011)). “For purposes of reasonableness review, ‘a state pris-\noner must show that the state courtʹs ruling on the claim being\npresented in federal court was so lacking in justification that\nthere was an error well understood and comprehended in ex-\nisting law beyond any possibility for fairminded disagree-\nment.’” Id. (quoting Richter, 562 U.S. at 103).\n Wisconsin’s stalking statute prohibits,\n intentionally engag[ing] in a course of conduct di-\n rected at a specific person that would cause a\n\f6 No. 18-2151\n\n reasonable person under the same circumstances to\n suﬀer serious emotional distress or to fear bodily in-\n jury to or the death of himself or herself or a member\n of his or her family or household.\nWis. Stat. § 940.32(2)(a). The state must prove the defendant\nknew or should have known that one of his or her acts would\nlikely cause the victim serious emotional distress. Id. at\n§ 940.32(2)(b). The acts must have also actually caused the vic-\ntim serious emotional distress. Id. at § 940.32(2)(c).\n Maier challenges his conviction in four ways. First, Maier\nclaims he received ineﬀective assistance of counsel because\nhis trial counsel failed to introduce evidence that Maier be-\nlieves would have negated crucial elements of the Wisconsin\nstalking statute. Second, he argues that the Wisconsin stalking\nstatute—as it was applied to him—violated the First Amend-\nment. Third, Maier contends that the jury instructions given\nby the trial court misstated Wisconsin law with respect to the\n“true threats” test. According to Maier, the erroneous jury in-\nstructions failed to hold the state to its burden of proof and\ndeprived him of his Fourteenth Amendment right to due pro-\ncess of law. Lastly, he claims the state presented insuﬃcient\nevidence to support his conviction. We review each argument\nin turn under AEDPA’s deferential standard of review.\n A. Maier Received Eﬀective Assistance of Counsel\n Maier argues he received ineﬀective assistance of counsel\nbecause his trial attorney failed to introduce evidence that\nMaier believes would have aided his defense. Specifically,\nMaier claims that his trial counsel should have introduced ev-\nidence showing that he was genuinely applying for a pardon\nand evidence that a few people—including law enforcement\noﬃcials—did not find the first letter threatening.\n\fNo. 18-2151 7\n\n ʺTo establish ineﬀective assistance of trial counsel, a peti-\ntioner must show that counsel’s performance was deficient\nand that the deficient performance prejudiced his defense.”\nJohnson v. Thurmer, 624 F.3d 786, 791 (7th Cir. 2010) (citing\nStrickland v. Washington, 466 U.S. 668, 689–92 (1984)). We start\nour review assuming that Maier’s counsel “rendered ade-\nquate assistance and made all significant decisions in the ex-\nercise of reasonable professional judgment.” Id. (quoting\nStrickland, 466 U.S. at 690). To overcome that assumption,\nMaier must show that this trial counsel’s representation “‘fell\nbelow an objective standard of reasonableness’ based on pre-\nvailing norms of professional conduct.” Id. (quoting Strick-\nland, 466 U.S. at 688). “In cases such as this, where counsel has\nsucceeded in having his client acquitted of at least one of the\ncharges brought, the presumption is likely to be even more\ndiﬃcult to rebut.” United States v. Banks, 405 F.3d 559, 568 (7th\nCir. 2005). Maier must also establish that the deficient perfor-\nmance prejudiced him by demonstrating that, “there is a rea-\nsonable probability that, but for counsel’s unprofessional er-\nrors, the result of the proceeding would have been diﬀerent.\nA reasonable probability is a probability suﬃcient to under-\nmine confidence in the outcome.” Strickland, 466 U.S. at 694.\n In this case, Maier contends that two types of evidence\nshould have been introduced to help negate the stalking stat-\nute’s mens rea element. First, Maier believes that his attorney\nshould have introduced testimony from Maier’s neighbor and\ndocuments related to his pardon application. Maier explains\nthat he discussed his pardon application and the letters with\nhis neighbor and that the two traveled to Madison together to\npick up the necessary paperwork. According to Maier, his\nneighbor could have testified to Maier’s sincerity in seeking\nthe pardon and his lack of animosity toward the jurors.\n\f8 No. 18-2151\n\nSimilarly, his attorney could have identified documents sub-\nstantiating his pursuit of a pardon. Maier believes this evi-\ndence could have helped prove that he did not actually intend\nfor the letters to threaten.\n Second, Maier believes that his attorney performed defi-\nciently by not introducing evidence of Wisconsin law enforce-\nment oﬃcials’ reactions to the letters. Specifically, Maier\nthinks his attorney should have introduced Deputy Gold-\nberg’s incident report into evidence. Maier argues this was\nrelevant to show that at least one person who read the first\nletter did not find it threatening. Maier also argues that the\nfact that he was not contacted by law enforcement after send-\ning the first letter indicates that letter was not threatening.\n The Wisconsin Court of Appeals addressed and rejected\nthese arguments. With respect to evidence of Maier’s desire\nfor a pardon, the court determined that Maier was not preju-\ndiced by his counselʹs failure to put on the evidence, noting\nthat whether Maier earnestly desired a pardon is irrelevant to\nthe fact that he should have known that jurors would perceive\nhis letters as threatening. Further, the court of appeals rea-\nsoned that Maier could have simultaneously sincerely desired\na pardon and intended to threaten the jurors into supporting\nhis application.\n The court of appeals also rejected Maier’s argument that\nhis trial counsel performed deficiently by failing to introduce\nevidence of law enforcement oﬃcials’ reactions to the letters.\nThe court of appeals observed that the reportʹs significance\npaled in comparison to the letters themselves and the jurors’\ntestimony about the letters’ impact. Further, the court pointed\nout that the deputy sheriﬀ’s report only stated that none of\nthe first letterʹs questions were actually threatening—the\n\fNo. 18-2151 9\n\nreport did not characterize the first letter as a whole or both\nletters taken together as non-threatening. The district court\nsimilarly remarked that it is hard to know, exactly, how this\nevidence would have helped Maier: the impressions of law\nenforcement oﬃcers provide little perspective on whether\nMaier should have known that his letters would have been\nperceived as threatening by the jurors.\n We agree. As noted above, the statute criminalizes behav-\nior that ʺwould cause a reasonable person under the same cir-\ncumstances to suﬀer serious emotional distress[.]” Wis. Stat.\n§ 940.32(2)(a) (emphasis added). Given that the statute fo-\ncuses on the impact of Maier’s conduct on those it targeted, it\nis hard to understand how failing to introduce evidence of\nnon-jurors’ impressions could have harmed Maierʹs defense\nto such an extent that it changed the outcome. Consequently,\nMaier fails to show that the court of appeals’ determination\nthat he received eﬀective assistance of counsel was unreason-\nable.\n B. The Court of Appealsʹ First Amendment Analysis was Rea-\n sonable\n Maier urges that Wisconsin’s stalking statute was uncon-\nstitutional as the state applied it against him. Specifically,\nMaier argues that his conviction under the statute punished\nhim for unintentional threats: speech protected by the First\nAmendment. In support of his claim, Maier contends the Su-\npreme Court has established that the ʺtrue threatsʺ exception\nto the First Amendment requires the state to prove that the\nspeaker actually intends to threaten others. Unfortunately for\nMaier, we do not agree that the Supreme Court clearly estab-\nlished a standard for the true threats doctrine, and conse-\nquently his claim fails.\n\f10 No. 18-2151\n\n Although the First Amendment generally protects the\nright to free speech, this protection does not extend to all\nspeech. “[T]he First Amendment does not preclude re-\nstrictions on certain categories of speech having little or no\nsocial value, and threats are one such category.” United States\nv. Parr, 545 F.3d 491, 496–497 (7th Cir. 2008) (citing Virginia v.\nBlack, 538 U.S. 343, 358–59 (2003)). “A statement qualifies as a\n‘true threat,’ unprotected by the First Amendment, if it is ‘a\nserious expression of an intent to commit an act of unlawful\nviolence to a particular individual or group of individuals.’”\nId. at 497 (quoting Black, 538 U.S. at 359). Black involved a con-\nstitutional challenge to Virginiaʹs cross burning statute and\nthe Supreme Court produced a handful of splintered opinions\nattempting to articulate the proper standard.\n Before Black, this and other circuits employed an objective\n“reasonable person” standard to determine whether speech\nconstituted a true threat. See id. at 499; see also United States v.\nFuller, 387 F.3d 643, 647 (7th Cir. 2004) (“[T]he objective, rea-\nsonable person standard does not tread on free speech.”). Un-\nder that approach, courts would ask whether either a reason-\nable speaker would expect his words to be interpreted as a\nthreat or whether a reasonable listener would interpret the\nspeaker’s words to be a threat. Parr, 545 F.3d at 499. After\nBlack, however, we and other courts have wondered whether\nspeech only qualifies as a true threat if the speaker subjec-\ntively intended his words to be threatening. Id. at 499–500.\n The Wisconsin courts employed a double-objective stand-\nard in Maier’s case—meaning the state had to satisfy the ob-\njective standard from the perspectives of both the speaker and\nthe listener. Maier contends Black rendered this approach un-\nconstitutional and that the state should have been required to\n\fNo. 18-2151 11\n\nmeet its burden of proof under the subjective standard. Alt-\nhough our opinion in Parr recognized that “it is more likely\n[after Black] that an entirely objective definition [of true\nthreats] is no longer tenable[,]” the Supreme Court has not\nmade that ultimate determination. Id. at 500.\n In this habeas corpus action, Maier must show that the\nstate courtʹs adjudication of his case resulted in a decision that\nwas “contrary to, or involved an unreasonable application of,\nclearly established Federal law, as determined by the Supreme\nCourt.” 28 U.S.C. § 2254(d)(1). Additionally, as the Wisconsin\nCourt of Appeals noted, a majority of courts that addressed\nthe issue determined that the objective approach remains vi-\nable after Black. See Maier, 2014 WL 1810151 at 5; see also\nUnited States v. Elonis, 730 F.3d 321, 330 (3d Cir. 2013). Because\nthe Supreme Court has not definitively answered the ques-\ntion, Wisconsin’s interpretation of that doctrine is not con-\ntrary to or an unreasonable application of clearly established\nFederal law.\n C. The Jury Instructions Held the State to Its Burden of Proof\n Maier also argues he was deprived of his right to due pro-\ncess because the jury instructions allegedly misstated Wiscon-\nsin law and eﬀectively relieved the state of its burden of proof.\nMaier contends that the instructions failed to properly articu-\nlate Wisconsin’s “true threat” standard, as established by the\nWisconsin Supreme Court in State v. Perkins, 626 N.W.2d 762,\n770 (Wis. 2001).\n A defendant’s right to due process guarantees that the\nstate must prove every element of the alleged crime beyond a\nreasonable doubt. Middleton v. McNeil, 541 U.S. 433, 437\n(2004). A jury instruction violates due process if it fails to give\n\f12 No. 18-2151\n\neﬀect to this requirement. Id. However, habeas precedent\nplaces an especially heavy burden on a defendant seeking to\nshow constitutional error from a jury instruction that quotes\nstate law. Waddington v. Sarausad, 555 U.S. 179, 190 (2009); Bur-\nris v. Smith, 819 F.3d 1037, 1041 (7th Cir. 2016). “[N]ot every\nambiguity, inconsistency, or deficiency in a jury instruction\nrises to the level of a due process violation.” Middleton, 541\nU.S. at 437. Maier must show both that the instruction was\ndeficient and that “there was a reasonable likelihood that the\njury applied the instruction in a way that relieved the State of\nits burden of proving every element of the crime beyond a\nreasonable doubt.” Waddington, 555 U.S. at 190 (internal quo-\ntations omitted). We must determine, “whether the ailing in-\nstruction by itself so infected the entire trial that the resulting\nconviction violates due process.” Estelle v. McGuire, 502 U.S.\n62, 72 (1991).\n In Perkins, the Wisconsin Supreme Court addressed jury\ninstructions administered in the trial of a man accused of\nthreatening a judge in violation of state law. See Wis. Stat.\n§ 940.203. Under that statute, the state bore the burden of\nproving the defendant threatened to cause bodily harm to a\njudge. See Perkins, 626 N.W.2d at 771. The Wisconsin Supreme\nCourt deemed the jury instructions in that case insuﬃcient\nbecause they failed to define “threaten[ing] to cause bodily\nharm.” Id. at 772. Specifically,\n the jury was not instructed that it had to apply an\n objective test in the first element to determine\n whether the defendant had ‘threatened to cause\n bodily harm,’ that is, that a speaker would reasona-\n bly foresee that a listener would reasonably inter-\n pret the statement to be a serious expression of a\n purpose to inflict bodily harm, as distinguished\n\fNo. 18-2151 13\n\n from hyperbole, jest, innocuous talk, expressions of\n political views, or other similarly protected speech.\n\nId.\n The Perkins court held that without language explaining\nthe statuteʹs use of the narrower, legal definition of\n“threaten,” a reasonable likelihood existed that the jury inter-\npreted and applied the given instruction to the detriment of\nPerkins’ right to free speech. Id. at 773.\n According to Maier, a similar thing happened here. He\npins the jury instructions’ deficiency on their definition of “se-\nrious emotional distress.” The instructions quoted the stalk-\ning statute and explained that a defendant causes the victim\nto experience serious emotional distress if his course of con-\nduct caused the victim to “feel terrified, intimidated, threat-\nened, harassed, or tormented.” Wis. Stat. § 940.32(1)(d). Maier\nclaims that this definition of serious emotional distress in the\ninstructions eﬀectively allowed the jury to convict him for\ngenerally threatening (but constitutionally protected) lan-\nguage. He insists the instructions should have included the\nPerkins language distinguishing a serious expression of a pur-\npose to inflict bodily harm from “hyperbole, jest, innocuous\ntalk, expressions of political views, or other similarly pro-\ntected speech.” Perkins, 626 N.W.2d at 772.\n The Wisconsin Court of Appeals disagreed. It explained\nthat Perkins required that the state must prove true threats on\nan objective standard from the perspective of both the listener\nand the speaker. See Maier, 2014 WL 1810151 at 4. The court\nnoted that the instructions told the jury to find Maier guilty\nonly if his letters would have caused a reasonable person in\nthe position of the 2006 jurors to experience serious emotional\ndistress and explained that this satisfied the objective\n\f14 No. 18-2151\n\nstandard from the jurors’ perspective. The court also observed\nthat the instructions told the jury to find Maier guilty only if\nhe knew or should have known that his letters would have\ncaused the 2006 jurors to suﬀer serious emotional distress.\nThus, the court determined that the instructions administered\nin this case met Perkinsʹ demand by applying the objective ap-\nproach to both the speaker (Maier) and the listeners (the 2006\njurors).\n Lastly, as to Maierʹs argument that he was entitled to an\ninstruction with verbiage from the Perkins decision, the court\nof appeals distinguished between Wisconsin’s stalking statute\nand the statute at issue in Perkins, noting that the Perkins opin-\nion itself acknowledged that the true threats test required\nmodification for diﬀerent statutes. See Perkins, 626 N.W.2d. at\n770.\n We agree that the jury instructions accurately stated the\nelements of the crime. With respect to the true threats stand-\nard, the instructions included the essential elements of the\ndouble objective standard articulated by the Wisconsin Su-\npreme Court. In Perkins, the Wisconsin Supreme Court ex-\npressed concern that jury instructions did not inform the jury\nthat it had to apply an objective test to determine whether the\ndefendant in that case threatened a judge. Perkins, 626 N.W.2d\nat 772. In this case, the jury instructions included the double\nobjective standard demanded by Perkins. Although the jury\ninstructions did not mirror the language used in Perkins, the\ncourt of appeals made a reasonable determination that the\ngiven instructions provided a suﬃcient, albeit modified, ar-\nticulation of the Perkins true threats standard in the context of\nthe stalking statute. Because Perkins is not an unreasonable\napplication of clearly established Supreme Court precedent,\n\fNo. 18-2151 15\n\nand because the jury instruction was consistent with Perkins,\nthe jury instructions did not violate due process.\n D. The State Presented Suﬃcient Evidence to Convict Maier\n Finally, Maier contends that, even if an objective-intent\nstandard is permissible, the state produced insufficient evi-\ndence to support his conviction under that standard. He ar-\ngues the court of appeals’ opinion fails in three main ways.\nFirst, the court of appeals failed to apply the sufficiency stand-\nard with explicit reference to the Perkins standard, and its\nopinion is therefore contrary to Jackson v. Virginia, 443 U.S.\n307, 316 (1979). Second, the court of appeals only considered\nisolated passages from Maier’s letters to the jurors and not\n“all of the evidence at trial” that should have been considered.\nLastly, Maier attempts to argue that the court of appeals’\nopinion relied on an unreasonable reading of his letters. All\nthese arguments fail.\n Fourteenth Amendment due process requires that the\nstate must present sufficient evidence to prove each element\nof an alleged crime. See Jackson, 443 U.S. at 326. The crime’s\nsubstantive elements are defined by state law. Id. at 324 n.16.\nSufficiency of the evidence is reviewed under a different\nstandard on federal habeas review than on direct appeal be-\nfore the state court. “[T]he state appellate court determines\nwhether any rational trier of fact could have found the evi-\ndence sufficient; … a federal court may only overturn the ap-\npellate courtʹs finding of sufficient evidence if it was objec-\ntively unreasonable.” Saxon, 873 F.3d at 988. To warrant relief,\nthe state court’s application of federal law “must be ‘some-\nthing like lying well outside the boundaries of permissible\ndifferences of opinion.’” Id. at 987 (quoting Jackson v. Frank,\n348 F.3d 658, 662 (7th Cir. 2003)).\n\f16 No. 18-2151\n\n Maier contends that the court of appeals failed to specifi-\ncally find that the evidence satisfied the Perkins standard. His\nargument here is hard to follow. We understand his argument\nto be similar to his objection to the jury instructions: the court\nof appeals failed to apply the “true threats” language used in\nPerkins, and the evidence presented could not satisfy the\nstandard articulated in that case. However, we believe the\ncourt of appeals reasonably applied Perkins’ requirements.\nMaier might also be arguing that, because Perkins violates Su-\npreme Court precedent, the court of appeal’s sufficiency of\nthe evidence analysis was fatally flawed. In any event, we\nconclude that the court of appeals’ analysis was not objec-\ntively unreasonable.\n The court of appeals’ decision effectively applied the suf-\nficiency standard in this case with reference to each of the el-\nements of the stalking statute—including Perkins’ double ob-\njective standard. Moreover, the opinion points to evidence\nthat satisfies the objective standard from the perspective of a\nreasonable listener. The court of appeals’ opinion identified\nspecific language in both letters and gave examples of how\nthat evidence supported the jury’s finding that “a reasonable\nperson in the position of the 2006 jurors would have under-\nstood the letters to be threatening.” State v. Maier, 2014 WL\n1810151 at 9.\n And the court of appeals’ opinion implicitly but neces-\nsarily found that the evidence satisfied the objective standard\nfrom Maier’s perspective. The court held that the jury could\nhave reasonably determined that each letter was inde-\npendently threatening. Id. at 10. As the state points out,\nMaier sent a second letter to the jurors after learning from the\nnewspaper that at least one of the jurors found his first letter\n\fNo. 18-2151 17\n\nto be threatening and called law enforcement. This suggests\nthat at least with respect to the second letter, Maier was on\nnotice that the jurors would suffer serious emotional distress\nbecause of his communications. Significantly, one of Maier’s\nquestions in the first letter—the question asking jurors\nwhether they thought that Wood County acted professionally\nby distributing their names and addresses to Maier—indi-\ncates that Maier likely knew he should not be writing the ju-\nrors in the first place. And even aside from the content of\nMaier’s letters, consider, for example, what his very act of\nmailing the first letter communicated to the jurors: I know\nwho you are, I know you helped put me behind bars, and I\nknow where you live. Likewise, and without considering the\ncontent of Maier’s written words, his second letter communi-\ncated that he knew one of the jurors complained and that he\nwas paying attention. The court of appeals reasonably con-\ncluded that the state presented sufficient evidence to support\nMaier’s conviction.\n Maier also claims the court of appeals failed to consider all\nthe evidence available at trial, and instead only focused on\nisolated passages in his letters. He argues that, when the to-\ntality of the evidence is considered, the letters could have\nbeen viewed as nonthreatening. The Wisconsin Court of Ap-\npeals’ opinion focused on whether the facts presented at trial\njustified the juryʹs determination; it likewise focused on the\nportions of the record that support the juryʹs finding. This was\nappropriate because the court of appeals was required to view\nall the evidence in a manner favorable to the state and the con-\nviction. See State v. Poellinger, 451 N.W.2d 752 (Wis. 1990); see\nalso McDaniel v. Brown, 558 U.S. 120, 133 (2010). This focus\ndoes not, as Maier argues, ignore evidence more favorable to\nhim. Instead, the court acknowledged—but rejected—Maier’s\n\f18 No. 18-2151\n\ncharacterization of the letters. See Maier, 2014 WL 1810151 at\n8-9. None of Maier’s alternative explanations for his letters\nprovides so convincing an explanation that we deem the court\nof appeals’ opinion to be objectively unreasonable.\n Lastly, Maier attempts to argue that the court of appeals’\nopinion reflects an unreasonable interpretation of his letters.\nConsequently, he contends the opinion provides an unrea-\nsonable determination of the facts in light of the evidence pre-\nsented. See 28 U.S.C. § 2254(d)(2). Again, the court of appeals\nproperly reviewed the record in a light most favorable to the\nprosecution and conviction. The court’s opinion was not un-\nreasonable because it failed to construe the evidence as Maier\nwished—in a light most favorable to him. See Maier, 2014 WL\n1810151 at 9. Given this standard, we believe that the court’s\nopinion provided a reasonable application of this case’s facts.\n III. CONCLUSION\n Based on the foregoing, we believe the Wisconsin Court of\nAppeals did not unreasonably reject Maier’s numerous\nclaims. Maier failed to demonstrate that his conviction under\nthe stalking statute was contrary to, or involved an unreason-\nable application of, clearly established Federal law. Nor has\nhe demonstrated that the decision was based on an unreason-\nable determination of the facts in light of the evidence pre-\nsented at trial. AFFIRMED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4358321/", "author_raw": "Michael Stephen Kanne"}]}	KANNE	ROVNER	BARRETT	1		{"KANNE": ", Circuit", "ROVNER": ", Circuit", "BARRETT": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4581068/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Donald Maier v. Judy Smith\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-11\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-2151\nDONALD MAIER,\n Petitioner-Appellant,\n v.\n\nJUDY P. SMITH,\n Respondent-Appellee.\n ____________________\n\n Appeal from the United States District Court for the\n Western District of Wisconsin.\n No. 17-cv-365 — Barbara B. Crabb, Judge.\n ____________________\n\n ARGUED SEPTEMBER 25, 2018 — DECIDED JANUARY 11, 2019\n ____________________\n\n Before KANNE, ROVNER, and BARRETT, Circuit Judges.\n KANNE, Circuit Judge. Donald Maier appeals the district\ncourt’s denial of his petition for habeas corpus relief from his\nconviction under Wisconsin’s stalking statute. Five years after\na jury convicted Maier of threatening two Wisconsin state\ncourt judges, Maier sent two sets of letters to the former ju-\nrors—ostensibly seeking their help in his eﬀort to obtain a\ngovernor’s pardon. Several of the jurors found the letters\nthreatening or disturbing. Maier was charged and convicted\n\f2 No. 18-2151\n\nunder Wisconsin’s stalking statute. After appealing his con-\nviction in the Wisconsin state courts, Maier brought this peti-\ntion. Because the Wisconsin Court of Appeals’ decision was\nnot objectively unreasonable, we aﬃrm the district court’s de-\nnial of Maier’s petition.\n I. BACKGROUND\n A jury convicted Donald Maier of threatening two Wis-\nconsin state court judges in 2006. In November 2011, Maier\nmailed a handwritten letter to the men and women who\nserved as jurors in that case. Due to a clerical error, Maier ob-\ntained the names and addresses of the jurors in his case. The\njurors were not expecting his correspondence. The letter’s\nopening line announced, “Jury Duty is Not Over.” (all quota-\ntions include the letters’ original spelling, capitalization, and\npunctuation). The letter informed the jurors that after being\n“skrewed” and serving two years in prison, Maier was “going\nfor a Pardon with the Governor’s oﬃce.” The letter included\na handwritten questionnaire inviting the jurors to respond to\na series of “yes” or “no” questions. The first question asked\nthe jurors if they believed that Wood County “did a Profes-\nsional Job? Such as keeping your Name’s and addresses from\nsomeone like [Maier]?” Maier reminded the jurors that they\nhelped put him in prison, and observed, “Real good people in\nthere.” Maier’s next question asked the jurors whether he\ncould give the list of their names and addresses to the “people\n[Maier] had to live with?” Maier’s questionnaire then ad-\ndressed a litany of injustices he believed he suﬀered during\nhis prosecution, trial, and incarceration for the 2006 charges.\nMaier emphasized his mistreatment and mentioned his place-\nment in mental institutions.\n\fNo. 18-2151 3\n\n After airing his grievances, Maier finally asked the jurors\nwhether they believed they did the right thing in sending him\nto prison. Maier advised the jurors, “My story will be heard\nnation wide soon. Your names could be too. Because you\nhelped in the Judge Zappen conspiracy[.]” He closed the letter\nby encouraging the jurors to “do the right thing” and to mail\ntheir questionnaires to the governor’s Pardon Advisory Board\nand a copy to Maier, himself. He assured the jurors, “The\nsooner I get justice will be when everybody in the Wisconsin\nRapids police cover-up and the Judge Zappen conspiracy will\nget peace ‘No more letters’[.]”\n Maier mailed his missive, questionnaire, and pardon ap-\nplication to all 13 jurors. Three letters were returned as unde-\nliverable. Upon receipt, several of the former jurors immedi-\nately called the police. One of the former jurors and her hus-\nband, a police oﬃcer, contacted the Wood County Sheriﬀ’s\nDepartment to complain about the letter. She feared that\nMaier might retaliate against her for her role in his conviction.\nSheriﬀʹs Deputy Scott Goldberg drafted a report documenting\nthe complaint and in his report stated, ʺ[a]fter reading\nthrough the questions, none of the questions are actually\nthreatening but Oﬃcer Machon said he and his wife were ex-\ntremely concerned about the questions that were asked and\njust the fact that they were being contacted by this subject.ʺ\n A local newspaper later ran a one-sentence bulletin noting\nthat a female juror received a threatening letter from a man on\nwhose trial she served. The newspaper account caught\nMaier’s attention. He clipped the item and included it in a sec-\nond letter to the jurors, dated November 14, 2011. The second\nletter opened, “I read the paper too. My letter was not threat-\nening in anyway. I just want to let you see what kind of Idiots\n\f4 No. 18-2151\n\nyou helped put me in prison.” Maier then criticized the judges\ninvolved in the 2006 aﬀair and wrote, “’You have Nothing to\nfear from me’[.]” He closed his second letter by encouraging\nthe jurors to contact his state representative or the governor’s\noﬃce, and signed oﬀ as “Your friend from Planet of the Apes\nCourthouse In downtown Zappenville[.]”\n After Maier sent the second letter, the state charged him\nwith ten counts of stalking in violation of Wisconsin Statute\n§ 940.32—one count for each of the jurors who received his\nletters.\n A new jury convicted Maier on six of the ten counts and\nacquitted him on four counts. Maier was sentenced to fifteen\nyears in prison and twelve years of extended supervision.\n Maier moved the trial court for post-conviction relief. His\nmotion raised a litany of arguments, including the same four\narguments he brings in this petition. The trial court held a\nhearing and denied Maier’s motion. He then appealed both\nthe trial court’s denial of his motion and his conviction to the\nWisconsin Court of Appeals. State v. Maier, No. 2013AP1391–\nCR, 2014 WL 1810151 1 (Wis. Ct. App. May 8, 2014). It af-\nfirmed Maier’s conviction. Maier then appealed to the Wis-\nconsin Supreme Court, which denied review of his case.\nMaier unsuccessfully petitioned the United States Supreme\nCourt for a writ of certiorari. Maier v. Wisconsin, 136 S. Ct. 2011\n(2016). Maier then petitioned for federal post-conviction re-\nview under 28 U.S.C. § 2254. The district court denied his pe-\ntition and issued a certificate of appealability on May 2, 2018.\nMaier v. Tegels, No. 17-CV-365-BBC, 2018 WL 2049824, at 8\n(W.D. Wis. May 2, 2018). This appeal followed.\n\fNo. 18-2151 5\n\n II. ANALYSIS\n We review a district courtʹs denial of a habeas petition de\nnovo. Saxon v. Lashbrook, 873 F.3d 982, 987 (7th Cir. 2017). We\nreview issues of fact for clear error. Adams v. Bertrand, 453 F.3d\n428, 432 (7th Cir. 2006). Maier’s petition for habeas corpus re-\nlief is governed by the Antiterrorism and Eﬀective Death Pen-\nalty Act of 1996 (AEDPA). AEDPA provides that habeas peti-\ntions shall not be granted unless the adjudication of the claim\nresulted in a decision that was 1) contrary to, or 2) involved\nan unreasonable application of Federal law clearly estab-\nlished in the holdings of the Supreme Court, or 3) resulted in\na decision that was based on an unreasonable determination\nof the facts in light of the evidence presented in the state court\nproceeding. See 28 U.S.C. § 2254; Harrington v. Richter, 562 U.S.\n86, 100 (2011).\n We review the Wisconsin Court of Appeals’ opinion,\nwhich was the last reasoned state-court decision on the mer-\nits. Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). “[O]n habeas\nreview, federal courts are usually limited to a deferential re-\nview of the reasonableness, rather than the absolute correct-\nness, of a state court decision.” Mosley v. Atchison, 689 F.3d\n838, 844 (7th Cir. 2012) (citing Richter, 562 U.S. at 101–102\n(2011)). “For purposes of reasonableness review, ‘a state pris-\noner must show that the state courtʹs ruling on the claim being\npresented in federal court was so lacking in justification that\nthere was an error well understood and comprehended in ex-\nisting law beyond any possibility for fairminded disagree-\nment.’” Id. (quoting Richter, 562 U.S. at 103).\n Wisconsin’s stalking statute prohibits,\n intentionally engag[ing] in a course of conduct di-\n rected at a specific person that would cause a\n\f6 No. 18-2151\n\n reasonable person under the same circumstances to\n suﬀer serious emotional distress or to fear bodily in-\n jury to or the death of himself or herself or a member\n of his or her family or household.\nWis. Stat. § 940.32(2)(a). The state must prove the defendant\nknew or should have known that one of his or her acts would\nlikely cause the victim serious emotional distress. Id. at\n§ 940.32(2)(b). The acts must have also actually caused the vic-\ntim serious emotional distress. Id. at § 940.32(2)(c).\n Maier challenges his conviction in four ways. First, Maier\nclaims he received ineﬀective assistance of counsel because\nhis trial counsel failed to introduce evidence that Maier be-\nlieves would have negated crucial elements of the Wisconsin\nstalking statute. Second, he argues that the Wisconsin stalking\nstatute—as it was applied to him—violated the First Amend-\nment. Third, Maier contends that the jury instructions given\nby the trial court misstated Wisconsin law with respect to the\n“true threats” test. According to Maier, the erroneous jury in-\nstructions failed to hold the state to its burden of proof and\ndeprived him of his Fourteenth Amendment right to due pro-\ncess of law. Lastly, he claims the state presented insuﬃcient\nevidence to support his conviction. We review each argument\nin turn under AEDPA’s deferential standard of review.\n A. Maier Received Eﬀective Assistance of Counsel\n Maier argues he received ineﬀective assistance of counsel\nbecause his trial attorney failed to introduce evidence that\nMaier believes would have aided his defense. Specifically,\nMaier claims that his trial counsel should have introduced ev-\nidence showing that he was genuinely applying for a pardon\nand evidence that a few people—including law enforcement\noﬃcials—did not find the first letter threatening.\n\fNo. 18-2151 7\n\n ʺTo establish ineﬀective assistance of trial counsel, a peti-\ntioner must show that counsel’s performance was deficient\nand that the deficient performance prejudiced his defense.”\nJohnson v. Thurmer, 624 F.3d 786, 791 (7th Cir. 2010) (citing\nStrickland v. Washington, 466 U.S. 668, 689–92 (1984)). We start\nour review assuming that Maier’s counsel “rendered ade-\nquate assistance and made all significant decisions in the ex-\nercise of reasonable professional judgment.” Id. (quoting\nStrickland, 466 U.S. at 690). To overcome that assumption,\nMaier must show that this trial counsel’s representation “‘fell\nbelow an objective standard of reasonableness’ based on pre-\nvailing norms of professional conduct.” Id. (quoting Strick-\nland, 466 U.S. at 688). “In cases such as this, where counsel has\nsucceeded in having his client acquitted of at least one of the\ncharges brought, the presumption is likely to be even more\ndiﬃcult to rebut.” United States v. Banks, 405 F.3d 559, 568 (7th\nCir. 2005). Maier must also establish that the deficient perfor-\nmance prejudiced him by demonstrating that, “there is a rea-\nsonable probability that, but for counsel’s unprofessional er-\nrors, the result of the proceeding would have been diﬀerent.\nA reasonable probability is a probability suﬃcient to under-\nmine confidence in the outcome.” Strickland, 466 U.S. at 694.\n In this case, Maier contends that two types of evidence\nshould have been introduced to help negate the stalking stat-\nute’s mens rea element. First, Maier believes that his attorney\nshould have introduced testimony from Maier’s neighbor and\ndocuments related to his pardon application. Maier explains\nthat he discussed his pardon application and the letters with\nhis neighbor and that the two traveled to Madison together to\npick up the necessary paperwork. According to Maier, his\nneighbor could have testified to Maier’s sincerity in seeking\nthe pardon and his lack of animosity toward the jurors.\n\f8 No. 18-2151\n\nSimilarly, his attorney could have identified documents sub-\nstantiating his pursuit of a pardon. Maier believes this evi-\ndence could have helped prove that he did not actually intend\nfor the letters to threaten.\n Second, Maier believes that his attorney performed defi-\nciently by not introducing evidence of Wisconsin law enforce-\nment oﬃcials’ reactions to the letters. Specifically, Maier\nthinks his attorney should have introduced Deputy Gold-\nberg’s incident report into evidence. Maier argues this was\nrelevant to show that at least one person who read the first\nletter did not find it threatening. Maier also argues that the\nfact that he was not contacted by law enforcement after send-\ning the first letter indicates that letter was not threatening.\n The Wisconsin Court of Appeals addressed and rejected\nthese arguments. With respect to evidence of Maier’s desire\nfor a pardon, the court determined that Maier was not preju-\ndiced by his counselʹs failure to put on the evidence, noting\nthat whether Maier earnestly desired a pardon is irrelevant to\nthe fact that he should have known that jurors would perceive\nhis letters as threatening. Further, the court of appeals rea-\nsoned that Maier could have simultaneously sincerely desired\na pardon and intended to threaten the jurors into supporting\nhis application.\n The court of appeals also rejected Maier’s argument that\nhis trial counsel performed deficiently by failing to introduce\nevidence of law enforcement oﬃcials’ reactions to the letters.\nThe court of appeals observed that the reportʹs significance\npaled in comparison to the letters themselves and the jurors’\ntestimony about the letters’ impact. Further, the court pointed\nout that the deputy sheriﬀ’s report only stated that none of\nthe first letterʹs questions were actually threatening—the\n\fNo. 18-2151 9\n\nreport did not characterize the first letter as a whole or both\nletters taken together as non-threatening. The district court\nsimilarly remarked that it is hard to know, exactly, how this\nevidence would have helped Maier: the impressions of law\nenforcement oﬃcers provide little perspective on whether\nMaier should have known that his letters would have been\nperceived as threatening by the jurors.\n We agree. As noted above, the statute criminalizes behav-\nior that ʺwould cause a reasonable person under the same cir-\ncumstances to suﬀer serious emotional distress[.]” Wis. Stat.\n§ 940.32(2)(a) (emphasis added). Given that the statute fo-\ncuses on the impact of Maier’s conduct on those it targeted, it\nis hard to understand how failing to introduce evidence of\nnon-jurors’ impressions could have harmed Maierʹs defense\nto such an extent that it changed the outcome. Consequently,\nMaier fails to show that the court of appeals’ determination\nthat he received eﬀective assistance of counsel was unreason-\nable.\n B. The Court of Appealsʹ First Amendment Analysis was Rea-\n sonable\n Maier urges that Wisconsin’s stalking statute was uncon-\nstitutional as the state applied it against him. Specifically,\nMaier argues that his conviction under the statute punished\nhim for unintentional threats: speech protected by the First\nAmendment. In support of his claim, Maier contends the Su-\npreme Court has established that the ʺtrue threatsʺ exception\nto the First Amendment requires the state to prove that the\nspeaker actually intends to threaten others. Unfortunately for\nMaier, we do not agree that the Supreme Court clearly estab-\nlished a standard for the true threats doctrine, and conse-\nquently his claim fails.\n\f10 No. 18-2151\n\n Although the First Amendment generally protects the\nright to free speech, this protection does not extend to all\nspeech. “[T]he First Amendment does not preclude re-\nstrictions on certain categories of speech having little or no\nsocial value, and threats are one such category.” United States\nv. Parr, 545 F.3d 491, 496–497 (7th Cir. 2008) (citing Virginia v.\nBlack, 538 U.S. 343, 358–59 (2003)). “A statement qualifies as a\n‘true threat,’ unprotected by the First Amendment, if it is ‘a\nserious expression of an intent to commit an act of unlawful\nviolence to a particular individual or group of individuals.’”\nId. at 497 (quoting Black, 538 U.S. at 359). Black involved a con-\nstitutional challenge to Virginiaʹs cross burning statute and\nthe Supreme Court produced a handful of splintered opinions\nattempting to articulate the proper standard.\n Before Black, this and other circuits employed an objective\n“reasonable person” standard to determine whether speech\nconstituted a true threat. See id. at 499; see also United States v.\nFuller, 387 F.3d 643, 647 (7th Cir. 2004) (“[T]he objective, rea-\nsonable person standard does not tread on free speech.”). Un-\nder that approach, courts would ask whether either a reason-\nable speaker would expect his words to be interpreted as a\nthreat or whether a reasonable listener would interpret the\nspeaker’s words to be a threat. Parr, 545 F.3d at 499. After\nBlack, however, we and other courts have wondered whether\nspeech only qualifies as a true threat if the speaker subjec-\ntively intended his words to be threatening. Id. at 499–500.\n The Wisconsin courts employed a double-objective stand-\nard in Maier’s case—meaning the state had to satisfy the ob-\njective standard from the perspectives of both the speaker and\nthe listener. Maier contends Black rendered this approach un-\nconstitutional and that the state should have been required to\n\fNo. 18-2151 11\n\nmeet its burden of proof under the subjective standard. Alt-\nhough our opinion in Parr recognized that “it is more likely\n[after Black] that an entirely objective definition [of true\nthreats] is no longer tenable[,]” the Supreme Court has not\nmade that ultimate determination. Id. at 500.\n In this habeas corpus action, Maier must show that the\nstate courtʹs adjudication of his case resulted in a decision that\nwas “contrary to, or involved an unreasonable application of,\nclearly established Federal law, as determined by the Supreme\nCourt.” 28 U.S.C. § 2254(d)(1). Additionally, as the Wisconsin\nCourt of Appeals noted, a majority of courts that addressed\nthe issue determined that the objective approach remains vi-\nable after Black. See Maier, 2014 WL 1810151 at 5; see also\nUnited States v. Elonis, 730 F.3d 321, 330 (3d Cir. 2013). Because\nthe Supreme Court has not definitively answered the ques-\ntion, Wisconsin’s interpretation of that doctrine is not con-\ntrary to or an unreasonable application of clearly established\nFederal law.\n C. The Jury Instructions Held the State to Its Burden of Proof\n Maier also argues he was deprived of his right to due pro-\ncess because the jury instructions allegedly misstated Wiscon-\nsin law and eﬀectively relieved the state of its burden of proof.\nMaier contends that the instructions failed to properly articu-\nlate Wisconsin’s “true threat” standard, as established by the\nWisconsin Supreme Court in State v. Perkins, 626 N.W.2d 762,\n770 (Wis. 2001).\n A defendant’s right to due process guarantees that the\nstate must prove every element of the alleged crime beyond a\nreasonable doubt. Middleton v. McNeil, 541 U.S. 433, 437\n(2004). A jury instruction violates due process if it fails to give\n\f12 No. 18-2151\n\neﬀect to this requirement. Id. However, habeas precedent\nplaces an especially heavy burden on a defendant seeking to\nshow constitutional error from a jury instruction that quotes\nstate law. Waddington v. Sarausad, 555 U.S. 179, 190 (2009); Bur-\nris v. Smith, 819 F.3d 1037, 1041 (7th Cir. 2016). “[N]ot every\nambiguity, inconsistency, or deficiency in a jury instruction\nrises to the level of a due process violation.” Middleton, 541\nU.S. at 437. Maier must show both that the instruction was\ndeficient and that “there was a reasonable likelihood that the\njury applied the instruction in a way that relieved the State of\nits burden of proving every element of the crime beyond a\nreasonable doubt.” Waddington, 555 U.S. at 190 (internal quo-\ntations omitted). We must determine, “whether the ailing in-\nstruction by itself so infected the entire trial that the resulting\nconviction violates due process.” Estelle v. McGuire, 502 U.S.\n62, 72 (1991).\n In Perkins, the Wisconsin Supreme Court addressed jury\ninstructions administered in the trial of a man accused of\nthreatening a judge in violation of state law. See Wis. Stat.\n§ 940.203. Under that statute, the state bore the burden of\nproving the defendant threatened to cause bodily harm to a\njudge. See Perkins, 626 N.W.2d at 771. The Wisconsin Supreme\nCourt deemed the jury instructions in that case insuﬃcient\nbecause they failed to define “threaten[ing] to cause bodily\nharm.” Id. at 772. Specifically,\n the jury was not instructed that it had to apply an\n objective test in the first element to determine\n whether the defendant had ‘threatened to cause\n bodily harm,’ that is, that a speaker would reasona-\n bly foresee that a listener would reasonably inter-\n pret the statement to be a serious expression of a\n purpose to inflict bodily harm, as distinguished\n\fNo. 18-2151 13\n\n from hyperbole, jest, innocuous talk, expressions of\n political views, or other similarly protected speech.\n\nId.\n The Perkins court held that without language explaining\nthe statuteʹs use of the narrower, legal definition of\n“threaten,” a reasonable likelihood existed that the jury inter-\npreted and applied the given instruction to the detriment of\nPerkins’ right to free speech. Id. at 773.\n According to Maier, a similar thing happened here. He\npins the jury instructions’ deficiency on their definition of “se-\nrious emotional distress.” The instructions quoted the stalk-\ning statute and explained that a defendant causes the victim\nto experience serious emotional distress if his course of con-\nduct caused the victim to “feel terrified, intimidated, threat-\nened, harassed, or tormented.” Wis. Stat. § 940.32(1)(d). Maier\nclaims that this definition of serious emotional distress in the\ninstructions eﬀectively allowed the jury to convict him for\ngenerally threatening (but constitutionally protected) lan-\nguage. He insists the instructions should have included the\nPerkins language distinguishing a serious expression of a pur-\npose to inflict bodily harm from “hyperbole, jest, innocuous\ntalk, expressions of political views, or other similarly pro-\ntected speech.” Perkins, 626 N.W.2d at 772.\n The Wisconsin Court of Appeals disagreed. It explained\nthat Perkins required that the state must prove true threats on\nan objective standard from the perspective of both the listener\nand the speaker. See Maier, 2014 WL 1810151 at 4. The court\nnoted that the instructions told the jury to find Maier guilty\nonly if his letters would have caused a reasonable person in\nthe position of the 2006 jurors to experience serious emotional\ndistress and explained that this satisfied the objective\n\f14 No. 18-2151\n\nstandard from the jurors’ perspective. The court also observed\nthat the instructions told the jury to find Maier guilty only if\nhe knew or should have known that his letters would have\ncaused the 2006 jurors to suﬀer serious emotional distress.\nThus, the court determined that the instructions administered\nin this case met Perkinsʹ demand by applying the objective ap-\nproach to both the speaker (Maier) and the listeners (the 2006\njurors).\n Lastly, as to Maierʹs argument that he was entitled to an\ninstruction with verbiage from the Perkins decision, the court\nof appeals distinguished between Wisconsin’s stalking statute\nand the statute at issue in Perkins, noting that the Perkins opin-\nion itself acknowledged that the true threats test required\nmodification for diﬀerent statutes. See Perkins, 626 N.W.2d. at\n770.\n We agree that the jury instructions accurately stated the\nelements of the crime. With respect to the true threats stand-\nard, the instructions included the essential elements of the\ndouble objective standard articulated by the Wisconsin Su-\npreme Court. In Perkins, the Wisconsin Supreme Court ex-\npressed concern that jury instructions did not inform the jury\nthat it had to apply an objective test to determine whether the\ndefendant in that case threatened a judge. Perkins, 626 N.W.2d\nat 772. In this case, the jury instructions included the double\nobjective standard demanded by Perkins. Although the jury\ninstructions did not mirror the language used in Perkins, the\ncourt of appeals made a reasonable determination that the\ngiven instructions provided a suﬃcient, albeit modified, ar-\nticulation of the Perkins true threats standard in the context of\nthe stalking statute. Because Perkins is not an unreasonable\napplication of clearly established Supreme Court precedent,\n\fNo. 18-2151 15\n\nand because the jury instruction was consistent with Perkins,\nthe jury instructions did not violate due process.\n D. The State Presented Suﬃcient Evidence to Convict Maier\n Finally, Maier contends that, even if an objective-intent\nstandard is permissible, the state produced insufficient evi-\ndence to support his conviction under that standard. He ar-\ngues the court of appeals’ opinion fails in three main ways.\nFirst, the court of appeals failed to apply the sufficiency stand-\nard with explicit reference to the Perkins standard, and its\nopinion is therefore contrary to Jackson v. Virginia, 443 U.S.\n307, 316 (1979). Second, the court of appeals only considered\nisolated passages from Maier’s letters to the jurors and not\n“all of the evidence at trial” that should have been considered.\nLastly, Maier attempts to argue that the court of appeals’\nopinion relied on an unreasonable reading of his letters. All\nthese arguments fail.\n Fourteenth Amendment due process requires that the\nstate must present sufficient evidence to prove each element\nof an alleged crime. See Jackson, 443 U.S. at 326. The crime’s\nsubstantive elements are defined by state law. Id. at 324 n.16.\nSufficiency of the evidence is reviewed under a different\nstandard on federal habeas review than on direct appeal be-\nfore the state court. “[T]he state appellate court determines\nwhether any rational trier of fact could have found the evi-\ndence sufficient; … a federal court may only overturn the ap-\npellate courtʹs finding of sufficient evidence if it was objec-\ntively unreasonable.” Saxon, 873 F.3d at 988. To warrant relief,\nthe state court’s application of federal law “must be ‘some-\nthing like lying well outside the boundaries of permissible\ndifferences of opinion.’” Id. at 987 (quoting Jackson v. Frank,\n348 F.3d 658, 662 (7th Cir. 2003)).\n\f16 No. 18-2151\n\n Maier contends that the court of appeals failed to specifi-\ncally find that the evidence satisfied the Perkins standard. His\nargument here is hard to follow. We understand his argument\nto be similar to his objection to the jury instructions: the court\nof appeals failed to apply the “true threats” language used in\nPerkins, and the evidence presented could not satisfy the\nstandard articulated in that case. However, we believe the\ncourt of appeals reasonably applied Perkins’ requirements.\nMaier might also be arguing that, because Perkins violates Su-\npreme Court precedent, the court of appeal’s sufficiency of\nthe evidence analysis was fatally flawed. In any event, we\nconclude that the court of appeals’ analysis was not objec-\ntively unreasonable.\n The court of appeals’ decision effectively applied the suf-\nficiency standard in this case with reference to each of the el-\nements of the stalking statute—including Perkins’ double ob-\njective standard. Moreover, the opinion points to evidence\nthat satisfies the objective standard from the perspective of a\nreasonable listener. The court of appeals’ opinion identified\nspecific language in both letters and gave examples of how\nthat evidence supported the jury’s finding that “a reasonable\nperson in the position of the 2006 jurors would have under-\nstood the letters to be threatening.” State v. Maier, 2014 WL\n1810151 at 9.\n And the court of appeals’ opinion implicitly but neces-\nsarily found that the evidence satisfied the objective standard\nfrom Maier’s perspective. The court held that the jury could\nhave reasonably determined that each letter was inde-\npendently threatening. Id. at 10. As the state points out,\nMaier sent a second letter to the jurors after learning from the\nnewspaper that at least one of the jurors found his first letter\n\fNo. 18-2151 17\n\nto be threatening and called law enforcement. This suggests\nthat at least with respect to the second letter, Maier was on\nnotice that the jurors would suffer serious emotional distress\nbecause of his communications. Significantly, one of Maier’s\nquestions in the first letter—the question asking jurors\nwhether they thought that Wood County acted professionally\nby distributing their names and addresses to Maier—indi-\ncates that Maier likely knew he should not be writing the ju-\nrors in the first place. And even aside from the content of\nMaier’s letters, consider, for example, what his very act of\nmailing the first letter communicated to the jurors: I know\nwho you are, I know you helped put me behind bars, and I\nknow where you live. Likewise, and without considering the\ncontent of Maier’s written words, his second letter communi-\ncated that he knew one of the jurors complained and that he\nwas paying attention. The court of appeals reasonably con-\ncluded that the state presented sufficient evidence to support\nMaier’s conviction.\n Maier also claims the court of appeals failed to consider all\nthe evidence available at trial, and instead only focused on\nisolated passages in his letters. He argues that, when the to-\ntality of the evidence is considered, the letters could have\nbeen viewed as nonthreatening. The Wisconsin Court of Ap-\npeals’ opinion focused on whether the facts presented at trial\njustified the juryʹs determination; it likewise focused on the\nportions of the record that support the juryʹs finding. This was\nappropriate because the court of appeals was required to view\nall the evidence in a manner favorable to the state and the con-\nviction. See State v. Poellinger, 451 N.W.2d 752 (Wis. 1990); see\nalso McDaniel v. Brown, 558 U.S. 120, 133 (2010). This focus\ndoes not, as Maier argues, ignore evidence more favorable to\nhim. Instead, the court acknowledged—but rejected—Maier’s\n\f18 No. 18-2151\n\ncharacterization of the letters. See Maier, 2014 WL 1810151 at\n8-9. None of Maier’s alternative explanations for his letters\nprovides so convincing an explanation that we deem the court\nof appeals’ opinion to be objectively unreasonable.\n Lastly, Maier attempts to argue that the court of appeals’\nopinion reflects an unreasonable interpretation of his letters.\nConsequently, he contends the opinion provides an unrea-\nsonable determination of the facts in light of the evidence pre-\nsented. See 28 U.S.C. § 2254(d)(2). Again, the court of appeals\nproperly reviewed the record in a light most favorable to the\nprosecution and conviction. The court’s opinion was not un-\nreasonable because it failed to construe the evidence as Maier\nwished—in a light most favorable to him. See Maier, 2014 WL\n1810151 at 9. Given this standard, we believe that the court’s\nopinion provided a reasonable application of this case’s facts.\n III. CONCLUSION\n Based on the foregoing, we believe the Wisconsin Court of\nAppeals did not unreasonably reject Maier’s numerous\nclaims. Maier failed to demonstrate that his conviction under\nthe stalking statute was contrary to, or involved an unreason-\nable application of, clearly established Federal law. Nor has\nhe demonstrated that the decision was based on an unreason-\nable determination of the facts in light of the evidence pre-\nsented at trial. AFFIRMED.\n[END_CASE]", "role": "user" } ]
4,581,202	KEEP CHICAGO LIVABLE, an Illinois Not-For-Profit Corporation, Et Al., Plaintiffs-Appellants, v. CITY OF CHICAGO, Defendant-Appellee.	Keep Chicago Livable v. City of Chicago	2019-01-14	17-1656 & 17-2846	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Flaum, Easterbrook, Scudder", "parties": "", "opinions": [{"author": "SCUDDER, Circuit Judge", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNos. 17-1656 & 17-2846\nKEEP CHICAGO LIVABLE, an Illinois not-for-profit corporation,\net al.,\n Plaintiffs-Appellants,\n\n v.\n\nCITY OF CHICAGO,\n Defendant-Appellee.\n ____________________\n\n Appeals from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 1:16-cv-10371 — Sara L. Ellis, Judge.\n ____________________\n\n ARGUED OCTOBER 22, 2018 — DECIDED JANUARY 14, 2019\n ____________________\n\n Before FLAUM, EASTERBROOK, and SCUDDER, Circuit Judges.\n SCUDDER, Circuit Judge. An organization known as Keep\nChicago Livable and six individuals challenge the constitu-\ntionality of Chicago’s Shared Housing Ordinance. The City\npassed the Ordinance in 2016 to regulate home-sharing activ-\nities, including services oﬀered by companies like Airbnb. The\ndistrict court denied a request for a preliminary injunction on\ncertain claims and later dismissed without prejudice the\n\f2 Nos. 17-1656 & 17-2846\n\nremaining claims from an amended complaint. These two ap-\npeals then followed. We now vacate the district court’s deci-\nsions, as we cannot say with any conﬁdence that any named\nplaintiﬀ—Keep Chicago Livable or any of the six individu-\nals—has pleaded or otherwise established suﬃcient injury to\nconfer the subject matter jurisdiction necessary to proceed to\nthe merits of any claim.\n We have before us an organization and individuals with\nstrongly-held views about the constitutionality of the City’s\nOrdinance, but Article III of the Constitution requires more:\nour authority is limited to deciding cases or controversies be-\ntween adverse litigants, and without a clear indication that at\nleast one named plaintiﬀ has an actual or imminent injury, we\nhave no authority to go further. So we remand to the district\ncourt to make a determination of standing and to proceed if\nand as appropriate from there.\n I\n A\n Home-sharing websites like Airbnb oﬀer homeowners op-\nportunities to rent their homes on a short-term basis. These\nonline platforms operate as intermediaries by oﬀering owners\na forum to advertise their properties, helping prospective\nrenters ﬁnd rooms and houses for temporary stays, and facil-\nitating rental transactions. In June 2016 the City of Chicago\nenacted its Shared Housing Ordinance to regulate these short-\nterm housing arrangements. The Ordinance imposes a range\nof requirements and restrictions, but all that is necessary here\nis a brief and general overview.\n The Ordinance requires interested hosts to register with\nthe City and acquire a business license before listing their\n\fNos. 17-1656 & 17-2846 3\n\nunits for rent online. The licensing standards bring with them\ngeographic eligibility requirements, restrictions on how many\nunits within a larger building can be rented, and a list of\nbuildings where such rentals are prohibited. Approved hosts\nare then subject to health, safety, and reporting requirements,\nincluding, for example, supplying clean linens and sanitized\ncooking utensils, disposing of waste and leftover food from\nhost properties, and reporting illegal activity known to have\noccurred within a rented unit. Failure to comply subjects reg-\nistered hosts to ﬁnes and other penalties, including revocation\nof their rental license.\n B\n Keep Chicago Livable, a non-proﬁt organization that\nfocuses on educating home-sharing hosts, and individual\nplaintiﬀs challenged the constitutionality of the Ordinance in\nthe district court. In their original complaint, Keep Chicago\nLivable and its president Benjamin Wolf alleged that the\nOrdinance violated the First Amendment by impermissibly\nrestraining non-commercial speech as well as by compelling\nspeech through content-based disclosure requirements. The\ncomplaint also characterized the Ordinance as “so prolix as to\nbe incomprehensible” and thus void for vagueness under the\nDue Process Clause.\n In February 2017 the City modiﬁed portions of the Ordi-\nnance, prompting Keep Chicago Livable and Wolf to ﬁle an\namended complaint. The new complaint added ﬁve new in-\ndividual plaintiﬀs and new claims alleging that the amended\nOrdinance oﬀends not only their alleged First Amendment\nright to intimate and expressive association, but also the\nEqual Protection Clause by arbitrarily treating shared-\n\f4 Nos. 17-1656 & 17-2846\n\nhousing arrangements diﬀerently than guest suite and hotel\nrentals.\n C\n Before us are two appeals, which we have consolidated,\nfrom two orders entered by the district court. First, in the or-\nder leading to appeal No. 17-1656, the district court denied\nplaintiﬀs’ motion for a preliminary injunction on their free\nspeech and vagueness claims. The main thrust of the district\ncourt’s reasoning was that the Ordinance regulates conduct—\nin particular, economic activity—not speech. And plaintiﬀs’\nvagueness challenge, the district court determined, was too\nundeveloped to warrant a preliminary injunction. Second, in\nthe order leading to appeal No. 17-2846, the district court dis-\nmissed without prejudice the new claims added by and re-\nmaining in plaintiﬀs’ amended complaint, stating that those\nclaims could be reﬁled and revisited following this court’s de-\ncision on the merits of the claims at issue in the ﬁrst appeal.\n Both parties devote their appellate briefs to debating\nwhether the district court properly denied plaintiﬀs’ request\nfor a preliminary injunction. For their part, plaintiﬀs also spill\nconsiderable ink on the substance of their remaining claims,\nwhich the district court dismissed without prejudice and\nwithout addressing their merits. Neither party devoted atten-\ntion to the threshold issue—federal subject matter jurisdic-\ntion—which leads us to vacate the district court’s decisions.\n II\n Unsure from plaintiﬀs’ complaints and the district court\nrecord whether any named plaintiﬀ had the requisite injury\nor threat of injury to establish the standing necessary for fed-\neral subject matter jurisdiction, we raised the question at oral\n\fNos. 17-1656 & 17-2846 5\n\nargument and followed by ordering supplemental brieﬁng.\nWe invited the parties to supply information on the standing\nof not only each individual named as a plaintiﬀ, but also Keep\nChicago Livable as an organization.\n A\n We begin with the individual plaintiﬀs. While the\namended complaint names six individuals as plaintiﬀs, the\nrequisite standing inquiry—”an essential and unchanging\npart of the case-or-controversy requirement of Article III”—\nproceeds person-by-person. Lujan v. Defenders of Wildlife, 504\nU.S. 555, 560 (1992). Standing requires a threefold demonstra-\ntion of “(1) an injury in-fact; (2) fairly traceable to the defend-\nant’s action; and (3) capable of being redressed by a favorable\ndecision from the court.” Pavrati Corp. v. City of Oak Forest, Ill.,\n630 F.3d 512, 516 (7th Cir. 2010) (citing Lujan, 504 U.S. at 560–\n61). The alleged injury must be not just “concrete and partic-\nularized,” but also “actual and imminent, not conjectural or\nhypothetical.” Lujan, 504 U.S. at 560; see also Spokeo, Inc. v.\nRobins, 136 S. Ct. 1540, 1547–48 (2016).\n The necessity of demonstrating and maintaining standing\ndoes not subside as litigation proceeds. To the contrary,\n“standing must be present at all stages of the litigation, in-\ncluding on appeal.” Pavrati Corp., 630 F.3d at 516. Or, perhaps\nmore precisely as applied here, the asserted injury in-fact (and\nthus the requirements of concreteness, particularity, actuality,\nand imminence) must remain throughout the litigation, lest a\ncase or controversy cease to exist and become moot. See\nFriends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528\nU.S. 167, 189 (2000); see also United States v. Accra Pac, Inc., 173\nF.3d 630, 633 (7th Cir. 1999). The burden of making this show-\ning—of demonstrating the requisite injury to invoke federal\n\f6 Nos. 17-1656 & 17-2846\n\njurisdiction—rests with the plaintiﬀ. See Spokeo, 136 S. Ct. at\n1547.\n Using these standards, we cannot conclude with\nconﬁdence that any named plaintiﬀ presently has standing. We\nemphasize that our inquiry focuses on the here and now—\nstanding at the time of these appeals—because meaningful\ntime has passed since the original complaint was ﬁled (in\nNovember 2016), and the plaintiﬀs’ supplemental brief\nreveals that the passage of time has resulted in changed facts\nand circumstances for each of the six individuals named as\nplaintiﬀs in the amended complaint (ﬁled in February 2017).\nHere is what we are able to discern:\n • Benjamin Wolf served as Keep Chicago\n Livable’s ﬁrst president and, as alleged in the\n original complaint, not only used Airbnb to rent\n his home in Chicago, but also intended to\n continue doing so. According to plaintiﬀs’\n supplemental brief, however, Wolf has since\n sold his property in Chicago and moved to\n Ohio.\n • Susan Maller lives in a Chicago apartment and,\n as alleged in the amended complaint, was pre-\n cluded from listing it on Airbnb because of the\n “harassment of her building’s property man-\n ager.” Plaintiﬀs’ supplemental brief does not\n further explain the harassment and merely\n states—without any additional allegation—that\n Maller has “ceased Airbnb operations due to the\n restrictions of the Shared Housing Ordinance.”\n\fNos. 17-1656 & 17-2846 7\n\n • Danielle McCarron once lived in an apartment\n appearing on the City’s Prohibited Buildings\n List but has since moved. And, as with Maller,\n plaintiﬀs’ supplemental brief summarily says\n that, because of the City’s Ordinance, she is no\n longer attempting to participate in Airbnb.\n • Antoinette Wonsey lives in Chicago and, ac-\n cording to the amended complaint, is an\n “Airbnb host manager” who helps guests in her\n neighborhood ﬁnd accommodations. Without\n any particularity, she alleges that she no longer\n engages in these activities because of the Ordi-\n nance.\n • Monica Wolf lives in Kentucky but frequently\n visits Chicago and in the amended complaint\n alleged that the Ordinance limited her preferred\n rental options. Plaintiﬀs’ supplemental brief\n indicates Wolf has not returned to Chicago,\n “having been denied full access to all hosts who\n would otherwise list on Airbnb.”\n • John Doe is a citizen of Canada who frequently\n used Airbnb to visit Chicago. In the amended\n complaint, he alleged that his ability to\n “associate with Chicagoans is inhibited by the\n Prohibited Buildings List.” Plaintiﬀs’\n supplemental brief says that Doe, much like\n Monica Wolf, has not returned to Chicago since\n the Ordinance went into eﬀect.\n None of this adds up to the clear, requisite showing of an\nongoing, concrete, and particularized injury caused by the\n\f8 Nos. 17-1656 & 17-2846\n\nOrdinance and capable of being redressed by a favorable\nruling in these appeals. No longer owning property in\nChicago, Benjamin Wolf’s claims have become moot; Maller,\nMcCarron, and Wonsey allege with no particularity how the\nOrdinance (and not some other factor) is preventing or\nhampering any of their own home-sharing activities in\nChicago; and the out-of-town renters, Monica Wolf and Doe,\ndo not convey with suﬃcient clarity or particularity whether\nthey still wish to visit Chicago and, if so, how the Ordinance\nis chilling or inhibiting them from doing so.\n Our conclusion is narrow—limited to and conﬁned by the\ninformation before us—and handicapped by neither party fo-\ncusing on standing before these appeals. It may be on remand,\nperhaps following additional brieﬁng or upon the ﬁling of a\nsecond amended complaint, that at least one individual plain-\ntiﬀ is able to establish standing and thereby jumpstart this lit-\nigation, as the plaintiﬀs so plainly wish to do. But Article III’s\ncase or controversy mandate does not allow us to take the\nshortcut of moving to the merits of plaintiﬀs’ claims before\nensuring the presence of a plaintiﬀ with standing. See Steel Co.\nv. Citizens for a Better Env’t, 523 U.S. 83, 94–96 (1998).\n B\n We reach the same conclusion when turning our focus to\nKeep Chicago Livable. The organization is an Illinois non-\nproﬁt corporation with the stated goal of educating Chicago\nhosts about compliance with state and local home-sharing\nlaws. In its original and amended complaints, the\norganization alleged that the Ordinance burdens its ability “to\nperform its function of educating and advising hosts and\nputative hosts as to their proper rights and duties under this\nnew law, while the aforementioned constitutional questions\n\fNos. 17-1656 & 17-2846 9\n\nremain unresolved.” This allegation suggests that Keep\nChicago Livable brought its lawsuit to vindicate an injury to\nthe organization itself. But in its supplemental brief the\norganization states that it is suing not only “on its own\nbehalf,” but also “as a representative association” on behalf of\nits members. These distinctions matter.\n If Keep Chicago Livable is suing to remedy an injury to the\norganization, the allegations in the original and amended\ncomplaints fall short of establishing standing. All Keep\nChicago Livable contends, and even then only generally, is\nthat the alleged uncertainty around the Ordinance’s\nconstitutionality burdens the organization’s education and\nadvocacy mission. But nowhere does the organization allege\nthat it owns or rents property or otherwise engages in activity\nregulated or protected by the Ordinance. And none of the\nclaims advanced in the original or amended complaints are\ncast in terms of injury to the organization; rather, and despite\nKeep Chicago Livable’s insistence that it is suing for injuries\nto the organization, each claim is advanced in terms of injury\nto an individual’s constitutional rights (whether under the\nFirst Amendment, Due Process Clause, or otherwise).\n On these pleadings and this limited record, we cannot\nconclude that Keep Chicago Livable has alleged a concrete\nand particularized injury to the organization itself that would\nbe redressed by the declaratory judgment or injunction\nsought in the original or amended complaints. It is not\nenough to contend (at least at the level of abstraction at which\nKeep Chicago Livable proceeds here) that the legal clarity that\nmay come from a judicial ruling on any individual plaintiﬀ’s\nclaims challenging the Ordinance would redress an injury to\nthe organization itself.\n\f10 Nos. 17-1656 & 17-2846\n\n The Supreme Court’s decision in Havens Realty Corp. v.\nColeman aﬀords Keep Chicago Livable no refuge. 455 U.S. 363\n(1982). In Havens, a non-proﬁt organization dedicated to\nensuring open housing brought claims under the Fair\nHousing Act alleging injury on the basis of having expended\nsigniﬁcant resources investigating and reporting racially-\ndiscriminatory housing practices by a realty company in a\nsuburb of Richmond, Virginia. See id. at 369. The organization\nspeciﬁcally contended that the realty company’s practice of\nsteering apartments on the basis of race hindered its\ninstitutional eﬀorts to assist prospective tenants in realizing\nequal access to housing. See id. at 379. The Court concluded\nthat these allegations were suﬃcient to confer standing on the\norganization, reasoning that “[s]uch concrete and\ndemonstrable injury to the organization’s activities—with the\nconsequent drain on the organization’s resources—\nconstitutes far more than simply a setback to the\norganization’s abstract social interests.” Id.\n The organizational injury alleged by Keep Chicago\nLivable is much less direct than the one before the Supreme\nCourt in Havens. The original and amended complaints sound\ntheir contention of injury in no more than Keep Chicago\nLivable ﬁnding it diﬃcult to advocate and educate on home-\nsharing in Chicago before a court rules on the individual\nplaintiﬀs’ challenges to the constitutionality of the Ordinance.\nNary a word in either complaint tethers any particular\nrequirement of the Ordinance to a speciﬁc harm to the\norganization. And the only time Keep Chicago Livable\nmentioned a drain on its resources was in its supplemental\nbrief on appeal, but even then at a high level of generality and\nwithout a clear nexus to any legally-protected right or interest\nof the organization. On the record before us, Keep Chicago\n\fNos. 17-1656 & 17-2846 11\n\nLivable has shown little more than a “mere interest in a\nproblem.” Sierra Club v. Morton, 405 U.S. 727, 739 (1972).\n A diﬀerent analysis would apply if Keep Chicago Livable\nhad brought suit on behalf of its members. The test for associ-\national standing comes from the Supreme Court’s decision in\nHunt v. Washington State Apple Advertising Commission, 432\nU.S. 333 (1977). To sue in a representative capacity, Hunt re-\nquires Keep Chicago Livable to show that “(a) its members\nwould otherwise have standing to sue in their own right; (b)\nthe interests it seeks to protect are germane to the organiza-\ntion’s purpose; and (c) neither the claim asserted nor the relief\nrequested requires the participation of individual members in\ntheir lawsuit.” Id. at 343.\n Even if we assume Keep Chicago Livable brought suit on\nbehalf of its members—an assumption at odds with the\nallegations within the four corners of the original and\namended complaints—the organization cannot clear Hunt’s\nﬁrst hurdle. The organization is unable to identify an\nindividual plaintiﬀ with standing to bring any claim. See\nHope, Inc. v. DuPage Cnty., Ill., 738 F.2d 797, 814 (7th Cir. 1984).\nIndeed, at an even more basic level, the record leaves unclear\nwhether any of the six named plaintiﬀs remain members of\nKeep Chicago Livable. So the organization’s plea for\nassociational standing runs into the same barrier the\nindividual named plaintiﬀs cannot overcome on the present\npleadings and record: there is not enough before us to\nconclude that any individual plaintiﬀ presently has the\nrequisite injury to establish standing.\n Here, too, Keep Chicago Livable may be able to close the\ngap on remand. The organization, in a new round of pleading\nor other submissions, may be able to identify an individual\n\f12 Nos. 17-1656 & 17-2846\n\nplaintiﬀ with standing. And perhaps that will be enough to\nsatisfy Hunt when combined with Keep Chicago Livable’s\nexisting allegations (in the original and amended complaints)\nabout the organization’s mission as well as the sworn\nstatement submitted as part of the supplemental brief in this\ncourt by the organization’s current president. All of this is\nappropriately reserved to the district court’s assessment in the\nﬁrst instance.\n C\n The proper course in these circumstances is to vacate the\ndistrict court’s decisions and remand for a determination of\nstanding. See, e.g., Tarpley v. Jeﬀers, 96 F.3d 921, 924 (7th Cir.\n1996). The district court has ample discretion to structure the\nproceedings in accordance with this opinion, including by\npermitting substitutions of new parties and a second\namended complaint. Our sole observation is that the district\ncourt, if it determines that a plaintiﬀ has standing, should\naﬀord the plaintiﬀ one (and only one) opportunity to move\nfor a preliminary injunction, with the court from there\nproceeding to ﬁnal judgment as appropriate. We deny Keep\nChicago Livable’s request to reassign the case on remand.\n For these reasons, we VACATE the district court’s deci-\nsions and REMAND for further proceedings.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4358455/", "author_raw": "SCUDDER, Circuit Judge"}]}	FLAUM	EASTERBROOK	SCUDDER	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4581202/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: KEEP CHICAGO LIVABLE, an Illinois Not-For-Profit Corporation, Et Al., Plaintiffs-Appellants, v. CITY OF CHICAGO, Defendant-Appellee.\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-14\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNos. 17-1656 & 17-2846\nKEEP CHICAGO LIVABLE, an Illinois not-for-profit corporation,\net al.,\n Plaintiffs-Appellants,\n\n v.\n\nCITY OF CHICAGO,\n Defendant-Appellee.\n ____________________\n\n Appeals from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 1:16-cv-10371 — Sara L. Ellis, Judge.\n ____________________\n\n ARGUED OCTOBER 22, 2018 — DECIDED JANUARY 14, 2019\n ____________________\n\n Before FLAUM, EASTERBROOK, and SCUDDER, Circuit Judges.\n SCUDDER, Circuit Judge. An organization known as Keep\nChicago Livable and six individuals challenge the constitu-\ntionality of Chicago’s Shared Housing Ordinance. The City\npassed the Ordinance in 2016 to regulate home-sharing activ-\nities, including services oﬀered by companies like Airbnb. The\ndistrict court denied a request for a preliminary injunction on\ncertain claims and later dismissed without prejudice the\n\f2 Nos. 17-1656 & 17-2846\n\nremaining claims from an amended complaint. These two ap-\npeals then followed. We now vacate the district court’s deci-\nsions, as we cannot say with any conﬁdence that any named\nplaintiﬀ—Keep Chicago Livable or any of the six individu-\nals—has pleaded or otherwise established suﬃcient injury to\nconfer the subject matter jurisdiction necessary to proceed to\nthe merits of any claim.\n We have before us an organization and individuals with\nstrongly-held views about the constitutionality of the City’s\nOrdinance, but Article III of the Constitution requires more:\nour authority is limited to deciding cases or controversies be-\ntween adverse litigants, and without a clear indication that at\nleast one named plaintiﬀ has an actual or imminent injury, we\nhave no authority to go further. So we remand to the district\ncourt to make a determination of standing and to proceed if\nand as appropriate from there.\n I\n A\n Home-sharing websites like Airbnb oﬀer homeowners op-\nportunities to rent their homes on a short-term basis. These\nonline platforms operate as intermediaries by oﬀering owners\na forum to advertise their properties, helping prospective\nrenters ﬁnd rooms and houses for temporary stays, and facil-\nitating rental transactions. In June 2016 the City of Chicago\nenacted its Shared Housing Ordinance to regulate these short-\nterm housing arrangements. The Ordinance imposes a range\nof requirements and restrictions, but all that is necessary here\nis a brief and general overview.\n The Ordinance requires interested hosts to register with\nthe City and acquire a business license before listing their\n\fNos. 17-1656 & 17-2846 3\n\nunits for rent online. The licensing standards bring with them\ngeographic eligibility requirements, restrictions on how many\nunits within a larger building can be rented, and a list of\nbuildings where such rentals are prohibited. Approved hosts\nare then subject to health, safety, and reporting requirements,\nincluding, for example, supplying clean linens and sanitized\ncooking utensils, disposing of waste and leftover food from\nhost properties, and reporting illegal activity known to have\noccurred within a rented unit. Failure to comply subjects reg-\nistered hosts to ﬁnes and other penalties, including revocation\nof their rental license.\n B\n Keep Chicago Livable, a non-proﬁt organization that\nfocuses on educating home-sharing hosts, and individual\nplaintiﬀs challenged the constitutionality of the Ordinance in\nthe district court. In their original complaint, Keep Chicago\nLivable and its president Benjamin Wolf alleged that the\nOrdinance violated the First Amendment by impermissibly\nrestraining non-commercial speech as well as by compelling\nspeech through content-based disclosure requirements. The\ncomplaint also characterized the Ordinance as “so prolix as to\nbe incomprehensible” and thus void for vagueness under the\nDue Process Clause.\n In February 2017 the City modiﬁed portions of the Ordi-\nnance, prompting Keep Chicago Livable and Wolf to ﬁle an\namended complaint. The new complaint added ﬁve new in-\ndividual plaintiﬀs and new claims alleging that the amended\nOrdinance oﬀends not only their alleged First Amendment\nright to intimate and expressive association, but also the\nEqual Protection Clause by arbitrarily treating shared-\n\f4 Nos. 17-1656 & 17-2846\n\nhousing arrangements diﬀerently than guest suite and hotel\nrentals.\n C\n Before us are two appeals, which we have consolidated,\nfrom two orders entered by the district court. First, in the or-\nder leading to appeal No. 17-1656, the district court denied\nplaintiﬀs’ motion for a preliminary injunction on their free\nspeech and vagueness claims. The main thrust of the district\ncourt’s reasoning was that the Ordinance regulates conduct—\nin particular, economic activity—not speech. And plaintiﬀs’\nvagueness challenge, the district court determined, was too\nundeveloped to warrant a preliminary injunction. Second, in\nthe order leading to appeal No. 17-2846, the district court dis-\nmissed without prejudice the new claims added by and re-\nmaining in plaintiﬀs’ amended complaint, stating that those\nclaims could be reﬁled and revisited following this court’s de-\ncision on the merits of the claims at issue in the ﬁrst appeal.\n Both parties devote their appellate briefs to debating\nwhether the district court properly denied plaintiﬀs’ request\nfor a preliminary injunction. For their part, plaintiﬀs also spill\nconsiderable ink on the substance of their remaining claims,\nwhich the district court dismissed without prejudice and\nwithout addressing their merits. Neither party devoted atten-\ntion to the threshold issue—federal subject matter jurisdic-\ntion—which leads us to vacate the district court’s decisions.\n II\n Unsure from plaintiﬀs’ complaints and the district court\nrecord whether any named plaintiﬀ had the requisite injury\nor threat of injury to establish the standing necessary for fed-\neral subject matter jurisdiction, we raised the question at oral\n\fNos. 17-1656 & 17-2846 5\n\nargument and followed by ordering supplemental brieﬁng.\nWe invited the parties to supply information on the standing\nof not only each individual named as a plaintiﬀ, but also Keep\nChicago Livable as an organization.\n A\n We begin with the individual plaintiﬀs. While the\namended complaint names six individuals as plaintiﬀs, the\nrequisite standing inquiry—”an essential and unchanging\npart of the case-or-controversy requirement of Article III”—\nproceeds person-by-person. Lujan v. Defenders of Wildlife, 504\nU.S. 555, 560 (1992). Standing requires a threefold demonstra-\ntion of “(1) an injury in-fact; (2) fairly traceable to the defend-\nant’s action; and (3) capable of being redressed by a favorable\ndecision from the court.” Pavrati Corp. v. City of Oak Forest, Ill.,\n630 F.3d 512, 516 (7th Cir. 2010) (citing Lujan, 504 U.S. at 560–\n61). The alleged injury must be not just “concrete and partic-\nularized,” but also “actual and imminent, not conjectural or\nhypothetical.” Lujan, 504 U.S. at 560; see also Spokeo, Inc. v.\nRobins, 136 S. Ct. 1540, 1547–48 (2016).\n The necessity of demonstrating and maintaining standing\ndoes not subside as litigation proceeds. To the contrary,\n“standing must be present at all stages of the litigation, in-\ncluding on appeal.” Pavrati Corp., 630 F.3d at 516. Or, perhaps\nmore precisely as applied here, the asserted injury in-fact (and\nthus the requirements of concreteness, particularity, actuality,\nand imminence) must remain throughout the litigation, lest a\ncase or controversy cease to exist and become moot. See\nFriends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528\nU.S. 167, 189 (2000); see also United States v. Accra Pac, Inc., 173\nF.3d 630, 633 (7th Cir. 1999). The burden of making this show-\ning—of demonstrating the requisite injury to invoke federal\n\f6 Nos. 17-1656 & 17-2846\n\njurisdiction—rests with the plaintiﬀ. See Spokeo, 136 S. Ct. at\n1547.\n Using these standards, we cannot conclude with\nconﬁdence that any named plaintiﬀ presently has standing. We\nemphasize that our inquiry focuses on the here and now—\nstanding at the time of these appeals—because meaningful\ntime has passed since the original complaint was ﬁled (in\nNovember 2016), and the plaintiﬀs’ supplemental brief\nreveals that the passage of time has resulted in changed facts\nand circumstances for each of the six individuals named as\nplaintiﬀs in the amended complaint (ﬁled in February 2017).\nHere is what we are able to discern:\n • Benjamin Wolf served as Keep Chicago\n Livable’s ﬁrst president and, as alleged in the\n original complaint, not only used Airbnb to rent\n his home in Chicago, but also intended to\n continue doing so. According to plaintiﬀs’\n supplemental brief, however, Wolf has since\n sold his property in Chicago and moved to\n Ohio.\n • Susan Maller lives in a Chicago apartment and,\n as alleged in the amended complaint, was pre-\n cluded from listing it on Airbnb because of the\n “harassment of her building’s property man-\n ager.” Plaintiﬀs’ supplemental brief does not\n further explain the harassment and merely\n states—without any additional allegation—that\n Maller has “ceased Airbnb operations due to the\n restrictions of the Shared Housing Ordinance.”\n\fNos. 17-1656 & 17-2846 7\n\n • Danielle McCarron once lived in an apartment\n appearing on the City’s Prohibited Buildings\n List but has since moved. And, as with Maller,\n plaintiﬀs’ supplemental brief summarily says\n that, because of the City’s Ordinance, she is no\n longer attempting to participate in Airbnb.\n • Antoinette Wonsey lives in Chicago and, ac-\n cording to the amended complaint, is an\n “Airbnb host manager” who helps guests in her\n neighborhood ﬁnd accommodations. Without\n any particularity, she alleges that she no longer\n engages in these activities because of the Ordi-\n nance.\n • Monica Wolf lives in Kentucky but frequently\n visits Chicago and in the amended complaint\n alleged that the Ordinance limited her preferred\n rental options. Plaintiﬀs’ supplemental brief\n indicates Wolf has not returned to Chicago,\n “having been denied full access to all hosts who\n would otherwise list on Airbnb.”\n • John Doe is a citizen of Canada who frequently\n used Airbnb to visit Chicago. In the amended\n complaint, he alleged that his ability to\n “associate with Chicagoans is inhibited by the\n Prohibited Buildings List.” Plaintiﬀs’\n supplemental brief says that Doe, much like\n Monica Wolf, has not returned to Chicago since\n the Ordinance went into eﬀect.\n None of this adds up to the clear, requisite showing of an\nongoing, concrete, and particularized injury caused by the\n\f8 Nos. 17-1656 & 17-2846\n\nOrdinance and capable of being redressed by a favorable\nruling in these appeals. No longer owning property in\nChicago, Benjamin Wolf’s claims have become moot; Maller,\nMcCarron, and Wonsey allege with no particularity how the\nOrdinance (and not some other factor) is preventing or\nhampering any of their own home-sharing activities in\nChicago; and the out-of-town renters, Monica Wolf and Doe,\ndo not convey with suﬃcient clarity or particularity whether\nthey still wish to visit Chicago and, if so, how the Ordinance\nis chilling or inhibiting them from doing so.\n Our conclusion is narrow—limited to and conﬁned by the\ninformation before us—and handicapped by neither party fo-\ncusing on standing before these appeals. It may be on remand,\nperhaps following additional brieﬁng or upon the ﬁling of a\nsecond amended complaint, that at least one individual plain-\ntiﬀ is able to establish standing and thereby jumpstart this lit-\nigation, as the plaintiﬀs so plainly wish to do. But Article III’s\ncase or controversy mandate does not allow us to take the\nshortcut of moving to the merits of plaintiﬀs’ claims before\nensuring the presence of a plaintiﬀ with standing. See Steel Co.\nv. Citizens for a Better Env’t, 523 U.S. 83, 94–96 (1998).\n B\n We reach the same conclusion when turning our focus to\nKeep Chicago Livable. The organization is an Illinois non-\nproﬁt corporation with the stated goal of educating Chicago\nhosts about compliance with state and local home-sharing\nlaws. In its original and amended complaints, the\norganization alleged that the Ordinance burdens its ability “to\nperform its function of educating and advising hosts and\nputative hosts as to their proper rights and duties under this\nnew law, while the aforementioned constitutional questions\n\fNos. 17-1656 & 17-2846 9\n\nremain unresolved.” This allegation suggests that Keep\nChicago Livable brought its lawsuit to vindicate an injury to\nthe organization itself. But in its supplemental brief the\norganization states that it is suing not only “on its own\nbehalf,” but also “as a representative association” on behalf of\nits members. These distinctions matter.\n If Keep Chicago Livable is suing to remedy an injury to the\norganization, the allegations in the original and amended\ncomplaints fall short of establishing standing. All Keep\nChicago Livable contends, and even then only generally, is\nthat the alleged uncertainty around the Ordinance’s\nconstitutionality burdens the organization’s education and\nadvocacy mission. But nowhere does the organization allege\nthat it owns or rents property or otherwise engages in activity\nregulated or protected by the Ordinance. And none of the\nclaims advanced in the original or amended complaints are\ncast in terms of injury to the organization; rather, and despite\nKeep Chicago Livable’s insistence that it is suing for injuries\nto the organization, each claim is advanced in terms of injury\nto an individual’s constitutional rights (whether under the\nFirst Amendment, Due Process Clause, or otherwise).\n On these pleadings and this limited record, we cannot\nconclude that Keep Chicago Livable has alleged a concrete\nand particularized injury to the organization itself that would\nbe redressed by the declaratory judgment or injunction\nsought in the original or amended complaints. It is not\nenough to contend (at least at the level of abstraction at which\nKeep Chicago Livable proceeds here) that the legal clarity that\nmay come from a judicial ruling on any individual plaintiﬀ’s\nclaims challenging the Ordinance would redress an injury to\nthe organization itself.\n\f10 Nos. 17-1656 & 17-2846\n\n The Supreme Court’s decision in Havens Realty Corp. v.\nColeman aﬀords Keep Chicago Livable no refuge. 455 U.S. 363\n(1982). In Havens, a non-proﬁt organization dedicated to\nensuring open housing brought claims under the Fair\nHousing Act alleging injury on the basis of having expended\nsigniﬁcant resources investigating and reporting racially-\ndiscriminatory housing practices by a realty company in a\nsuburb of Richmond, Virginia. See id. at 369. The organization\nspeciﬁcally contended that the realty company’s practice of\nsteering apartments on the basis of race hindered its\ninstitutional eﬀorts to assist prospective tenants in realizing\nequal access to housing. See id. at 379. The Court concluded\nthat these allegations were suﬃcient to confer standing on the\norganization, reasoning that “[s]uch concrete and\ndemonstrable injury to the organization’s activities—with the\nconsequent drain on the organization’s resources—\nconstitutes far more than simply a setback to the\norganization’s abstract social interests.” Id.\n The organizational injury alleged by Keep Chicago\nLivable is much less direct than the one before the Supreme\nCourt in Havens. The original and amended complaints sound\ntheir contention of injury in no more than Keep Chicago\nLivable ﬁnding it diﬃcult to advocate and educate on home-\nsharing in Chicago before a court rules on the individual\nplaintiﬀs’ challenges to the constitutionality of the Ordinance.\nNary a word in either complaint tethers any particular\nrequirement of the Ordinance to a speciﬁc harm to the\norganization. And the only time Keep Chicago Livable\nmentioned a drain on its resources was in its supplemental\nbrief on appeal, but even then at a high level of generality and\nwithout a clear nexus to any legally-protected right or interest\nof the organization. On the record before us, Keep Chicago\n\fNos. 17-1656 & 17-2846 11\n\nLivable has shown little more than a “mere interest in a\nproblem.” Sierra Club v. Morton, 405 U.S. 727, 739 (1972).\n A diﬀerent analysis would apply if Keep Chicago Livable\nhad brought suit on behalf of its members. The test for associ-\national standing comes from the Supreme Court’s decision in\nHunt v. Washington State Apple Advertising Commission, 432\nU.S. 333 (1977). To sue in a representative capacity, Hunt re-\nquires Keep Chicago Livable to show that “(a) its members\nwould otherwise have standing to sue in their own right; (b)\nthe interests it seeks to protect are germane to the organiza-\ntion’s purpose; and (c) neither the claim asserted nor the relief\nrequested requires the participation of individual members in\ntheir lawsuit.” Id. at 343.\n Even if we assume Keep Chicago Livable brought suit on\nbehalf of its members—an assumption at odds with the\nallegations within the four corners of the original and\namended complaints—the organization cannot clear Hunt’s\nﬁrst hurdle. The organization is unable to identify an\nindividual plaintiﬀ with standing to bring any claim. See\nHope, Inc. v. DuPage Cnty., Ill., 738 F.2d 797, 814 (7th Cir. 1984).\nIndeed, at an even more basic level, the record leaves unclear\nwhether any of the six named plaintiﬀs remain members of\nKeep Chicago Livable. So the organization’s plea for\nassociational standing runs into the same barrier the\nindividual named plaintiﬀs cannot overcome on the present\npleadings and record: there is not enough before us to\nconclude that any individual plaintiﬀ presently has the\nrequisite injury to establish standing.\n Here, too, Keep Chicago Livable may be able to close the\ngap on remand. The organization, in a new round of pleading\nor other submissions, may be able to identify an individual\n\f12 Nos. 17-1656 & 17-2846\n\nplaintiﬀ with standing. And perhaps that will be enough to\nsatisfy Hunt when combined with Keep Chicago Livable’s\nexisting allegations (in the original and amended complaints)\nabout the organization’s mission as well as the sworn\nstatement submitted as part of the supplemental brief in this\ncourt by the organization’s current president. All of this is\nappropriately reserved to the district court’s assessment in the\nﬁrst instance.\n C\n The proper course in these circumstances is to vacate the\ndistrict court’s decisions and remand for a determination of\nstanding. See, e.g., Tarpley v. Jeﬀers, 96 F.3d 921, 924 (7th Cir.\n1996). The district court has ample discretion to structure the\nproceedings in accordance with this opinion, including by\npermitting substitutions of new parties and a second\namended complaint. Our sole observation is that the district\ncourt, if it determines that a plaintiﬀ has standing, should\naﬀord the plaintiﬀ one (and only one) opportunity to move\nfor a preliminary injunction, with the court from there\nproceeding to ﬁnal judgment as appropriate. We deny Keep\nChicago Livable’s request to reassign the case on remand.\n For these reasons, we VACATE the district court’s deci-\nsions and REMAND for further proceedings.\n[END_CASE]", "role": "user" } ]
4,581,362		Keep Chicago Livable v. City of Chicago	2019-01-14	17-2846	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before FLAUM, EASTERBROOK, and SCUDDER, Circuit Judges.", "parties": "", "opinions": [{"author": "SCUDDER, Circuit Judge", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNos. 17-1656 & 17-2846\nKEEP CHICAGO LIVABLE, an Illinois not-for-profit corporation,\net al.,\n Plaintiffs-Appellants,\n\n v.\n\nCITY OF CHICAGO,\n Defendant-Appellee.\n ____________________\n\n Appeals from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 1:16-cv-10371 — Sara L. Ellis, Judge.\n ____________________\n\n ARGUED OCTOBER 22, 2018 — DECIDED JANUARY 14, 2019\n ____________________\n\n Before FLAUM, EASTERBROOK, and SCUDDER, Circuit Judges.\n SCUDDER, Circuit Judge. An organization known as Keep\nChicago Livable and six individuals challenge the constitu-\ntionality of Chicago’s Shared Housing Ordinance. The City\npassed the Ordinance in 2016 to regulate home-sharing activ-\nities, including services oﬀered by companies like Airbnb. The\ndistrict court denied a request for a preliminary injunction on\ncertain claims and later dismissed without prejudice the\n\f2 Nos. 17-1656 & 17-2846\n\nremaining claims from an amended complaint. These two ap-\npeals then followed. We now vacate the district court’s deci-\nsions, as we cannot say with any conﬁdence that any named\nplaintiﬀ—Keep Chicago Livable or any of the six individu-\nals—has pleaded or otherwise established suﬃcient injury to\nconfer the subject matter jurisdiction necessary to proceed to\nthe merits of any claim.\n We have before us an organization and individuals with\nstrongly-held views about the constitutionality of the City’s\nOrdinance, but Article III of the Constitution requires more:\nour authority is limited to deciding cases or controversies be-\ntween adverse litigants, and without a clear indication that at\nleast one named plaintiﬀ has an actual or imminent injury, we\nhave no authority to go further. So we remand to the district\ncourt to make a determination of standing and to proceed if\nand as appropriate from there.\n I\n A\n Home-sharing websites like Airbnb oﬀer homeowners op-\nportunities to rent their homes on a short-term basis. These\nonline platforms operate as intermediaries by oﬀering owners\na forum to advertise their properties, helping prospective\nrenters ﬁnd rooms and houses for temporary stays, and facil-\nitating rental transactions. In June 2016 the City of Chicago\nenacted its Shared Housing Ordinance to regulate these short-\nterm housing arrangements. The Ordinance imposes a range\nof requirements and restrictions, but all that is necessary here\nis a brief and general overview.\n The Ordinance requires interested hosts to register with\nthe City and acquire a business license before listing their\n\fNos. 17-1656 & 17-2846 3\n\nunits for rent online. The licensing standards bring with them\ngeographic eligibility requirements, restrictions on how many\nunits within a larger building can be rented, and a list of\nbuildings where such rentals are prohibited. Approved hosts\nare then subject to health, safety, and reporting requirements,\nincluding, for example, supplying clean linens and sanitized\ncooking utensils, disposing of waste and leftover food from\nhost properties, and reporting illegal activity known to have\noccurred within a rented unit. Failure to comply subjects reg-\nistered hosts to ﬁnes and other penalties, including revocation\nof their rental license.\n B\n Keep Chicago Livable, a non-proﬁt organization that\nfocuses on educating home-sharing hosts, and individual\nplaintiﬀs challenged the constitutionality of the Ordinance in\nthe district court. In their original complaint, Keep Chicago\nLivable and its president Benjamin Wolf alleged that the\nOrdinance violated the First Amendment by impermissibly\nrestraining non-commercial speech as well as by compelling\nspeech through content-based disclosure requirements. The\ncomplaint also characterized the Ordinance as “so prolix as to\nbe incomprehensible” and thus void for vagueness under the\nDue Process Clause.\n In February 2017 the City modiﬁed portions of the Ordi-\nnance, prompting Keep Chicago Livable and Wolf to ﬁle an\namended complaint. The new complaint added ﬁve new in-\ndividual plaintiﬀs and new claims alleging that the amended\nOrdinance oﬀends not only their alleged First Amendment\nright to intimate and expressive association, but also the\nEqual Protection Clause by arbitrarily treating shared-\n\f4 Nos. 17-1656 & 17-2846\n\nhousing arrangements diﬀerently than guest suite and hotel\nrentals.\n C\n Before us are two appeals, which we have consolidated,\nfrom two orders entered by the district court. First, in the or-\nder leading to appeal No. 17-1656, the district court denied\nplaintiﬀs’ motion for a preliminary injunction on their free\nspeech and vagueness claims. The main thrust of the district\ncourt’s reasoning was that the Ordinance regulates conduct—\nin particular, economic activity—not speech. And plaintiﬀs’\nvagueness challenge, the district court determined, was too\nundeveloped to warrant a preliminary injunction. Second, in\nthe order leading to appeal No. 17-2846, the district court dis-\nmissed without prejudice the new claims added by and re-\nmaining in plaintiﬀs’ amended complaint, stating that those\nclaims could be reﬁled and revisited following this court’s de-\ncision on the merits of the claims at issue in the ﬁrst appeal.\n Both parties devote their appellate briefs to debating\nwhether the district court properly denied plaintiﬀs’ request\nfor a preliminary injunction. For their part, plaintiﬀs also spill\nconsiderable ink on the substance of their remaining claims,\nwhich the district court dismissed without prejudice and\nwithout addressing their merits. Neither party devoted atten-\ntion to the threshold issue—federal subject matter jurisdic-\ntion—which leads us to vacate the district court’s decisions.\n II\n Unsure from plaintiﬀs’ complaints and the district court\nrecord whether any named plaintiﬀ had the requisite injury\nor threat of injury to establish the standing necessary for fed-\neral subject matter jurisdiction, we raised the question at oral\n\fNos. 17-1656 & 17-2846 5\n\nargument and followed by ordering supplemental brieﬁng.\nWe invited the parties to supply information on the standing\nof not only each individual named as a plaintiﬀ, but also Keep\nChicago Livable as an organization.\n A\n We begin with the individual plaintiﬀs. While the\namended complaint names six individuals as plaintiﬀs, the\nrequisite standing inquiry—”an essential and unchanging\npart of the case-or-controversy requirement of Article III”—\nproceeds person-by-person. Lujan v. Defenders of Wildlife, 504\nU.S. 555, 560 (1992). Standing requires a threefold demonstra-\ntion of “(1) an injury in-fact; (2) fairly traceable to the defend-\nant’s action; and (3) capable of being redressed by a favorable\ndecision from the court.” Pavrati Corp. v. City of Oak Forest, Ill.,\n630 F.3d 512, 516 (7th Cir. 2010) (citing Lujan, 504 U.S. at 560–\n61). The alleged injury must be not just “concrete and partic-\nularized,” but also “actual and imminent, not conjectural or\nhypothetical.” Lujan, 504 U.S. at 560; see also Spokeo, Inc. v.\nRobins, 136 S. Ct. 1540, 1547–48 (2016).\n The necessity of demonstrating and maintaining standing\ndoes not subside as litigation proceeds. To the contrary,\n“standing must be present at all stages of the litigation, in-\ncluding on appeal.” Pavrati Corp., 630 F.3d at 516. Or, perhaps\nmore precisely as applied here, the asserted injury in-fact (and\nthus the requirements of concreteness, particularity, actuality,\nand imminence) must remain throughout the litigation, lest a\ncase or controversy cease to exist and become moot. See\nFriends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528\nU.S. 167, 189 (2000); see also United States v. Accra Pac, Inc., 173\nF.3d 630, 633 (7th Cir. 1999). The burden of making this show-\ning—of demonstrating the requisite injury to invoke federal\n\f6 Nos. 17-1656 & 17-2846\n\njurisdiction—rests with the plaintiﬀ. See Spokeo, 136 S. Ct. at\n1547.\n Using these standards, we cannot conclude with\nconﬁdence that any named plaintiﬀ presently has standing. We\nemphasize that our inquiry focuses on the here and now—\nstanding at the time of these appeals—because meaningful\ntime has passed since the original complaint was ﬁled (in\nNovember 2016), and the plaintiﬀs’ supplemental brief\nreveals that the passage of time has resulted in changed facts\nand circumstances for each of the six individuals named as\nplaintiﬀs in the amended complaint (ﬁled in February 2017).\nHere is what we are able to discern:\n • Benjamin Wolf served as Keep Chicago\n Livable’s ﬁrst president and, as alleged in the\n original complaint, not only used Airbnb to rent\n his home in Chicago, but also intended to\n continue doing so. According to plaintiﬀs’\n supplemental brief, however, Wolf has since\n sold his property in Chicago and moved to\n Ohio.\n • Susan Maller lives in a Chicago apartment and,\n as alleged in the amended complaint, was pre-\n cluded from listing it on Airbnb because of the\n “harassment of her building’s property man-\n ager.” Plaintiﬀs’ supplemental brief does not\n further explain the harassment and merely\n states—without any additional allegation—that\n Maller has “ceased Airbnb operations due to the\n restrictions of the Shared Housing Ordinance.”\n\fNos. 17-1656 & 17-2846 7\n\n • Danielle McCarron once lived in an apartment\n appearing on the City’s Prohibited Buildings\n List but has since moved. And, as with Maller,\n plaintiﬀs’ supplemental brief summarily says\n that, because of the City’s Ordinance, she is no\n longer attempting to participate in Airbnb.\n • Antoinette Wonsey lives in Chicago and, ac-\n cording to the amended complaint, is an\n “Airbnb host manager” who helps guests in her\n neighborhood ﬁnd accommodations. Without\n any particularity, she alleges that she no longer\n engages in these activities because of the Ordi-\n nance.\n • Monica Wolf lives in Kentucky but frequently\n visits Chicago and in the amended complaint\n alleged that the Ordinance limited her preferred\n rental options. Plaintiﬀs’ supplemental brief\n indicates Wolf has not returned to Chicago,\n “having been denied full access to all hosts who\n would otherwise list on Airbnb.”\n • John Doe is a citizen of Canada who frequently\n used Airbnb to visit Chicago. In the amended\n complaint, he alleged that his ability to\n “associate with Chicagoans is inhibited by the\n Prohibited Buildings List.” Plaintiﬀs’\n supplemental brief says that Doe, much like\n Monica Wolf, has not returned to Chicago since\n the Ordinance went into eﬀect.\n None of this adds up to the clear, requisite showing of an\nongoing, concrete, and particularized injury caused by the\n\f8 Nos. 17-1656 & 17-2846\n\nOrdinance and capable of being redressed by a favorable\nruling in these appeals. No longer owning property in\nChicago, Benjamin Wolf’s claims have become moot; Maller,\nMcCarron, and Wonsey allege with no particularity how the\nOrdinance (and not some other factor) is preventing or\nhampering any of their own home-sharing activities in\nChicago; and the out-of-town renters, Monica Wolf and Doe,\ndo not convey with suﬃcient clarity or particularity whether\nthey still wish to visit Chicago and, if so, how the Ordinance\nis chilling or inhibiting them from doing so.\n Our conclusion is narrow—limited to and conﬁned by the\ninformation before us—and handicapped by neither party fo-\ncusing on standing before these appeals. It may be on remand,\nperhaps following additional brieﬁng or upon the ﬁling of a\nsecond amended complaint, that at least one individual plain-\ntiﬀ is able to establish standing and thereby jumpstart this lit-\nigation, as the plaintiﬀs so plainly wish to do. But Article III’s\ncase or controversy mandate does not allow us to take the\nshortcut of moving to the merits of plaintiﬀs’ claims before\nensuring the presence of a plaintiﬀ with standing. See Steel Co.\nv. Citizens for a Better Env’t, 523 U.S. 83, 94–96 (1998).\n B\n We reach the same conclusion when turning our focus to\nKeep Chicago Livable. The organization is an Illinois non-\nproﬁt corporation with the stated goal of educating Chicago\nhosts about compliance with state and local home-sharing\nlaws. In its original and amended complaints, the\norganization alleged that the Ordinance burdens its ability “to\nperform its function of educating and advising hosts and\nputative hosts as to their proper rights and duties under this\nnew law, while the aforementioned constitutional questions\n\fNos. 17-1656 & 17-2846 9\n\nremain unresolved.” This allegation suggests that Keep\nChicago Livable brought its lawsuit to vindicate an injury to\nthe organization itself. But in its supplemental brief the\norganization states that it is suing not only “on its own\nbehalf,” but also “as a representative association” on behalf of\nits members. These distinctions matter.\n If Keep Chicago Livable is suing to remedy an injury to the\norganization, the allegations in the original and amended\ncomplaints fall short of establishing standing. All Keep\nChicago Livable contends, and even then only generally, is\nthat the alleged uncertainty around the Ordinance’s\nconstitutionality burdens the organization’s education and\nadvocacy mission. But nowhere does the organization allege\nthat it owns or rents property or otherwise engages in activity\nregulated or protected by the Ordinance. And none of the\nclaims advanced in the original or amended complaints are\ncast in terms of injury to the organization; rather, and despite\nKeep Chicago Livable’s insistence that it is suing for injuries\nto the organization, each claim is advanced in terms of injury\nto an individual’s constitutional rights (whether under the\nFirst Amendment, Due Process Clause, or otherwise).\n On these pleadings and this limited record, we cannot\nconclude that Keep Chicago Livable has alleged a concrete\nand particularized injury to the organization itself that would\nbe redressed by the declaratory judgment or injunction\nsought in the original or amended complaints. It is not\nenough to contend (at least at the level of abstraction at which\nKeep Chicago Livable proceeds here) that the legal clarity that\nmay come from a judicial ruling on any individual plaintiﬀ’s\nclaims challenging the Ordinance would redress an injury to\nthe organization itself.\n\f10 Nos. 17-1656 & 17-2846\n\n The Supreme Court’s decision in Havens Realty Corp. v.\nColeman aﬀords Keep Chicago Livable no refuge. 455 U.S. 363\n(1982). In Havens, a non-proﬁt organization dedicated to\nensuring open housing brought claims under the Fair\nHousing Act alleging injury on the basis of having expended\nsigniﬁcant resources investigating and reporting racially-\ndiscriminatory housing practices by a realty company in a\nsuburb of Richmond, Virginia. See id. at 369. The organization\nspeciﬁcally contended that the realty company’s practice of\nsteering apartments on the basis of race hindered its\ninstitutional eﬀorts to assist prospective tenants in realizing\nequal access to housing. See id. at 379. The Court concluded\nthat these allegations were suﬃcient to confer standing on the\norganization, reasoning that “[s]uch concrete and\ndemonstrable injury to the organization’s activities—with the\nconsequent drain on the organization’s resources—\nconstitutes far more than simply a setback to the\norganization’s abstract social interests.” Id.\n The organizational injury alleged by Keep Chicago\nLivable is much less direct than the one before the Supreme\nCourt in Havens. The original and amended complaints sound\ntheir contention of injury in no more than Keep Chicago\nLivable ﬁnding it diﬃcult to advocate and educate on home-\nsharing in Chicago before a court rules on the individual\nplaintiﬀs’ challenges to the constitutionality of the Ordinance.\nNary a word in either complaint tethers any particular\nrequirement of the Ordinance to a speciﬁc harm to the\norganization. And the only time Keep Chicago Livable\nmentioned a drain on its resources was in its supplemental\nbrief on appeal, but even then at a high level of generality and\nwithout a clear nexus to any legally-protected right or interest\nof the organization. On the record before us, Keep Chicago\n\fNos. 17-1656 & 17-2846 11\n\nLivable has shown little more than a “mere interest in a\nproblem.” Sierra Club v. Morton, 405 U.S. 727, 739 (1972).\n A diﬀerent analysis would apply if Keep Chicago Livable\nhad brought suit on behalf of its members. The test for associ-\national standing comes from the Supreme Court’s decision in\nHunt v. Washington State Apple Advertising Commission, 432\nU.S. 333 (1977). To sue in a representative capacity, Hunt re-\nquires Keep Chicago Livable to show that “(a) its members\nwould otherwise have standing to sue in their own right; (b)\nthe interests it seeks to protect are germane to the organiza-\ntion’s purpose; and (c) neither the claim asserted nor the relief\nrequested requires the participation of individual members in\ntheir lawsuit.” Id. at 343.\n Even if we assume Keep Chicago Livable brought suit on\nbehalf of its members—an assumption at odds with the\nallegations within the four corners of the original and\namended complaints—the organization cannot clear Hunt’s\nﬁrst hurdle. The organization is unable to identify an\nindividual plaintiﬀ with standing to bring any claim. See\nHope, Inc. v. DuPage Cnty., Ill., 738 F.2d 797, 814 (7th Cir. 1984).\nIndeed, at an even more basic level, the record leaves unclear\nwhether any of the six named plaintiﬀs remain members of\nKeep Chicago Livable. So the organization’s plea for\nassociational standing runs into the same barrier the\nindividual named plaintiﬀs cannot overcome on the present\npleadings and record: there is not enough before us to\nconclude that any individual plaintiﬀ presently has the\nrequisite injury to establish standing.\n Here, too, Keep Chicago Livable may be able to close the\ngap on remand. The organization, in a new round of pleading\nor other submissions, may be able to identify an individual\n\f12 Nos. 17-1656 & 17-2846\n\nplaintiﬀ with standing. And perhaps that will be enough to\nsatisfy Hunt when combined with Keep Chicago Livable’s\nexisting allegations (in the original and amended complaints)\nabout the organization’s mission as well as the sworn\nstatement submitted as part of the supplemental brief in this\ncourt by the organization’s current president. All of this is\nappropriately reserved to the district court’s assessment in the\nﬁrst instance.\n C\n The proper course in these circumstances is to vacate the\ndistrict court’s decisions and remand for a determination of\nstanding. See, e.g., Tarpley v. Jeﬀers, 96 F.3d 921, 924 (7th Cir.\n1996). The district court has ample discretion to structure the\nproceedings in accordance with this opinion, including by\npermitting substitutions of new parties and a second\namended complaint. Our sole observation is that the district\ncourt, if it determines that a plaintiﬀ has standing, should\naﬀord the plaintiﬀ one (and only one) opportunity to move\nfor a preliminary injunction, with the court from there\nproceeding to ﬁnal judgment as appropriate. We deny Keep\nChicago Livable’s request to reassign the case on remand.\n For these reasons, we VACATE the district court’s deci-\nsions and REMAND for further proceedings.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4358615/", "author_raw": "SCUDDER, Circuit Judge"}]}	FLAUM	EASTERBROOK	SCUDDER	1		{"FLAUM": ", Circuit", "EASTERBROOK": ", Circuit", "SCUDDER": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4581362/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Keep Chicago Livable v. City of Chicago\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-14\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNos. 17-1656 & 17-2846\nKEEP CHICAGO LIVABLE, an Illinois not-for-profit corporation,\net al.,\n Plaintiffs-Appellants,\n\n v.\n\nCITY OF CHICAGO,\n Defendant-Appellee.\n ____________________\n\n Appeals from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 1:16-cv-10371 — Sara L. Ellis, Judge.\n ____________________\n\n ARGUED OCTOBER 22, 2018 — DECIDED JANUARY 14, 2019\n ____________________\n\n Before FLAUM, EASTERBROOK, and SCUDDER, Circuit Judges.\n SCUDDER, Circuit Judge. An organization known as Keep\nChicago Livable and six individuals challenge the constitu-\ntionality of Chicago’s Shared Housing Ordinance. The City\npassed the Ordinance in 2016 to regulate home-sharing activ-\nities, including services oﬀered by companies like Airbnb. The\ndistrict court denied a request for a preliminary injunction on\ncertain claims and later dismissed without prejudice the\n\f2 Nos. 17-1656 & 17-2846\n\nremaining claims from an amended complaint. These two ap-\npeals then followed. We now vacate the district court’s deci-\nsions, as we cannot say with any conﬁdence that any named\nplaintiﬀ—Keep Chicago Livable or any of the six individu-\nals—has pleaded or otherwise established suﬃcient injury to\nconfer the subject matter jurisdiction necessary to proceed to\nthe merits of any claim.\n We have before us an organization and individuals with\nstrongly-held views about the constitutionality of the City’s\nOrdinance, but Article III of the Constitution requires more:\nour authority is limited to deciding cases or controversies be-\ntween adverse litigants, and without a clear indication that at\nleast one named plaintiﬀ has an actual or imminent injury, we\nhave no authority to go further. So we remand to the district\ncourt to make a determination of standing and to proceed if\nand as appropriate from there.\n I\n A\n Home-sharing websites like Airbnb oﬀer homeowners op-\nportunities to rent their homes on a short-term basis. These\nonline platforms operate as intermediaries by oﬀering owners\na forum to advertise their properties, helping prospective\nrenters ﬁnd rooms and houses for temporary stays, and facil-\nitating rental transactions. In June 2016 the City of Chicago\nenacted its Shared Housing Ordinance to regulate these short-\nterm housing arrangements. The Ordinance imposes a range\nof requirements and restrictions, but all that is necessary here\nis a brief and general overview.\n The Ordinance requires interested hosts to register with\nthe City and acquire a business license before listing their\n\fNos. 17-1656 & 17-2846 3\n\nunits for rent online. The licensing standards bring with them\ngeographic eligibility requirements, restrictions on how many\nunits within a larger building can be rented, and a list of\nbuildings where such rentals are prohibited. Approved hosts\nare then subject to health, safety, and reporting requirements,\nincluding, for example, supplying clean linens and sanitized\ncooking utensils, disposing of waste and leftover food from\nhost properties, and reporting illegal activity known to have\noccurred within a rented unit. Failure to comply subjects reg-\nistered hosts to ﬁnes and other penalties, including revocation\nof their rental license.\n B\n Keep Chicago Livable, a non-proﬁt organization that\nfocuses on educating home-sharing hosts, and individual\nplaintiﬀs challenged the constitutionality of the Ordinance in\nthe district court. In their original complaint, Keep Chicago\nLivable and its president Benjamin Wolf alleged that the\nOrdinance violated the First Amendment by impermissibly\nrestraining non-commercial speech as well as by compelling\nspeech through content-based disclosure requirements. The\ncomplaint also characterized the Ordinance as “so prolix as to\nbe incomprehensible” and thus void for vagueness under the\nDue Process Clause.\n In February 2017 the City modiﬁed portions of the Ordi-\nnance, prompting Keep Chicago Livable and Wolf to ﬁle an\namended complaint. The new complaint added ﬁve new in-\ndividual plaintiﬀs and new claims alleging that the amended\nOrdinance oﬀends not only their alleged First Amendment\nright to intimate and expressive association, but also the\nEqual Protection Clause by arbitrarily treating shared-\n\f4 Nos. 17-1656 & 17-2846\n\nhousing arrangements diﬀerently than guest suite and hotel\nrentals.\n C\n Before us are two appeals, which we have consolidated,\nfrom two orders entered by the district court. First, in the or-\nder leading to appeal No. 17-1656, the district court denied\nplaintiﬀs’ motion for a preliminary injunction on their free\nspeech and vagueness claims. The main thrust of the district\ncourt’s reasoning was that the Ordinance regulates conduct—\nin particular, economic activity—not speech. And plaintiﬀs’\nvagueness challenge, the district court determined, was too\nundeveloped to warrant a preliminary injunction. Second, in\nthe order leading to appeal No. 17-2846, the district court dis-\nmissed without prejudice the new claims added by and re-\nmaining in plaintiﬀs’ amended complaint, stating that those\nclaims could be reﬁled and revisited following this court’s de-\ncision on the merits of the claims at issue in the ﬁrst appeal.\n Both parties devote their appellate briefs to debating\nwhether the district court properly denied plaintiﬀs’ request\nfor a preliminary injunction. For their part, plaintiﬀs also spill\nconsiderable ink on the substance of their remaining claims,\nwhich the district court dismissed without prejudice and\nwithout addressing their merits. Neither party devoted atten-\ntion to the threshold issue—federal subject matter jurisdic-\ntion—which leads us to vacate the district court’s decisions.\n II\n Unsure from plaintiﬀs’ complaints and the district court\nrecord whether any named plaintiﬀ had the requisite injury\nor threat of injury to establish the standing necessary for fed-\neral subject matter jurisdiction, we raised the question at oral\n\fNos. 17-1656 & 17-2846 5\n\nargument and followed by ordering supplemental brieﬁng.\nWe invited the parties to supply information on the standing\nof not only each individual named as a plaintiﬀ, but also Keep\nChicago Livable as an organization.\n A\n We begin with the individual plaintiﬀs. While the\namended complaint names six individuals as plaintiﬀs, the\nrequisite standing inquiry—”an essential and unchanging\npart of the case-or-controversy requirement of Article III”—\nproceeds person-by-person. Lujan v. Defenders of Wildlife, 504\nU.S. 555, 560 (1992). Standing requires a threefold demonstra-\ntion of “(1) an injury in-fact; (2) fairly traceable to the defend-\nant’s action; and (3) capable of being redressed by a favorable\ndecision from the court.” Pavrati Corp. v. City of Oak Forest, Ill.,\n630 F.3d 512, 516 (7th Cir. 2010) (citing Lujan, 504 U.S. at 560–\n61). The alleged injury must be not just “concrete and partic-\nularized,” but also “actual and imminent, not conjectural or\nhypothetical.” Lujan, 504 U.S. at 560; see also Spokeo, Inc. v.\nRobins, 136 S. Ct. 1540, 1547–48 (2016).\n The necessity of demonstrating and maintaining standing\ndoes not subside as litigation proceeds. To the contrary,\n“standing must be present at all stages of the litigation, in-\ncluding on appeal.” Pavrati Corp., 630 F.3d at 516. Or, perhaps\nmore precisely as applied here, the asserted injury in-fact (and\nthus the requirements of concreteness, particularity, actuality,\nand imminence) must remain throughout the litigation, lest a\ncase or controversy cease to exist and become moot. See\nFriends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528\nU.S. 167, 189 (2000); see also United States v. Accra Pac, Inc., 173\nF.3d 630, 633 (7th Cir. 1999). The burden of making this show-\ning—of demonstrating the requisite injury to invoke federal\n\f6 Nos. 17-1656 & 17-2846\n\njurisdiction—rests with the plaintiﬀ. See Spokeo, 136 S. Ct. at\n1547.\n Using these standards, we cannot conclude with\nconﬁdence that any named plaintiﬀ presently has standing. We\nemphasize that our inquiry focuses on the here and now—\nstanding at the time of these appeals—because meaningful\ntime has passed since the original complaint was ﬁled (in\nNovember 2016), and the plaintiﬀs’ supplemental brief\nreveals that the passage of time has resulted in changed facts\nand circumstances for each of the six individuals named as\nplaintiﬀs in the amended complaint (ﬁled in February 2017).\nHere is what we are able to discern:\n • Benjamin Wolf served as Keep Chicago\n Livable’s ﬁrst president and, as alleged in the\n original complaint, not only used Airbnb to rent\n his home in Chicago, but also intended to\n continue doing so. According to plaintiﬀs’\n supplemental brief, however, Wolf has since\n sold his property in Chicago and moved to\n Ohio.\n • Susan Maller lives in a Chicago apartment and,\n as alleged in the amended complaint, was pre-\n cluded from listing it on Airbnb because of the\n “harassment of her building’s property man-\n ager.” Plaintiﬀs’ supplemental brief does not\n further explain the harassment and merely\n states—without any additional allegation—that\n Maller has “ceased Airbnb operations due to the\n restrictions of the Shared Housing Ordinance.”\n\fNos. 17-1656 & 17-2846 7\n\n • Danielle McCarron once lived in an apartment\n appearing on the City’s Prohibited Buildings\n List but has since moved. And, as with Maller,\n plaintiﬀs’ supplemental brief summarily says\n that, because of the City’s Ordinance, she is no\n longer attempting to participate in Airbnb.\n • Antoinette Wonsey lives in Chicago and, ac-\n cording to the amended complaint, is an\n “Airbnb host manager” who helps guests in her\n neighborhood ﬁnd accommodations. Without\n any particularity, she alleges that she no longer\n engages in these activities because of the Ordi-\n nance.\n • Monica Wolf lives in Kentucky but frequently\n visits Chicago and in the amended complaint\n alleged that the Ordinance limited her preferred\n rental options. Plaintiﬀs’ supplemental brief\n indicates Wolf has not returned to Chicago,\n “having been denied full access to all hosts who\n would otherwise list on Airbnb.”\n • John Doe is a citizen of Canada who frequently\n used Airbnb to visit Chicago. In the amended\n complaint, he alleged that his ability to\n “associate with Chicagoans is inhibited by the\n Prohibited Buildings List.” Plaintiﬀs’\n supplemental brief says that Doe, much like\n Monica Wolf, has not returned to Chicago since\n the Ordinance went into eﬀect.\n None of this adds up to the clear, requisite showing of an\nongoing, concrete, and particularized injury caused by the\n\f8 Nos. 17-1656 & 17-2846\n\nOrdinance and capable of being redressed by a favorable\nruling in these appeals. No longer owning property in\nChicago, Benjamin Wolf’s claims have become moot; Maller,\nMcCarron, and Wonsey allege with no particularity how the\nOrdinance (and not some other factor) is preventing or\nhampering any of their own home-sharing activities in\nChicago; and the out-of-town renters, Monica Wolf and Doe,\ndo not convey with suﬃcient clarity or particularity whether\nthey still wish to visit Chicago and, if so, how the Ordinance\nis chilling or inhibiting them from doing so.\n Our conclusion is narrow—limited to and conﬁned by the\ninformation before us—and handicapped by neither party fo-\ncusing on standing before these appeals. It may be on remand,\nperhaps following additional brieﬁng or upon the ﬁling of a\nsecond amended complaint, that at least one individual plain-\ntiﬀ is able to establish standing and thereby jumpstart this lit-\nigation, as the plaintiﬀs so plainly wish to do. But Article III’s\ncase or controversy mandate does not allow us to take the\nshortcut of moving to the merits of plaintiﬀs’ claims before\nensuring the presence of a plaintiﬀ with standing. See Steel Co.\nv. Citizens for a Better Env’t, 523 U.S. 83, 94–96 (1998).\n B\n We reach the same conclusion when turning our focus to\nKeep Chicago Livable. The organization is an Illinois non-\nproﬁt corporation with the stated goal of educating Chicago\nhosts about compliance with state and local home-sharing\nlaws. In its original and amended complaints, the\norganization alleged that the Ordinance burdens its ability “to\nperform its function of educating and advising hosts and\nputative hosts as to their proper rights and duties under this\nnew law, while the aforementioned constitutional questions\n\fNos. 17-1656 & 17-2846 9\n\nremain unresolved.” This allegation suggests that Keep\nChicago Livable brought its lawsuit to vindicate an injury to\nthe organization itself. But in its supplemental brief the\norganization states that it is suing not only “on its own\nbehalf,” but also “as a representative association” on behalf of\nits members. These distinctions matter.\n If Keep Chicago Livable is suing to remedy an injury to the\norganization, the allegations in the original and amended\ncomplaints fall short of establishing standing. All Keep\nChicago Livable contends, and even then only generally, is\nthat the alleged uncertainty around the Ordinance’s\nconstitutionality burdens the organization’s education and\nadvocacy mission. But nowhere does the organization allege\nthat it owns or rents property or otherwise engages in activity\nregulated or protected by the Ordinance. And none of the\nclaims advanced in the original or amended complaints are\ncast in terms of injury to the organization; rather, and despite\nKeep Chicago Livable’s insistence that it is suing for injuries\nto the organization, each claim is advanced in terms of injury\nto an individual’s constitutional rights (whether under the\nFirst Amendment, Due Process Clause, or otherwise).\n On these pleadings and this limited record, we cannot\nconclude that Keep Chicago Livable has alleged a concrete\nand particularized injury to the organization itself that would\nbe redressed by the declaratory judgment or injunction\nsought in the original or amended complaints. It is not\nenough to contend (at least at the level of abstraction at which\nKeep Chicago Livable proceeds here) that the legal clarity that\nmay come from a judicial ruling on any individual plaintiﬀ’s\nclaims challenging the Ordinance would redress an injury to\nthe organization itself.\n\f10 Nos. 17-1656 & 17-2846\n\n The Supreme Court’s decision in Havens Realty Corp. v.\nColeman aﬀords Keep Chicago Livable no refuge. 455 U.S. 363\n(1982). In Havens, a non-proﬁt organization dedicated to\nensuring open housing brought claims under the Fair\nHousing Act alleging injury on the basis of having expended\nsigniﬁcant resources investigating and reporting racially-\ndiscriminatory housing practices by a realty company in a\nsuburb of Richmond, Virginia. See id. at 369. The organization\nspeciﬁcally contended that the realty company’s practice of\nsteering apartments on the basis of race hindered its\ninstitutional eﬀorts to assist prospective tenants in realizing\nequal access to housing. See id. at 379. The Court concluded\nthat these allegations were suﬃcient to confer standing on the\norganization, reasoning that “[s]uch concrete and\ndemonstrable injury to the organization’s activities—with the\nconsequent drain on the organization’s resources—\nconstitutes far more than simply a setback to the\norganization’s abstract social interests.” Id.\n The organizational injury alleged by Keep Chicago\nLivable is much less direct than the one before the Supreme\nCourt in Havens. The original and amended complaints sound\ntheir contention of injury in no more than Keep Chicago\nLivable ﬁnding it diﬃcult to advocate and educate on home-\nsharing in Chicago before a court rules on the individual\nplaintiﬀs’ challenges to the constitutionality of the Ordinance.\nNary a word in either complaint tethers any particular\nrequirement of the Ordinance to a speciﬁc harm to the\norganization. And the only time Keep Chicago Livable\nmentioned a drain on its resources was in its supplemental\nbrief on appeal, but even then at a high level of generality and\nwithout a clear nexus to any legally-protected right or interest\nof the organization. On the record before us, Keep Chicago\n\fNos. 17-1656 & 17-2846 11\n\nLivable has shown little more than a “mere interest in a\nproblem.” Sierra Club v. Morton, 405 U.S. 727, 739 (1972).\n A diﬀerent analysis would apply if Keep Chicago Livable\nhad brought suit on behalf of its members. The test for associ-\national standing comes from the Supreme Court’s decision in\nHunt v. Washington State Apple Advertising Commission, 432\nU.S. 333 (1977). To sue in a representative capacity, Hunt re-\nquires Keep Chicago Livable to show that “(a) its members\nwould otherwise have standing to sue in their own right; (b)\nthe interests it seeks to protect are germane to the organiza-\ntion’s purpose; and (c) neither the claim asserted nor the relief\nrequested requires the participation of individual members in\ntheir lawsuit.” Id. at 343.\n Even if we assume Keep Chicago Livable brought suit on\nbehalf of its members—an assumption at odds with the\nallegations within the four corners of the original and\namended complaints—the organization cannot clear Hunt’s\nﬁrst hurdle. The organization is unable to identify an\nindividual plaintiﬀ with standing to bring any claim. See\nHope, Inc. v. DuPage Cnty., Ill., 738 F.2d 797, 814 (7th Cir. 1984).\nIndeed, at an even more basic level, the record leaves unclear\nwhether any of the six named plaintiﬀs remain members of\nKeep Chicago Livable. So the organization’s plea for\nassociational standing runs into the same barrier the\nindividual named plaintiﬀs cannot overcome on the present\npleadings and record: there is not enough before us to\nconclude that any individual plaintiﬀ presently has the\nrequisite injury to establish standing.\n Here, too, Keep Chicago Livable may be able to close the\ngap on remand. The organization, in a new round of pleading\nor other submissions, may be able to identify an individual\n\f12 Nos. 17-1656 & 17-2846\n\nplaintiﬀ with standing. And perhaps that will be enough to\nsatisfy Hunt when combined with Keep Chicago Livable’s\nexisting allegations (in the original and amended complaints)\nabout the organization’s mission as well as the sworn\nstatement submitted as part of the supplemental brief in this\ncourt by the organization’s current president. All of this is\nappropriately reserved to the district court’s assessment in the\nﬁrst instance.\n C\n The proper course in these circumstances is to vacate the\ndistrict court’s decisions and remand for a determination of\nstanding. See, e.g., Tarpley v. Jeﬀers, 96 F.3d 921, 924 (7th Cir.\n1996). The district court has ample discretion to structure the\nproceedings in accordance with this opinion, including by\npermitting substitutions of new parties and a second\namended complaint. Our sole observation is that the district\ncourt, if it determines that a plaintiﬀ has standing, should\naﬀord the plaintiﬀ one (and only one) opportunity to move\nfor a preliminary injunction, with the court from there\nproceeding to ﬁnal judgment as appropriate. We deny Keep\nChicago Livable’s request to reassign the case on remand.\n For these reasons, we VACATE the district court’s deci-\nsions and REMAND for further proceedings.\n[END_CASE]", "role": "user" } ]
4,581,364		Daniel Rivera v. Allstate Insurance Company	2019-01-14	17-1649	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before KANNE and SYKES, Circuit Judges, and DARROW, District Judge.", "parties": "", "opinions": [{"author": "Diane S. Sykes", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNos. 17-1310 & 17-1649\nDANIEL RIVERA, et al.,\n Plaintiffs-Appellees.\n v.\n\nALLSTATE INSURANCE COMPANY,\n Defendant-Appellant.\n ____________________\n\n Appeals from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 10 C 1733 — William T. Hart, Judge.\n ____________________\n\n ARGUED OCTOBER 25, 2017 — DECIDED OCTOBER 31, 2018\n AS AMENDED ON PETITION FOR REHEARING JANUARY 14, 2019\n ____________________\n\n Before KANNE and SYKES, Circuit Judges, and DARROW,\nDistrict Judge. \n SYKES, Circuit Judge. In 2009 Allstate Insurance Company\nlaunched an internal investigation into suspicious trading on\nits equity desk. The initial inquiry unearthed email evidence\nsuggesting that several portfolio managers might be timing\n\n Of the Central District of Illinois, sitting by designation.\n\f2 Nos. 17-1310 & 17-1649\n\ntrades to inflate their bonuses at the expense of their portfo-\nlios, which included two pension funds to which Allstate\nowed fiduciary duties. Allstate retained attorneys from\nSteptoe & Johnson to investigate further, and they in turn\nhired an economic consulting firm to calculate potential\nlosses. Based on the email evidence, the consulting firm\nfound reason to believe that timed trading had potentially\ncost the portfolios $8 million and possibly much more.\nBecause actual losses could not be established, the consult-\nants used an algorithm to estimate a potential adverse\nimpact of $91 million on the pension funds. Everyone under-\nstood that this estimate was wildly unrealistic, but in an\nabundance of caution, Allstate poured $91 million into the\npension portfolios.\n When the investigation wrapped up, Steptoe lawyers de-\nlivered oral findings to Allstate. The company thereafter\ndetermined that four portfolio managers—Daniel Rivera,\nStephen Kensinger, Deborah Meacock, and Rebecca\nScheuneman—had violated the company’s conflict-of-\ninterest policy by timing trades to improve their bonuses. On\nDecember 3, 2009, Allstate fired them for cause.\n On February 25, 2010, Allstate filed its annual Form 10-K\nfor 2009. The report explained that: (1) in 2009 the company\nhad received information about possible timed trading and\nretained counsel to investigate; (2) counsel hired an econom-\nic consulting firm to estimate the potential impact on the\nportfolios; and (3) based on this outside investigation,\nAllstate paid $91 million into the two pension funds to cover\nthe potential adverse impact. That same day Allstate sent a\nmemo to employees in its Investment Department describ-\ning the information disclosed in the 10-K. Neither document\nmentioned the four fired portfolio managers.\n\fNos. 17-1310 & 17-1649 3\n\n Three weeks later the four former employees sued All-\nstate in federal court for defamation based on the 10-K and\nthe internal memo. They also alleged that Allstate violated\n15 U.S.C. § 1681a(y)(2), a provision in the Fair Credit Report-\ning Act (“FCRA or the Act”), by failing to give them a sum-\nmary of Steptoe’s findings after they were fired. The\ndefamation claim was the main event in the litigation; the\nFCRA claim received comparatively little attention. A jury\nreturned a verdict in the plaintiffs’ favor, awarding more\nthan $27 million in compensatory and punitive damages,\nand statutory damages on the FCRA claim (there are no\nactual damages on that claim). The district judge tacked on\nadditional punitive damages and attorney’s fees under the\nFCRA.\n Allstate attacks the defamation awards on multiple\ngrounds and also argues that the FCRA awards must be\nvacated for lack of standing under Spokeo, Inc. v. Robbins,\n136 S. Ct. 1540 (2016). We agree that the plaintiffs lack a\nconcrete injury to support Article III standing on the FCRA\nclaim. So that claim must be dismissed on jurisdictional\ngrounds. And that ends our review. Because the FCRA claim\nprovided the sole basis for federal jurisdiction—and thus the\nonly basis for the district court to exercise supplemental\njurisdiction over the state-law claim under 28 U.S.C.\n§ 1367(a)—the district court was without power to adjudi-\ncate the defamation claim, and it too must be dismissed for\nlack of jurisdiction. The parties did not identify the § 1367(a)\njurisdictional problem in their initial briefing, but that does\nnot matter; defects in subject-matter jurisdiction must al-\nways be addressed. Accordingly, we vacate the judgment\nand remand with instructions to dismiss the action in its\n\f4 Nos. 17-1310 & 17-1649\n\nentirety for lack of subject-matter jurisdiction. See FED. R.\nCIV. P. 12(h)(3).\n I. Background\n Plaintiffs Rivera, Kensinger, Meacock, and Scheuneman\nwere employed as securities analysts in the Equity Division\nof Allstate’s Investment Department. Rivera was the Division\ndirector, and Kensinger, Meacock, and Scheuneman were\nanalysts on the growth team. During their time with the\ncompany, the Equity Division managed and invested\n$10 billion in assets on behalf of various funds, including\ntwo defined-benefit pension plans. Because the plaintiffs\nhelped manage two pension portfolios, they occupied posi-\ntions of trust and owed a duty of loyalty to plan beneficiaries\nunder the Employee Retirement Income Security Act. See\n29 U.S.C. § 1104(a)(1). They were also bound by Allstate’s\ncode of ethics, which required them to avoid conflicts of\ninterest.\n In addition to their salaries, the plaintiffs were eligible to\nreceive bonus compensation under Allstate’s “pay-for-\nperformance” plan. The plan relied on a formula called the\n“Dietz method” to estimate portfolio returns and evaluate\nperformance accordingly. The Dietz method assumes that all\ncash flows in a portfolio occur at the same time of day; high\ntransaction volume makes it impractical to use actual trade\ntimes. The particular formula in use at Allstate assumed all\ncash flows occurred at midday.\n While practical, Allstate’s formula had two drawbacks.\nFirst, it distorted a portfolio’s actual performance, both\npositive and negative. The midday Dietz method inflated\nmeasured performance for sales on up days and buys on\ndown days; conversely, it understated measured perfor-\n\fNos. 17-1310 & 17-1649 5\n\nmance when sales were made on down days and buys on up\ndays. Allstate’s traders referred to this discrepancy as the\n“Dietz effect.”\n Second, the formula could be manipulated. Because it as-\nsumed that all cash flows occurred midday, portfolio man-\nagers could wait until the end of day to calculate the Dietz\neffect before deciding to execute a trade. The system conse-\nquently rewarded portfolio managers who waited to make\ntrades even if the portfolio suffered as a result. Moreover,\nAllstate’s bonus structure measured performance relative to\na daily benchmark; it didn’t consider market movement in\nthe preceding days. This feature also pitted the interests of\nthe manager against those of the portfolio. A manager could\nimprove his performance by delaying a sale over several\ndown days before selling on an up day even if the portfolio\nwould have been better off if he sold earlier. In sum, under\nAllstate’s pay-for-performance plan, portfolio managers\ncould boost their bonus pay by timing trades—potentially at\nthe expense of their portfolios.\n In mid-2009 Allstate received troubling information that\nits portfolio managers were doing just that. Peter Hecht, a\nmember of Allstate’s Performance Management Group,\nreported to Chief Compliance Officer Trond Odegaard that\nmembers of the Equity Division were delaying trades to\nmaximize their bonuses at the expense of their portfolios.\nOdegaard passed these concerns along to Chief Investment\nOfficer Judy Greffin, who ordered him to investigate.\n Odegaard and a team of Allstate employees soon discov-\nered signs of timed trading. The team noted several trading\npatterns that suggested portfolio managers had delayed\ntrades to take advantage of the Dietz effect. The investiga-\n\f6 Nos. 17-1310 & 17-1649\n\ntion also uncovered emails suggesting that the managers\nwere aware of the Dietz effect and actively considered it\nwhen trading. Though not conclusive, the investigation\nraised concerns that personnel in the Equity Division had\ntimed trades to increase bonuses at the expense of their\nportfolios; as a result, Allstate may have reported inaccurate\nfinancial information to the public.\n Allstate accordingly retained the law firm Steptoe &\nJohnson to investigate further. Steptoe attorneys interviewed\nRivera and Scheuneman regarding their trading practices\nand hired NERA Economic Consulting, Inc., an independent\neconomic consulting firm, to determine if timed trading had\nharmed the portfolios, especially the pension funds. Begin-\nning with the trades mentioned in the suspicious emails and\neventually reviewing six years of trading data, NERA pre-\nliminarily estimated a potential adverse portfolio impact of\n$8.2 million.\n But NERA had reason to believe that the actual impact\nmay be much higher. Several suspicious emails could not be\ntied to particular trades, and other evidence suggested that\nportfolio managers routinely considered Dietz in the course\nof trading. Based on Allstate’s records, however, it was not\npossible to calculate actual losses with any precision. So\nNERA devised an algorithm that would capture every Dietz-\nfavorable trade from June 2003 to May 2009 that was execut-\ned after a series of days where the Dietz effect would have\nharmed the trader’s performance. Based on these parame-\nters, NERA estimated that over the six years surveyed, the\npotential adverse impact on the pension plans was\n$91 million and the potential adverse impact on the compa-\nny’s other portfolios was $116 million. It was clear to every-\none that these estimates vastly overstated the potential effect\n\fNos. 17-1310 & 17-1649 7\n\nof timed trading. Erring on the side of caution, however, in\nmid-December Allstate paid $91 million into the two pension\nplans to compensate for any potential losses.\n While the investigation was ongoing, Allstate disbanded\nthe Equity Division and outsourced its work to Goldman\nSachs. On October 6, 2009, Greffin met first with Rivera and\nthen the rest of the division and explained that every mem-\nber, save those who managed convertible portfolios, would\nbe let go effective December 31, 2009. The laid-off employees\nwould, however, receive severance pay. Later that day\nSteptoe attorneys conducted off-site interviews with Equity\nDivision managers concerning Dietz trading.\n The outside investigation soon wrapped up, and Steptoe\nattorneys orally reported the findings to Allstate. Based on\nthe internal and external investigations, Allstate concluded\nthat Rivera, Meacock, Scheuneman, and Kensinger had\nviolated the company’s conflict-of-interest policy by timing\ntrades. On December 3, 2009, Brett Winchell, the Director of\nHuman Resources, informed each of the four analysts that\nthey were fired for cause effective immediately. Winchell\ndelivered the bad news by reading from a short script that\nreminded the four managers of the investigation into timed\ntrading, noted that each of them had been interviewed by\noutside counsel, and explained that they were being fired\nbecause they violated Allstate’s conflict-of-interest policy. All\nfour asked Winchell for additional explanation; they later\nasked the same questions in writing. No further explanation,\noral or written, was forthcoming. Allstate immediately\nescorted them off the premises and disconnected their phone\nand email service the next day.\n\f8 Nos. 17-1310 & 17-1649\n\n On December 16 Steptoe attorneys met with regulators in\nthe Department of Labor’s Employee Benefits Security\nAdministration to discuss the investigation as it related to\nthe pension funds. At the Department’s request, Steptoe sent\na follow-up letter summarizing the allegations of timed\ntrading and the subsequent investigation. The letter—dated\nJanuary 29, 2010—advised the Department that the employ-\nees in Allstate’s Equity Division had denied that they im-\nproperly delayed trades but that several emails “could\nsupport a contrary conclusion.” The letter further explained\nthat NERA’s algorithm “estimate[d] potential disadvantage\nto the plans” but that “there is little question that the algo-\nrithm overstate[d] any disadvantages that the plans might\nhave suffered.” Finally, the letter explained that “taking into\naccount returns recalculated by NERA,” the estimated\n“increase in the aggregate bonuses for the entire group” was\n“approximately $1.2 million.”\n Fast-forward to October 14, 2010. On that day Allstate’s\nin-house counsel sent another letter to the Labor Department\nclarifying that the $1.2 million figure “roughly approxi-\nmate[d] the potential increase in bonuses, … assum[ing] the\nalgorithm used by NERA … reflected actual trading activi-\nty.” This letter emphasized that NERA’s calculations estimat-\ned “a possible maximum impact” and explained that “[n]o\none believed, then or now, that this was an accurate descrip-\ntion of the activity on the equity desk, nor that any actual\nimpact on the portfolios was anywhere near the result\nproduced by using the NERA algorithm.” The October letter\nalso stated that if the analysis had been limited to the trades\nmentioned in the suspicious emails, “there would have been\nvirtually no effect on bonuses.”\n\fNos. 17-1310 & 17-1649 9\n\n Returning now to our chronology, on February 25, 2010,\nAllstate filed its annual 10-K report for 2009 in which it\ndisclosed the allegations of timed trades and explained in\ngeneral terms the subsequent investigation and the compa-\nny’s decision to reimburse the two pension plans. As rele-\nvant here, the 10-K stated:\n In 2009, we became aware of allegations\n that some employees responsible for trading\n equity securities in certain portfolios of two\n [Allstate Insurance Company] defined benefit\n pension plans and certain portfolios of [All-\n state Insurance Company] and an [Allstate In-\n surance Company] subsidiary may have timed\n the execution of certain trades in order to en-\n hance their individual performance under in-\n centive compensation plans, without regard to\n whether such timing adversely impacted the\n actual investment performance of the portfoli-\n os.\n We retained outside counsel, who in turn\n engaged an independent economic consulting\n firm to conduct a review and assist us in un-\n derstanding the facts surrounding, and the po-\n tential implications of, the alleged timing of\n these trades for the period from June 2003 to\n May 2009. The consulting firm reported that it\n was unable to determine from our records the\n precise amounts by which portfolio perfor-\n mance might have been adversely impacted\n during that period. Accordingly, the economic\n consultant applied economic modeling tech-\n niques and assumptions reasonably designed\n\f10 Nos. 17-1310 & 17-1649\n\n to estimate the potential adverse impact on the\n pension plans and the company accounts, tak-\n ing into account, among other things, the dis-\n tinctions between the pension plans and the\n company portfolios.\n Based on their work, the economic consult-\n ants estimated that the performance of the\n pension plans’ portfolios could have been ad-\n versely impacted by approximately $91 million\n (including interest) and that the performance\n of the company portfolios could have been ad-\n versely impacted by approximately $116 mil-\n lion (including interest) in the aggregate over\n the six-year period under review. We believe\n that our financial statements and those for the\n pension plans properly reflected the portfolios’\n actual investment performance results during\n the entire period that was reviewed.\n In December 2009, based on the economic\n consultant’s modeled estimates, we paid an ag-\n gregate of $91 million into the two defined\n benefit pension plans. These payments had no\n material impact on our reported earnings or\n shareholders’ equity, but reduced our assets,\n operating cash flows, and unfunded pension\n liability to the plans. … At all times during this\n period, the plans were adequately funded pur-\n suant to applicable regulatory and actuarial re-\n quirements. As a result of these additional\n funds in the plans, our future contributions to\n the plans, based on actuarial analysis, may be\n reduced. Using the economic consultant’s cal-\n\fNos. 17-1310 & 17-1649 11\n\n culation of the potential adverse impact on the\n portfolios, we currently estimate that the addi-\n tional compensation paid to all the employees\n working in the affected group was approxi-\n mately $1.2 million over the six-year period as\n a result of these activities. In late 2009, we re-\n tained an independent investment firm to con-\n duct portfolio management and trading\n activity for the specific portfolios impacted by\n these activities.\n That same day Greffin sent a memo to all employees in\nthe Investment Department alerting them to the information\nin the 10-K filing. In full, the Greffin memo states:\n Allstate released its annual financial report\n on Form 10–K today. Within that filing, we dis-\n closed details around allegations regarding\n trading practices within our equity portfolios\n that came to light in the past year. We took this\n matter very seriously and launched an investi-\n gation as soon as we became aware of the alle-\n gations.\n Outside counsel was retained to assist us in\n understanding the facts surrounding, and the\n potential implications of, these activities. As\n part of their analysis, an independent econom-\n ic consulting firm was retained to estimate the\n potential adverse impact to the performance of\n our portfolios. The consultant determined that\n the performance on some of our portfolios, as\n well as our two pension plan portfolios, could\n have been adversely impacted by the activities.\n\f12 Nos. 17-1310 & 17-1649\n\n As a result, Allstate made a contribution to the\n pension plans during the 4th quarter which is\n disclosed in the 10–K.\n We believe that our financial statements\n and those of the pension plans properly re-\n flected the portfolios’ actual investment per-\n formance and the pension plans were\n adequately funded during this entire period.\n This matter did not affect the plans’ ability to\n continue to provide benefits to plan partici-\n pants.\n Situations like this can be unsettling and\n can reflect poorly on our organization. Howev-\n er, I believe organizations are also defined by\n how they respond to events like this. We were\n transparent in reporting this matter to the\n U.S. Department of Labor and the S.E.C., and\n disclosed it to our investors. We’re taking steps\n to improve our governance, compliance prac-\n tices and training.\n We remain committed to the highest levels\n of ethics and integrity in the stewardship\n of Allstate’s assets.\n Three weeks later the four fired portfolio managers sued\nAllstate and Greffin in federal court for defamation based on\nthe 10-K and Greffin’s internal memo. They also asserted a\nclaim against Allstate for violation of § 1681a(y)(2) of the\nFCRA and a claim against Greffin for tortious interference\nwith prospective economic advantage. The district judge\ndismissed the tortious-interference claim, and the plaintiffs\nthen amended their complaint to add an age-discrimination\n\fNos. 17-1310 & 17-1649 13\n\nclaim against Allstate. They later dismissed the discrimina-\ntion claim as well as the defamation claim against Greffin.\n Lengthy discovery ensued and in due course Allstate\nmoved for summary judgment. Judge Feinerman ruled that\nthe statements in the 10-K and the Greffin memo were not\ndefamatory per se. Rivera v. Allstate Ins. Co., 140 F. Supp. 3d\n722, 729–30 (N.D. Ill. 2015). But he permitted the case to go\nforward on a theory of defamation per quod and on the\nFCRA claim. Id. at 730–37.\n As narrowed, the case proceeded to a jury trial with\nJudge Hart presiding. The jury found for the plaintiffs across\nthe board and awarded more than $27 million in compensa-\ntory and punitive damages, broken down roughly as fol-\nlows:\n Rivera:\n $7.1 million (defamation compensatory damages)\n $4 million (defamation punitive damages)\n $1,000 (FCRA statutory damages)\n Kensinger:\n $2.9 million (defamation compensatory damages)\n $2 million (defamation punitive damages)\n $1,000 (FCRA statutory damages)\n Meacock:\n $3.6 million (defamation compensatory damages)\n $3 million (defamation punitive damages)\n $1,000 (FCRA statutory damages)\n\f14 Nos. 17-1310 & 17-1649\n\n Scheuneman:\n $3.4 million (defamation compensatory damages)\n $1 million (defamation punitive damages)\n $1,000 (FCRA statutory damages)\n Allstate moved for judgment as a matter of law, or alter-\nnatively, for a new trial. The plaintiffs separately asked the\njudge for an award of punitive damages and attorney’s fees\nunder the FCRA. 15 U.S.C. § 1681n(a)(2), (3) (authorizing\n“such amount of punitive damages as the court may allow”\nand attorney’s fees for willful violations of the FCRA).\n Judge Hart denied Allstate’s motion and granted the\nplaintiffs’ requests, awarding each plaintiff an additional\n$3,000 in punitive damages under the FCRA and approving\ntheir request for $357,716.25 in attorney’s fees associated\nwith the statutory claim.\n II. Discussion\n Allstate attacks this large judgment on many grounds. In\nbrief, the company argues that the defamation awards must\nbe set aside because: (1) the statements in the 10-K and the\nGreffin memo were substantially true; (2) neither the 10-K\nnor the Greffin memo identified the plaintiffs, and no evi-\ndence supports a finding that these documents could be\nreasonably understood to refer to them; (3) the statements in\nthe 10-K and the Greffin memo were privileged; and (4) the\nplaintiffs failed to prove special damages as required for\nrecovery for defamation per quod. Regarding the FCRA\nawards, Allstate argues that the plaintiffs lack standing\nunder Spokeo, and secondarily, that the record does not\nsupport the jury’s finding of a willful violation of the statute\nas required for statutory and punitive damages. (There are\n\fNos. 17-1310 & 17-1649 15\n\nno actual damages.) Finally, Allstate attacks the award of\nFCRA attorney’s fees as excessive and disproportionate\nconsidering the relative insignificance of the statutory claim\nto this litigation.\n The state-law defamation claim predominated over the\nfederal claim in this long-running litigation—both in the\ndistrict court and here. The FCRA claim occupied very little\nof the parties’ appellate briefing and received only modest\nattention below. Our initial opinion vacated the defamation\nawards based on the plaintiffs’ failure to prove special\ndamages. We also vacated the FCRA awards for lack of\nstanding under Spokeo and remanded with instructions to\ndismiss the federal claim for lack of jurisdiction.\n The plaintiffs petitioned for rehearing, raising for the first\ntime a probable jurisdictional defect under § 1367 if we\nfound—as we did—that they failed to establish an injury in\nfact sufficient to support Article III standing to litigate the\nFCRA claim. The petition noted that the FCRA claim pro-\nvided the only jurisdictional basis for litigating this entire\ndispute in federal court. The district court’s jurisdiction\nrested solely on federal-question jurisdiction, see 28 U.S.C.\n§ 1331; the parties are not diverse, so 28 U.S.C. § 1332 does\nnot apply. And the court’s supplemental jurisdiction under\n§ 1367(a) to adjudicate the state-law defamation claim evap-\norates if the claim on which federal jurisdiction rests is\ndismissed on jurisdictional grounds.\n We accordingly withdraw our original opinion and in its\nplace substitute this amended opinion. Although the parties\nspent most of their energy on the merits of the defamation\nclaim, our analysis begins and ends with the jurisdictional\nbasis for the FCRA claim.\n\f16 Nos. 17-1310 & 17-1649\n\n Relying on Spokeo, Allstate maintains that the FCRA\nawards must be tossed out for lack of standing. A bit of\nstatutory background is required to understand the FCRA\nclaim in this case. We note for starters that the case repre-\nsents an odd application of the Act. The FCRA regulates the\nactivities of consumer reporting agencies and the permissi-\nble uses of consumer reports by third parties. Among many\nother regulatory requirements, the Act imposes certain\nprocedures for the use of consumer reports for employment\npurposes.\n For example, the Act prohibits an employer from procur-\ning a consumer report about an employee or job applicant\nwithout first giving that person a stand-alone written notice\nthat “clear[ly] and conspicuous[ly]” discloses the employer’s\nrequest for permission to access the report and the person\nsigns a written consent to release the report to the employer.\nSee 15 U.S.C. § 1681b(b)(2)(A) (establishing the disclosure\nand consent requirements); see id. § 1681a(d)(1) (defining\n“consumer report” to include reports about a consumer’s\ncreditworthiness and personal background compiled by a\n“consumer reporting agency” and “used or expected to be\nused … for the purpose of serving as a factor in establishing\nthe consumer’s eligibility for” credit, insurance, or “em-\nployment purposes”).\n The Act further requires that before taking any adverse\naction against an employee or job applicant “based in whole\nor in part” on such a report, the employer must give the\nemployee or applicant a copy of the report and a written\ndescription of the person’s rights under the Act. Id.\n§ 1681b(b)(3)(A).\n\fNos. 17-1310 & 17-1649 17\n\n The FCRA provision at issue here appears in § 1681a,\nwhich contains the Act’s definitions and rules of construc-\ntion. (The statutory scheme is reticulated and complex, so\nbear with us.) Subsection (d)(2)(D) of § 1681a excludes from\nthe definition of “consumer report” any “communication\ndescribed in subsection (o) or (x).” The reference to “subsec-\ntion (x)” is an error; it should read “subsection (y).” The\nerror was introduced in the Dodd–Frank Act of 2010, 1 which\nredesignated the former subsection (x) as subsection (y) but\nneglected to update the cross-reference in § 1681a(d)(2)(D).\nSee Pub. L. No. 111-203, § 1988(a)(1)(A), 124 Stat. 1376, 2086.\n Subsection (y), the cross-referenced provision, was enact-\ned as part of the Fair and Accurate Credit Transactions Act\nof 2003, Pub. L. No. 108-159, § 611, 117 Stat. 1952, 2010. It\nreads in pertinent part:\n (1) Communications described in this subsec-\n tion\n A communication is described in this subsec-\n tion if–\n (A) but for subsection (d)(2)(D), the com-\n munication would be a consumer report;\n (B) the communication is made to an em-\n ployer in connection with an investigation of—\n (i) suspected misconduct relating to\n employment; or\n\n\n\n1 Technically, the Dodd–Frank Wall Street Reform and Consumer\nProtection Act of 2010.\n\f18 Nos. 17-1310 & 17-1649\n\n (ii) compliance with Federal, State, or\n local laws and regulations, the rules of a\n self-regulatory organization, or any preex-\n isting written policies of the employer;\n (C) the communication is not made for the\n purpose of investigating a consumer’s credit\n worthiness, credit standing, or credit capacity;\n and\n (D) the communication is not provided to\n any person except–\n (i) to the employer or an agent of the\n employer;\n (ii) to any Federal or State officer, agen-\n cy, or department, or any officer, agency, or\n department of a unit of general local gov-\n ernment;\n (iii) to any self-regulatory organization\n with regulatory authority over the activities\n of the employer or employee;\n (iv) as otherwise required by law; or\n (v) pursuant to section 1681f of this title.\n (2) Subsequent disclosure\n After taking any adverse action based in whole\n or in part on a communication described in\n paragraph (1), the employer shall disclose to the\n consumer a summary containing the nature and\n substance of the communication upon which the\n adverse action is based, except that the sources of\n information acquired solely for use in prepar-\n\fNos. 17-1310 & 17-1649 19\n\n ing what would be but for subsection (d)(2)(D)\n an investigative consumer report need not be\n disclosed.\n15 U.S.C. § 1681a(y) (emphasis added).\n So in sum, and to radically simplify: By operation of the\ncross-reference in subsection (d)(2)(D) of § 1681a (and adjust-\ning for the Dodd–Frank mistake), the effect of subsection (y)\nis to exclude from the definition of “consumer report”—and\nthus from the myriad regulatory requirements applicable to\nconsumer reports—any communication that:\n (1) otherwise qualifies as a consumer report (but for sub-\n section (d)(2)(D));\n (2) was made to an employer in connection with an in-\n vestigation of employee misconduct;\n (3) was not made to the employer for purposes of inves-\n tigating an employee’s creditworthiness; and\n (4) is not disclosed to anyone other than the employer, a\n regulatory agency or authority, or as otherwise required\n by law.\n And although § 1681a simply defines statutory terms and\nrules of construction, subsection (y) goes on to say that\n“[a]fter taking any adverse action based in whole or in part\non” a communication of this type, the employer “shall\ndisclose to the consumer a summary containing the nature\nand substance” of the communication. Id. § 1681a(y)(2).\n Needless to say, this is an odd place to find a regulatory\nmandate on employer investigations into workplace mis-\nconduct. Indeed, the provision is so obscure that in its\n15-year existence, subsection (y)(2) of § 1681a appears in no\n\f20 Nos. 17-1310 & 17-1649\n\npublished opinion save the district court’s decision in this\ncase.\n Still, taking § 1681a(y)(2) at face value, we understand it\nto mean that when an employer procures what would other-\nwise qualify as a consumer report in connection with an inves-\ntigation into employee misconduct, the report is not\nconsidered a consumer report under the Act and thus is not\nsubject to either § 1681b(b)(2)(A) (requiring the employer to\ngive a stand-alone written notice and obtain written consent\nbefore procuring the report) or § 1681b(b)(3)(A) (requiring\nthe employer to give the employee or job applicant a copy of\nthe report and a description of his FCRA rights before taking\nan adverse action based on it). Instead, the employer need\nonly provide a summary—an oral summary apparently\nsuffices (subsection (y)(2) does not require anything in\nwriting)—and then only after taking an adverse action based\nin whole or in part on the report.\n The FCRA claim in this case rests on the premise that\nAllstate was required under subsection (y)(2) to provide a\nsummary of Steptoe’s investigation after firing the plaintiffs\nbut failed to do so. It’s not at all clear, though, that the\nSteptoe investigation would otherwise qualify as a “con-\nsumer report” but for the subsection (d)(2)(D) exclusion.\nAnd if the Steptoe investigation isn’t a “consumer report” in\nthe first place, then subsection (y)(2) does not come into play\nand the FCRA simply does not apply.\n Here is the Act’s full definition of the term “consumer\nreport”:\n The term “consumer report” means any\n written, oral, or other communication of any\n information by a consumer reporting agency bear-\n\fNos. 17-1310 & 17-1649 21\n\n ing on a consumer’s credit worthiness, credit\n standing, credit capacity, character, general\n reputation, personal characteristics, or mode of\n living which is used or expected to be used or\n collected in whole or in part for the purpose of\n serving as a factor in establishing the consum-\n er’s eligibility for—\n (A) credit or insurance to be used primarily\n for personal, family, or household purposes;\n (B) employment purposes; or\n (C) any other purpose authorized under\n section 1681b of this title.\n§ 1681a(d)(1) (emphasis added).\n The Steptoe investigation thus cannot be a “consumer\nreport” unless Steptoe qualifies under the Act as a “consum-\ner reporting agency.” Here, in turn, is how the Act defines a\n“consumer reporting agency”:\n The term “consumer reporting agency”\n means any person which, for monetary fees,\n dues, or on a cooperative nonprofit basis, regu-\n larly engages in whole or in part in the practice\n of assembling or evaluating consumer credit\n information or other information on consumers\n for the purpose of furnishing consumer reports\n to third parties, and which uses any means or\n facility of interstate commerce for the purpose\n of preparing or furnishing consumer reports.\n15 U.S.C. § 1681a(f).\n\f22 Nos. 17-1310 & 17-1649\n\n Steptoe & Johnson is a law firm. Nothing in the record\nsuggests that it “regularly engages” in “assembling or\nevaluating consumer credit information” or “furnishing\nconsumer reports to third parties.” The parties have not\nexplained how Steptoe qualifies as a consumer reporting\nagency or how its investigation into timed trading at Allstate\nqualifies as a consumer report. That’s probably because\nAllstate never disputed these points, choosing instead to\ncontest the FCRA claim on other grounds.\n As we explain in a moment, the plaintiffs’ FCRA awards\nmust be vacated on jurisdictional grounds based on the lack\nof any concrete injury to support Article III standing to sue.\nThis opinion should not be construed as endorsing the\nposition that a law-firm investigation of this type qualifies as\na consumer report within the meaning of the Act or that\nsubsection (y)(2) applies in a like situation.\n With that reservation out of the way, we move to the\nquestion of the plaintiffs’ standing. In Spokeo the Supreme\nCourt reinforced the principle that the “injury in fact”\nelement of Article III standing requires an injury that is both\n“concrete and particularized,” and that to be “concrete,” the\ninjury must be “real” and “not abstract”—“that is, it must\nactually exist.” 136 S. Ct. at 1548. The injury need not be\ntangible; Congress may identify intangible harms and author-\nize litigants to seek their redress in court. Id. at 1549. But a\nplaintiff does not “automatically satisf[y] the injury-in-fact\nrequirement whenever a statute grants a person a statutory\nright and purports to authorize that person to sue to vindi-\ncate that right.” Id.\n In Spokeo the plaintiff filed a proposed class action alleg-\ning violations of the FCRA—specifically, several provisions\n\fNos. 17-1310 & 17-1649 23\n\nimposing procedural requirements on consumer reporting\nagencies. Id. at 1545–46. The Court explained that a plaintiff\n“cannot satisfy the demands of Article III by alleging a bare\nprocedural violation” of the Act because “[a] violation of one\nof the FCRA’s procedural requirements may result in no\nharm.” Id. at 1550. The Court said that “a bare procedural\nviolation [of the Act], divorced from any concrete harm,” is\nnot an injury in fact sufficient to confer standing to sue. Id. at\n1549. On the other hand, the Court observed that some\nstatutory violations present a risk of real harm to a litigant\nand that “a plaintiff in such a case need not allege any\nadditional harm beyond the one Congress has identified.” Id.\n So standing questions in cases of this type sometimes re-\nquire us to identify the particular interest Congress sought\nto protect and to determine if the plaintiff has suffered a\nconcrete injury to that interest. Our recent decisions in\nGroshek v. Time Warner Cable, Inc., 865 F.3d 884 (7th Cir.\n2017), and Robertson v. Allied Solutions, LLC, 902 F.3d 690 (7th\nCir. 2018), are illustrative.\n The plaintiff in Groshek signed a form authorizing a pro-\nspective employer to obtain a consumer report about him in\nconnection with his job application; he alleged that the\ndisclosure form was not a stand-alone document as required\nby § 1681b(b)(2)(A). 865 F.3d at 885–86. Applying Spokeo, we\nheld that this claim rested on “a statutory violation com-\npletely removed from any concrete harm or appreciable risk\nof harm.” Id. at 887. We explained that the requirement of a\nstand-alone disclosure “does not seek to protect [the plain-\ntiff] from the kind of harm he claims he has suffered, i.e.,\nreceipt of a non-compliant disclosure.” Id. at 888. That is,\n“Congress did not enact § 1681b(b)(2)(A)(i) to protect job\napplicants from disclosures that do not satisfy the require-\n\f24 Nos. 17-1310 & 17-1649\n\nments of that section; it did so to decrease the risk that a job\napplicant would unknowingly consent to allowing a pro-\nspective employer to procure a consumer report.” Id. Be-\ncause the plaintiff acknowledged that he read and signed the\nemployer’s disclosure form, he had not suffered an injury to\nany interest protected by the Act. Id. at 888–89.\n In Robertson the plaintiff applied for a job with the de-\nfendant, and the defendant procured a background check in\nthe process of considering her application. The background\ncheck qualified as a consumer report under the FCRA, and\nthe employer asked the plaintiff to sign a consent form\ngiving it permission to obtain the report. She did so. The\nemployer initially offered her a job but then rescinded the\noffer when the background check turned up negative infor-\nmation. 902 F.3d at 693–94. She sued for two FCRA viola-\ntions: (1) the employer violated § 1681b(b)(2)(A) because the\nconsent form was not a stand-alone document and did not\ncontain “clear and conspicuous” disclosures, and (2) the\nemployer violated § 1681b(b)(3)(A) by failing to give her a\ncopy of the report before rescinding the job offer. Id. at 693.\nWe referred to the first claim as a “notice claim” and the\nsecond as an “adverse-action claim.” Id.\n The district court dismissed the entire case for lack of\nstanding, and we affirmed in part and reversed in part. The\nfirst claim, we said, was squarely controlled by our decision\nin Groshek, which held that “an injury functionally indistin-\nguishable from the one underpinning [the plaintiff’s] notice\nclaim was not concrete and did not confer standing.”\nRobertson, 902 F.3d at 694. Our conclusion in Groshek applied\nwith equal force in Robertson, so we affirmed the dismissal of\nthe plaintiff’s notice claim. Id.\n\fNos. 17-1310 & 17-1649 25\n\n The adverse-action claim, however, was a different mat-\nter. Recall that § 1681b(b)(3)(A) states that when an employer\nprocures a consumer report about an employee or job appli-\ncant, the employer must disclose a copy of the report to the\nemployee or applicant before taking any adverse action\nagainst him based on it either in whole or in part. In\nRobertson we held that this disclosure obligation protects the\nemployee’s (or applicant’s) interest in the information\nneeded to correct mistakes and respond to the employer’s\npotential concerns before the adverse action occurs, perhaps\naverting it altogether. Id. at 696–97. Testing the plaintiff’s\nclaim against that interest, we held that she suffered a\nconcrete injury because she “was denied information that\ncould have helped her craft a response to [the defendant’s]\nconcerns” about the content of her consumer report before\nthe defendant rescinded the job offer. Id. at 697.\n The question we confront here is whether subsec-\ntion (y)(2) is sufficiently similar to § 1681b(b)(3)(A) to require\nthe same outcome. The answer is no. Subsection (y)(2)\nrequires only that the employer disclose a “summary” of\n“the nature and substance” of a “communication” (i.e., a\nconsumer report) obtained from a third party in connection\nwith an investigation into employee misconduct. The sum-\nmary need not be in writing, and specificity is not required.\nFinally, the summary is required only after the employer\ntakes an adverse action, not before.\n A postdecision, summary-only disclosure obligation like\nthis one is a far cry from § 1681b(b)(3)(A), which (to repeat)\nrequires the employer to give an employee or job applicant a\ncomplete copy of the consumer report and a written explana-\ntion of his FCRA rights before taking any adverse action\nagainst the employee or job applicant. That robust disclosure\n\f26 Nos. 17-1310 & 17-1649\n\nrequirement, we held in Robertson, provides substantive\nprotection: it gives the employee or applicant important\ninformation at a time and in a form that allows him to\ncorrect errors and address the employer’s concerns before\nany adverse action is taken. And that, we said, brought the\ncase within the line of Supreme Court precedents dealing\nwith informational injuries. 902 F.3d at 694 (citing Fed.\nElection Comm’n v. Akins, 524 U.S. 11 (1998); Pub. Citizen v.\nU.S. Dep’t of Justice, 491 U.S. 440 (1989)).\n Subsection (y)(2), in contrast, performs a mere post hoc\nnotice function; it does little more. In that sense this case is\ncloser to Groshek than to Robertson. Indeed, the disclosure\nrequirement at issue in Groshek applies before the employer\nmay access an employee’s or job applicant’s consumer report\nand thus provides the entire basis for the statutory\ninformed-consent procedure. If anything, the disclosure\nrequirement in Groshek serves a far stronger notice purpose\nthan does subsection (y)(2), which operates entirely after the\nfact.\n And the post hoc summary required by subsection (y)(2)\nmay be quite generalized. It does not provide information at\na time or in a form that allows the employee to meaningfully\nrespond and possibly avert an adverse employment action.\nIf the employer’s failure to provide a compliant disclosure in\nGroshek was a bare procedural violation insufficient to confer\nstanding, then the plaintiffs here have likewise suffered a\nmere procedural violation unaccompanied by any concrete\ninjury.\n The plaintiffs insist that Allstate’s failure to comply with\nsubsection (y)(2) left them “hampered in defending them-\nselves before Allstate or potential employers.” But subsec-\n\fNos. 17-1310 & 17-1649 27\n\ntion (y)(2) doesn’t protect a substantive “defense” interest.\nAt most it serves a minimal notice function. And the plain-\ntiffs have not explained how the modest, post hoc summary\nrequired by subsection (y)—again, a brief oral summary\nsuffices—could possibly have informed a “defense” against\nAllstate after the fact. We note, moreover, that they failed to\nidentify any prospective employer that refused to hire them\nbased on the 10-K or the Greffin memo, so they have not\nestablished that they suffered a concrete informational\ninjury. Nor have they identified any other tangible or intan-\ngible harm arising from Allstate’s failure to comply.\n In short, the FCRA claim rests on a bare procedural viola-\ntion of subsection (y)(2) unaccompanied by any concrete and\nparticularized harm or risk of harm to an interest protected\nby the statute. The FCRA awards must be vacated and the\nclaim dismissed for lack of standing.\n Our ruling on the plaintiffs’ standing to sue under the\nFCRA has implications for the defamation awards. As we’ve\nexplained, the FCRA claim was the sole basis for federal\njurisdiction. The district court adjudicated the defamation\nclaim under the supplemental jurisdiction provision, which\nprovides:\n [I]n any civil action of which the district courts\n have original jurisdiction, the district courts\n shall have supplemental jurisdiction over all\n other claims that are so related to claims in the\n action within such original jurisdiction that\n they form part of the same case or controversy\n under Article III of the United States Constitu-\n tion.\n28 U.S.C. § 1367(a).\n\f28 Nos. 17-1310 & 17-1649\n\n By its plain terms, § 1367(a) “makes clear that supple-\nmental jurisdiction may only be invoked when the district\ncourt has a hook of original jurisdiction on which to hang it.”\nHerman Family Revocable Tr. v. Teddy Bear, 254 F.3d 802, 805\n(9th Cir. 2001). Because the plaintiffs lack Article III standing\nto bring the FCRA claim, there is no original jurisdictional\n“hook” to support an assertion of § 1367(a) supplemental\njurisdiction over the defamation claim, and the district court\nwas without power to hear it.\n [I]f the federal claim [is] dismissed for lack of\n subject matter jurisdiction, a district court has\n no discretion to retain the supplemental claims\n for adjudication. The dismissal means that\n there never was a valid claim within the court’s\n original jurisdiction to which the state claims\n may be supplemental. Therefore, the district\n court has no discretion to exceed the scope of\n its Article III power and must dismiss the state\n law claims without prejudice.\n16 JAMES WM. MOORE, MOORE’S FEDERAL PRACTICE § 106.66[1]\n(Daniel R. Coquillette et al. eds., 3d ed. 2018).\n In notable contrast, when the court dismisses the federal\nclaim on the merits, it has the discretion under § 1367(c)(3) to\ndecline to hear related state-law claims or to retain them,\nthough there is a general presumption that the court will\nrelinquish supplemental jurisdiction and dismiss the state-\nlaw claims without prejudice. RWJ Mgmt. Co. v. BP Prods. N.\nAm., Inc., 672 F.3d 476, 479–80 (7th Cir. 2012). But that’s not\nthis case. Here the plaintiffs failed to establish Article III\nstanding to bring the federal claim that supported the exer-\ncise of § 1367(a) jurisdiction. “[W]here there is no underlying\n\fNos. 17-1310 & 17-1649 29\n\noriginal federal subject matter jurisdiction, the court has no\nauthority to adjudicate supplemental claims under § 1367.”\nHerman Family Revocable Tr., 254 F.3d at 805; see also Textile\nProds., Inc. v. Mead Corp., 134 F.3d 1481, 1485–86 (Fed. Cir.\n1998); Saksenasingh v. Sec’y of Educ., 126 F.3d 347, 351 (D.C.\nCir. 1997); Musson Theatrical, Inc. v. Fed. Express Corp., 89 F.3d\n1244, 1255 (6th Cir. 1996); Nowak v. Ironworkers Local 6 Pen-\nsion Fund, 81 F.3d 1182, 1187 (2d Cir. 1996).\n We are not unmindful of the costs of a jurisdictional dis-\nmissal at this late stage, after a full trial on the merits and an\nappeal. Regrettably, the federal courts have sunk considera-\nble resources into resolving the parties’ dispute when the\ncase belonged in state court. But the jurisdictional defect\nleaves us with no choice. Accordingly, the judgment is\nvacated and the case is remanded with instructions to dis-\nmiss the entire action for lack of subject-matter jurisdiction.\nSee FED. R. CIV. P. 12(h)(3) (“If the court determines at any\ntime that it lacks subject-matter jurisdiction, the court must\ndismiss the action.”).\n VACATED AND REMANDED WITH INSTRUCTIONS.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4358617/", "author_raw": "Diane S. Sykes"}]}	KANNE	SYKES	DARROW	1		{"KANNE": ", Circuit", "SYKES": ", Circuit", "DARROW": ", District"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4581364/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Daniel Rivera v. Allstate Insurance Company\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-14\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNos. 17-1310 & 17-1649\nDANIEL RIVERA, et al.,\n Plaintiffs-Appellees.\n v.\n\nALLSTATE INSURANCE COMPANY,\n Defendant-Appellant.\n ____________________\n\n Appeals from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 10 C 1733 — William T. Hart, Judge.\n ____________________\n\n ARGUED OCTOBER 25, 2017 — DECIDED OCTOBER 31, 2018\n AS AMENDED ON PETITION FOR REHEARING JANUARY 14, 2019\n ____________________\n\n Before KANNE and SYKES, Circuit Judges, and DARROW,\nDistrict Judge. \n SYKES, Circuit Judge. In 2009 Allstate Insurance Company\nlaunched an internal investigation into suspicious trading on\nits equity desk. The initial inquiry unearthed email evidence\nsuggesting that several portfolio managers might be timing\n\n Of the Central District of Illinois, sitting by designation.\n\f2 Nos. 17-1310 & 17-1649\n\ntrades to inflate their bonuses at the expense of their portfo-\nlios, which included two pension funds to which Allstate\nowed fiduciary duties. Allstate retained attorneys from\nSteptoe & Johnson to investigate further, and they in turn\nhired an economic consulting firm to calculate potential\nlosses. Based on the email evidence, the consulting firm\nfound reason to believe that timed trading had potentially\ncost the portfolios $8 million and possibly much more.\nBecause actual losses could not be established, the consult-\nants used an algorithm to estimate a potential adverse\nimpact of $91 million on the pension funds. Everyone under-\nstood that this estimate was wildly unrealistic, but in an\nabundance of caution, Allstate poured $91 million into the\npension portfolios.\n When the investigation wrapped up, Steptoe lawyers de-\nlivered oral findings to Allstate. The company thereafter\ndetermined that four portfolio managers—Daniel Rivera,\nStephen Kensinger, Deborah Meacock, and Rebecca\nScheuneman—had violated the company’s conflict-of-\ninterest policy by timing trades to improve their bonuses. On\nDecember 3, 2009, Allstate fired them for cause.\n On February 25, 2010, Allstate filed its annual Form 10-K\nfor 2009. The report explained that: (1) in 2009 the company\nhad received information about possible timed trading and\nretained counsel to investigate; (2) counsel hired an econom-\nic consulting firm to estimate the potential impact on the\nportfolios; and (3) based on this outside investigation,\nAllstate paid $91 million into the two pension funds to cover\nthe potential adverse impact. That same day Allstate sent a\nmemo to employees in its Investment Department describ-\ning the information disclosed in the 10-K. Neither document\nmentioned the four fired portfolio managers.\n\fNos. 17-1310 & 17-1649 3\n\n Three weeks later the four former employees sued All-\nstate in federal court for defamation based on the 10-K and\nthe internal memo. They also alleged that Allstate violated\n15 U.S.C. § 1681a(y)(2), a provision in the Fair Credit Report-\ning Act (“FCRA or the Act”), by failing to give them a sum-\nmary of Steptoe’s findings after they were fired. The\ndefamation claim was the main event in the litigation; the\nFCRA claim received comparatively little attention. A jury\nreturned a verdict in the plaintiffs’ favor, awarding more\nthan $27 million in compensatory and punitive damages,\nand statutory damages on the FCRA claim (there are no\nactual damages on that claim). The district judge tacked on\nadditional punitive damages and attorney’s fees under the\nFCRA.\n Allstate attacks the defamation awards on multiple\ngrounds and also argues that the FCRA awards must be\nvacated for lack of standing under Spokeo, Inc. v. Robbins,\n136 S. Ct. 1540 (2016). We agree that the plaintiffs lack a\nconcrete injury to support Article III standing on the FCRA\nclaim. So that claim must be dismissed on jurisdictional\ngrounds. And that ends our review. Because the FCRA claim\nprovided the sole basis for federal jurisdiction—and thus the\nonly basis for the district court to exercise supplemental\njurisdiction over the state-law claim under 28 U.S.C.\n§ 1367(a)—the district court was without power to adjudi-\ncate the defamation claim, and it too must be dismissed for\nlack of jurisdiction. The parties did not identify the § 1367(a)\njurisdictional problem in their initial briefing, but that does\nnot matter; defects in subject-matter jurisdiction must al-\nways be addressed. Accordingly, we vacate the judgment\nand remand with instructions to dismiss the action in its\n\f4 Nos. 17-1310 & 17-1649\n\nentirety for lack of subject-matter jurisdiction. See FED. R.\nCIV. P. 12(h)(3).\n I. Background\n Plaintiffs Rivera, Kensinger, Meacock, and Scheuneman\nwere employed as securities analysts in the Equity Division\nof Allstate’s Investment Department. Rivera was the Division\ndirector, and Kensinger, Meacock, and Scheuneman were\nanalysts on the growth team. During their time with the\ncompany, the Equity Division managed and invested\n$10 billion in assets on behalf of various funds, including\ntwo defined-benefit pension plans. Because the plaintiffs\nhelped manage two pension portfolios, they occupied posi-\ntions of trust and owed a duty of loyalty to plan beneficiaries\nunder the Employee Retirement Income Security Act. See\n29 U.S.C. § 1104(a)(1). They were also bound by Allstate’s\ncode of ethics, which required them to avoid conflicts of\ninterest.\n In addition to their salaries, the plaintiffs were eligible to\nreceive bonus compensation under Allstate’s “pay-for-\nperformance” plan. The plan relied on a formula called the\n“Dietz method” to estimate portfolio returns and evaluate\nperformance accordingly. The Dietz method assumes that all\ncash flows in a portfolio occur at the same time of day; high\ntransaction volume makes it impractical to use actual trade\ntimes. The particular formula in use at Allstate assumed all\ncash flows occurred at midday.\n While practical, Allstate’s formula had two drawbacks.\nFirst, it distorted a portfolio’s actual performance, both\npositive and negative. The midday Dietz method inflated\nmeasured performance for sales on up days and buys on\ndown days; conversely, it understated measured perfor-\n\fNos. 17-1310 & 17-1649 5\n\nmance when sales were made on down days and buys on up\ndays. Allstate’s traders referred to this discrepancy as the\n“Dietz effect.”\n Second, the formula could be manipulated. Because it as-\nsumed that all cash flows occurred midday, portfolio man-\nagers could wait until the end of day to calculate the Dietz\neffect before deciding to execute a trade. The system conse-\nquently rewarded portfolio managers who waited to make\ntrades even if the portfolio suffered as a result. Moreover,\nAllstate’s bonus structure measured performance relative to\na daily benchmark; it didn’t consider market movement in\nthe preceding days. This feature also pitted the interests of\nthe manager against those of the portfolio. A manager could\nimprove his performance by delaying a sale over several\ndown days before selling on an up day even if the portfolio\nwould have been better off if he sold earlier. In sum, under\nAllstate’s pay-for-performance plan, portfolio managers\ncould boost their bonus pay by timing trades—potentially at\nthe expense of their portfolios.\n In mid-2009 Allstate received troubling information that\nits portfolio managers were doing just that. Peter Hecht, a\nmember of Allstate’s Performance Management Group,\nreported to Chief Compliance Officer Trond Odegaard that\nmembers of the Equity Division were delaying trades to\nmaximize their bonuses at the expense of their portfolios.\nOdegaard passed these concerns along to Chief Investment\nOfficer Judy Greffin, who ordered him to investigate.\n Odegaard and a team of Allstate employees soon discov-\nered signs of timed trading. The team noted several trading\npatterns that suggested portfolio managers had delayed\ntrades to take advantage of the Dietz effect. The investiga-\n\f6 Nos. 17-1310 & 17-1649\n\ntion also uncovered emails suggesting that the managers\nwere aware of the Dietz effect and actively considered it\nwhen trading. Though not conclusive, the investigation\nraised concerns that personnel in the Equity Division had\ntimed trades to increase bonuses at the expense of their\nportfolios; as a result, Allstate may have reported inaccurate\nfinancial information to the public.\n Allstate accordingly retained the law firm Steptoe &\nJohnson to investigate further. Steptoe attorneys interviewed\nRivera and Scheuneman regarding their trading practices\nand hired NERA Economic Consulting, Inc., an independent\neconomic consulting firm, to determine if timed trading had\nharmed the portfolios, especially the pension funds. Begin-\nning with the trades mentioned in the suspicious emails and\neventually reviewing six years of trading data, NERA pre-\nliminarily estimated a potential adverse portfolio impact of\n$8.2 million.\n But NERA had reason to believe that the actual impact\nmay be much higher. Several suspicious emails could not be\ntied to particular trades, and other evidence suggested that\nportfolio managers routinely considered Dietz in the course\nof trading. Based on Allstate’s records, however, it was not\npossible to calculate actual losses with any precision. So\nNERA devised an algorithm that would capture every Dietz-\nfavorable trade from June 2003 to May 2009 that was execut-\ned after a series of days where the Dietz effect would have\nharmed the trader’s performance. Based on these parame-\nters, NERA estimated that over the six years surveyed, the\npotential adverse impact on the pension plans was\n$91 million and the potential adverse impact on the compa-\nny’s other portfolios was $116 million. It was clear to every-\none that these estimates vastly overstated the potential effect\n\fNos. 17-1310 & 17-1649 7\n\nof timed trading. Erring on the side of caution, however, in\nmid-December Allstate paid $91 million into the two pension\nplans to compensate for any potential losses.\n While the investigation was ongoing, Allstate disbanded\nthe Equity Division and outsourced its work to Goldman\nSachs. On October 6, 2009, Greffin met first with Rivera and\nthen the rest of the division and explained that every mem-\nber, save those who managed convertible portfolios, would\nbe let go effective December 31, 2009. The laid-off employees\nwould, however, receive severance pay. Later that day\nSteptoe attorneys conducted off-site interviews with Equity\nDivision managers concerning Dietz trading.\n The outside investigation soon wrapped up, and Steptoe\nattorneys orally reported the findings to Allstate. Based on\nthe internal and external investigations, Allstate concluded\nthat Rivera, Meacock, Scheuneman, and Kensinger had\nviolated the company’s conflict-of-interest policy by timing\ntrades. On December 3, 2009, Brett Winchell, the Director of\nHuman Resources, informed each of the four analysts that\nthey were fired for cause effective immediately. Winchell\ndelivered the bad news by reading from a short script that\nreminded the four managers of the investigation into timed\ntrading, noted that each of them had been interviewed by\noutside counsel, and explained that they were being fired\nbecause they violated Allstate’s conflict-of-interest policy. All\nfour asked Winchell for additional explanation; they later\nasked the same questions in writing. No further explanation,\noral or written, was forthcoming. Allstate immediately\nescorted them off the premises and disconnected their phone\nand email service the next day.\n\f8 Nos. 17-1310 & 17-1649\n\n On December 16 Steptoe attorneys met with regulators in\nthe Department of Labor’s Employee Benefits Security\nAdministration to discuss the investigation as it related to\nthe pension funds. At the Department’s request, Steptoe sent\na follow-up letter summarizing the allegations of timed\ntrading and the subsequent investigation. The letter—dated\nJanuary 29, 2010—advised the Department that the employ-\nees in Allstate’s Equity Division had denied that they im-\nproperly delayed trades but that several emails “could\nsupport a contrary conclusion.” The letter further explained\nthat NERA’s algorithm “estimate[d] potential disadvantage\nto the plans” but that “there is little question that the algo-\nrithm overstate[d] any disadvantages that the plans might\nhave suffered.” Finally, the letter explained that “taking into\naccount returns recalculated by NERA,” the estimated\n“increase in the aggregate bonuses for the entire group” was\n“approximately $1.2 million.”\n Fast-forward to October 14, 2010. On that day Allstate’s\nin-house counsel sent another letter to the Labor Department\nclarifying that the $1.2 million figure “roughly approxi-\nmate[d] the potential increase in bonuses, … assum[ing] the\nalgorithm used by NERA … reflected actual trading activi-\nty.” This letter emphasized that NERA’s calculations estimat-\ned “a possible maximum impact” and explained that “[n]o\none believed, then or now, that this was an accurate descrip-\ntion of the activity on the equity desk, nor that any actual\nimpact on the portfolios was anywhere near the result\nproduced by using the NERA algorithm.” The October letter\nalso stated that if the analysis had been limited to the trades\nmentioned in the suspicious emails, “there would have been\nvirtually no effect on bonuses.”\n\fNos. 17-1310 & 17-1649 9\n\n Returning now to our chronology, on February 25, 2010,\nAllstate filed its annual 10-K report for 2009 in which it\ndisclosed the allegations of timed trades and explained in\ngeneral terms the subsequent investigation and the compa-\nny’s decision to reimburse the two pension plans. As rele-\nvant here, the 10-K stated:\n In 2009, we became aware of allegations\n that some employees responsible for trading\n equity securities in certain portfolios of two\n [Allstate Insurance Company] defined benefit\n pension plans and certain portfolios of [All-\n state Insurance Company] and an [Allstate In-\n surance Company] subsidiary may have timed\n the execution of certain trades in order to en-\n hance their individual performance under in-\n centive compensation plans, without regard to\n whether such timing adversely impacted the\n actual investment performance of the portfoli-\n os.\n We retained outside counsel, who in turn\n engaged an independent economic consulting\n firm to conduct a review and assist us in un-\n derstanding the facts surrounding, and the po-\n tential implications of, the alleged timing of\n these trades for the period from June 2003 to\n May 2009. The consulting firm reported that it\n was unable to determine from our records the\n precise amounts by which portfolio perfor-\n mance might have been adversely impacted\n during that period. Accordingly, the economic\n consultant applied economic modeling tech-\n niques and assumptions reasonably designed\n\f10 Nos. 17-1310 & 17-1649\n\n to estimate the potential adverse impact on the\n pension plans and the company accounts, tak-\n ing into account, among other things, the dis-\n tinctions between the pension plans and the\n company portfolios.\n Based on their work, the economic consult-\n ants estimated that the performance of the\n pension plans’ portfolios could have been ad-\n versely impacted by approximately $91 million\n (including interest) and that the performance\n of the company portfolios could have been ad-\n versely impacted by approximately $116 mil-\n lion (including interest) in the aggregate over\n the six-year period under review. We believe\n that our financial statements and those for the\n pension plans properly reflected the portfolios’\n actual investment performance results during\n the entire period that was reviewed.\n In December 2009, based on the economic\n consultant’s modeled estimates, we paid an ag-\n gregate of $91 million into the two defined\n benefit pension plans. These payments had no\n material impact on our reported earnings or\n shareholders’ equity, but reduced our assets,\n operating cash flows, and unfunded pension\n liability to the plans. … At all times during this\n period, the plans were adequately funded pur-\n suant to applicable regulatory and actuarial re-\n quirements. As a result of these additional\n funds in the plans, our future contributions to\n the plans, based on actuarial analysis, may be\n reduced. Using the economic consultant’s cal-\n\fNos. 17-1310 & 17-1649 11\n\n culation of the potential adverse impact on the\n portfolios, we currently estimate that the addi-\n tional compensation paid to all the employees\n working in the affected group was approxi-\n mately $1.2 million over the six-year period as\n a result of these activities. In late 2009, we re-\n tained an independent investment firm to con-\n duct portfolio management and trading\n activity for the specific portfolios impacted by\n these activities.\n That same day Greffin sent a memo to all employees in\nthe Investment Department alerting them to the information\nin the 10-K filing. In full, the Greffin memo states:\n Allstate released its annual financial report\n on Form 10–K today. Within that filing, we dis-\n closed details around allegations regarding\n trading practices within our equity portfolios\n that came to light in the past year. We took this\n matter very seriously and launched an investi-\n gation as soon as we became aware of the alle-\n gations.\n Outside counsel was retained to assist us in\n understanding the facts surrounding, and the\n potential implications of, these activities. As\n part of their analysis, an independent econom-\n ic consulting firm was retained to estimate the\n potential adverse impact to the performance of\n our portfolios. The consultant determined that\n the performance on some of our portfolios, as\n well as our two pension plan portfolios, could\n have been adversely impacted by the activities.\n\f12 Nos. 17-1310 & 17-1649\n\n As a result, Allstate made a contribution to the\n pension plans during the 4th quarter which is\n disclosed in the 10–K.\n We believe that our financial statements\n and those of the pension plans properly re-\n flected the portfolios’ actual investment per-\n formance and the pension plans were\n adequately funded during this entire period.\n This matter did not affect the plans’ ability to\n continue to provide benefits to plan partici-\n pants.\n Situations like this can be unsettling and\n can reflect poorly on our organization. Howev-\n er, I believe organizations are also defined by\n how they respond to events like this. We were\n transparent in reporting this matter to the\n U.S. Department of Labor and the S.E.C., and\n disclosed it to our investors. We’re taking steps\n to improve our governance, compliance prac-\n tices and training.\n We remain committed to the highest levels\n of ethics and integrity in the stewardship\n of Allstate’s assets.\n Three weeks later the four fired portfolio managers sued\nAllstate and Greffin in federal court for defamation based on\nthe 10-K and Greffin’s internal memo. They also asserted a\nclaim against Allstate for violation of § 1681a(y)(2) of the\nFCRA and a claim against Greffin for tortious interference\nwith prospective economic advantage. The district judge\ndismissed the tortious-interference claim, and the plaintiffs\nthen amended their complaint to add an age-discrimination\n\fNos. 17-1310 & 17-1649 13\n\nclaim against Allstate. They later dismissed the discrimina-\ntion claim as well as the defamation claim against Greffin.\n Lengthy discovery ensued and in due course Allstate\nmoved for summary judgment. Judge Feinerman ruled that\nthe statements in the 10-K and the Greffin memo were not\ndefamatory per se. Rivera v. Allstate Ins. Co., 140 F. Supp. 3d\n722, 729–30 (N.D. Ill. 2015). But he permitted the case to go\nforward on a theory of defamation per quod and on the\nFCRA claim. Id. at 730–37.\n As narrowed, the case proceeded to a jury trial with\nJudge Hart presiding. The jury found for the plaintiffs across\nthe board and awarded more than $27 million in compensa-\ntory and punitive damages, broken down roughly as fol-\nlows:\n Rivera:\n $7.1 million (defamation compensatory damages)\n $4 million (defamation punitive damages)\n $1,000 (FCRA statutory damages)\n Kensinger:\n $2.9 million (defamation compensatory damages)\n $2 million (defamation punitive damages)\n $1,000 (FCRA statutory damages)\n Meacock:\n $3.6 million (defamation compensatory damages)\n $3 million (defamation punitive damages)\n $1,000 (FCRA statutory damages)\n\f14 Nos. 17-1310 & 17-1649\n\n Scheuneman:\n $3.4 million (defamation compensatory damages)\n $1 million (defamation punitive damages)\n $1,000 (FCRA statutory damages)\n Allstate moved for judgment as a matter of law, or alter-\nnatively, for a new trial. The plaintiffs separately asked the\njudge for an award of punitive damages and attorney’s fees\nunder the FCRA. 15 U.S.C. § 1681n(a)(2), (3) (authorizing\n“such amount of punitive damages as the court may allow”\nand attorney’s fees for willful violations of the FCRA).\n Judge Hart denied Allstate’s motion and granted the\nplaintiffs’ requests, awarding each plaintiff an additional\n$3,000 in punitive damages under the FCRA and approving\ntheir request for $357,716.25 in attorney’s fees associated\nwith the statutory claim.\n II. Discussion\n Allstate attacks this large judgment on many grounds. In\nbrief, the company argues that the defamation awards must\nbe set aside because: (1) the statements in the 10-K and the\nGreffin memo were substantially true; (2) neither the 10-K\nnor the Greffin memo identified the plaintiffs, and no evi-\ndence supports a finding that these documents could be\nreasonably understood to refer to them; (3) the statements in\nthe 10-K and the Greffin memo were privileged; and (4) the\nplaintiffs failed to prove special damages as required for\nrecovery for defamation per quod. Regarding the FCRA\nawards, Allstate argues that the plaintiffs lack standing\nunder Spokeo, and secondarily, that the record does not\nsupport the jury’s finding of a willful violation of the statute\nas required for statutory and punitive damages. (There are\n\fNos. 17-1310 & 17-1649 15\n\nno actual damages.) Finally, Allstate attacks the award of\nFCRA attorney’s fees as excessive and disproportionate\nconsidering the relative insignificance of the statutory claim\nto this litigation.\n The state-law defamation claim predominated over the\nfederal claim in this long-running litigation—both in the\ndistrict court and here. The FCRA claim occupied very little\nof the parties’ appellate briefing and received only modest\nattention below. Our initial opinion vacated the defamation\nawards based on the plaintiffs’ failure to prove special\ndamages. We also vacated the FCRA awards for lack of\nstanding under Spokeo and remanded with instructions to\ndismiss the federal claim for lack of jurisdiction.\n The plaintiffs petitioned for rehearing, raising for the first\ntime a probable jurisdictional defect under § 1367 if we\nfound—as we did—that they failed to establish an injury in\nfact sufficient to support Article III standing to litigate the\nFCRA claim. The petition noted that the FCRA claim pro-\nvided the only jurisdictional basis for litigating this entire\ndispute in federal court. The district court’s jurisdiction\nrested solely on federal-question jurisdiction, see 28 U.S.C.\n§ 1331; the parties are not diverse, so 28 U.S.C. § 1332 does\nnot apply. And the court’s supplemental jurisdiction under\n§ 1367(a) to adjudicate the state-law defamation claim evap-\norates if the claim on which federal jurisdiction rests is\ndismissed on jurisdictional grounds.\n We accordingly withdraw our original opinion and in its\nplace substitute this amended opinion. Although the parties\nspent most of their energy on the merits of the defamation\nclaim, our analysis begins and ends with the jurisdictional\nbasis for the FCRA claim.\n\f16 Nos. 17-1310 & 17-1649\n\n Relying on Spokeo, Allstate maintains that the FCRA\nawards must be tossed out for lack of standing. A bit of\nstatutory background is required to understand the FCRA\nclaim in this case. We note for starters that the case repre-\nsents an odd application of the Act. The FCRA regulates the\nactivities of consumer reporting agencies and the permissi-\nble uses of consumer reports by third parties. Among many\nother regulatory requirements, the Act imposes certain\nprocedures for the use of consumer reports for employment\npurposes.\n For example, the Act prohibits an employer from procur-\ning a consumer report about an employee or job applicant\nwithout first giving that person a stand-alone written notice\nthat “clear[ly] and conspicuous[ly]” discloses the employer’s\nrequest for permission to access the report and the person\nsigns a written consent to release the report to the employer.\nSee 15 U.S.C. § 1681b(b)(2)(A) (establishing the disclosure\nand consent requirements); see id. § 1681a(d)(1) (defining\n“consumer report” to include reports about a consumer’s\ncreditworthiness and personal background compiled by a\n“consumer reporting agency” and “used or expected to be\nused … for the purpose of serving as a factor in establishing\nthe consumer’s eligibility for” credit, insurance, or “em-\nployment purposes”).\n The Act further requires that before taking any adverse\naction against an employee or job applicant “based in whole\nor in part” on such a report, the employer must give the\nemployee or applicant a copy of the report and a written\ndescription of the person’s rights under the Act. Id.\n§ 1681b(b)(3)(A).\n\fNos. 17-1310 & 17-1649 17\n\n The FCRA provision at issue here appears in § 1681a,\nwhich contains the Act’s definitions and rules of construc-\ntion. (The statutory scheme is reticulated and complex, so\nbear with us.) Subsection (d)(2)(D) of § 1681a excludes from\nthe definition of “consumer report” any “communication\ndescribed in subsection (o) or (x).” The reference to “subsec-\ntion (x)” is an error; it should read “subsection (y).” The\nerror was introduced in the Dodd–Frank Act of 2010, 1 which\nredesignated the former subsection (x) as subsection (y) but\nneglected to update the cross-reference in § 1681a(d)(2)(D).\nSee Pub. L. No. 111-203, § 1988(a)(1)(A), 124 Stat. 1376, 2086.\n Subsection (y), the cross-referenced provision, was enact-\ned as part of the Fair and Accurate Credit Transactions Act\nof 2003, Pub. L. No. 108-159, § 611, 117 Stat. 1952, 2010. It\nreads in pertinent part:\n (1) Communications described in this subsec-\n tion\n A communication is described in this subsec-\n tion if–\n (A) but for subsection (d)(2)(D), the com-\n munication would be a consumer report;\n (B) the communication is made to an em-\n ployer in connection with an investigation of—\n (i) suspected misconduct relating to\n employment; or\n\n\n\n1 Technically, the Dodd–Frank Wall Street Reform and Consumer\nProtection Act of 2010.\n\f18 Nos. 17-1310 & 17-1649\n\n (ii) compliance with Federal, State, or\n local laws and regulations, the rules of a\n self-regulatory organization, or any preex-\n isting written policies of the employer;\n (C) the communication is not made for the\n purpose of investigating a consumer’s credit\n worthiness, credit standing, or credit capacity;\n and\n (D) the communication is not provided to\n any person except–\n (i) to the employer or an agent of the\n employer;\n (ii) to any Federal or State officer, agen-\n cy, or department, or any officer, agency, or\n department of a unit of general local gov-\n ernment;\n (iii) to any self-regulatory organization\n with regulatory authority over the activities\n of the employer or employee;\n (iv) as otherwise required by law; or\n (v) pursuant to section 1681f of this title.\n (2) Subsequent disclosure\n After taking any adverse action based in whole\n or in part on a communication described in\n paragraph (1), the employer shall disclose to the\n consumer a summary containing the nature and\n substance of the communication upon which the\n adverse action is based, except that the sources of\n information acquired solely for use in prepar-\n\fNos. 17-1310 & 17-1649 19\n\n ing what would be but for subsection (d)(2)(D)\n an investigative consumer report need not be\n disclosed.\n15 U.S.C. § 1681a(y) (emphasis added).\n So in sum, and to radically simplify: By operation of the\ncross-reference in subsection (d)(2)(D) of § 1681a (and adjust-\ning for the Dodd–Frank mistake), the effect of subsection (y)\nis to exclude from the definition of “consumer report”—and\nthus from the myriad regulatory requirements applicable to\nconsumer reports—any communication that:\n (1) otherwise qualifies as a consumer report (but for sub-\n section (d)(2)(D));\n (2) was made to an employer in connection with an in-\n vestigation of employee misconduct;\n (3) was not made to the employer for purposes of inves-\n tigating an employee’s creditworthiness; and\n (4) is not disclosed to anyone other than the employer, a\n regulatory agency or authority, or as otherwise required\n by law.\n And although § 1681a simply defines statutory terms and\nrules of construction, subsection (y) goes on to say that\n“[a]fter taking any adverse action based in whole or in part\non” a communication of this type, the employer “shall\ndisclose to the consumer a summary containing the nature\nand substance” of the communication. Id. § 1681a(y)(2).\n Needless to say, this is an odd place to find a regulatory\nmandate on employer investigations into workplace mis-\nconduct. Indeed, the provision is so obscure that in its\n15-year existence, subsection (y)(2) of § 1681a appears in no\n\f20 Nos. 17-1310 & 17-1649\n\npublished opinion save the district court’s decision in this\ncase.\n Still, taking § 1681a(y)(2) at face value, we understand it\nto mean that when an employer procures what would other-\nwise qualify as a consumer report in connection with an inves-\ntigation into employee misconduct, the report is not\nconsidered a consumer report under the Act and thus is not\nsubject to either § 1681b(b)(2)(A) (requiring the employer to\ngive a stand-alone written notice and obtain written consent\nbefore procuring the report) or § 1681b(b)(3)(A) (requiring\nthe employer to give the employee or job applicant a copy of\nthe report and a description of his FCRA rights before taking\nan adverse action based on it). Instead, the employer need\nonly provide a summary—an oral summary apparently\nsuffices (subsection (y)(2) does not require anything in\nwriting)—and then only after taking an adverse action based\nin whole or in part on the report.\n The FCRA claim in this case rests on the premise that\nAllstate was required under subsection (y)(2) to provide a\nsummary of Steptoe’s investigation after firing the plaintiffs\nbut failed to do so. It’s not at all clear, though, that the\nSteptoe investigation would otherwise qualify as a “con-\nsumer report” but for the subsection (d)(2)(D) exclusion.\nAnd if the Steptoe investigation isn’t a “consumer report” in\nthe first place, then subsection (y)(2) does not come into play\nand the FCRA simply does not apply.\n Here is the Act’s full definition of the term “consumer\nreport”:\n The term “consumer report” means any\n written, oral, or other communication of any\n information by a consumer reporting agency bear-\n\fNos. 17-1310 & 17-1649 21\n\n ing on a consumer’s credit worthiness, credit\n standing, credit capacity, character, general\n reputation, personal characteristics, or mode of\n living which is used or expected to be used or\n collected in whole or in part for the purpose of\n serving as a factor in establishing the consum-\n er’s eligibility for—\n (A) credit or insurance to be used primarily\n for personal, family, or household purposes;\n (B) employment purposes; or\n (C) any other purpose authorized under\n section 1681b of this title.\n§ 1681a(d)(1) (emphasis added).\n The Steptoe investigation thus cannot be a “consumer\nreport” unless Steptoe qualifies under the Act as a “consum-\ner reporting agency.” Here, in turn, is how the Act defines a\n“consumer reporting agency”:\n The term “consumer reporting agency”\n means any person which, for monetary fees,\n dues, or on a cooperative nonprofit basis, regu-\n larly engages in whole or in part in the practice\n of assembling or evaluating consumer credit\n information or other information on consumers\n for the purpose of furnishing consumer reports\n to third parties, and which uses any means or\n facility of interstate commerce for the purpose\n of preparing or furnishing consumer reports.\n15 U.S.C. § 1681a(f).\n\f22 Nos. 17-1310 & 17-1649\n\n Steptoe & Johnson is a law firm. Nothing in the record\nsuggests that it “regularly engages” in “assembling or\nevaluating consumer credit information” or “furnishing\nconsumer reports to third parties.” The parties have not\nexplained how Steptoe qualifies as a consumer reporting\nagency or how its investigation into timed trading at Allstate\nqualifies as a consumer report. That’s probably because\nAllstate never disputed these points, choosing instead to\ncontest the FCRA claim on other grounds.\n As we explain in a moment, the plaintiffs’ FCRA awards\nmust be vacated on jurisdictional grounds based on the lack\nof any concrete injury to support Article III standing to sue.\nThis opinion should not be construed as endorsing the\nposition that a law-firm investigation of this type qualifies as\na consumer report within the meaning of the Act or that\nsubsection (y)(2) applies in a like situation.\n With that reservation out of the way, we move to the\nquestion of the plaintiffs’ standing. In Spokeo the Supreme\nCourt reinforced the principle that the “injury in fact”\nelement of Article III standing requires an injury that is both\n“concrete and particularized,” and that to be “concrete,” the\ninjury must be “real” and “not abstract”—“that is, it must\nactually exist.” 136 S. Ct. at 1548. The injury need not be\ntangible; Congress may identify intangible harms and author-\nize litigants to seek their redress in court. Id. at 1549. But a\nplaintiff does not “automatically satisf[y] the injury-in-fact\nrequirement whenever a statute grants a person a statutory\nright and purports to authorize that person to sue to vindi-\ncate that right.” Id.\n In Spokeo the plaintiff filed a proposed class action alleg-\ning violations of the FCRA—specifically, several provisions\n\fNos. 17-1310 & 17-1649 23\n\nimposing procedural requirements on consumer reporting\nagencies. Id. at 1545–46. The Court explained that a plaintiff\n“cannot satisfy the demands of Article III by alleging a bare\nprocedural violation” of the Act because “[a] violation of one\nof the FCRA’s procedural requirements may result in no\nharm.” Id. at 1550. The Court said that “a bare procedural\nviolation [of the Act], divorced from any concrete harm,” is\nnot an injury in fact sufficient to confer standing to sue. Id. at\n1549. On the other hand, the Court observed that some\nstatutory violations present a risk of real harm to a litigant\nand that “a plaintiff in such a case need not allege any\nadditional harm beyond the one Congress has identified.” Id.\n So standing questions in cases of this type sometimes re-\nquire us to identify the particular interest Congress sought\nto protect and to determine if the plaintiff has suffered a\nconcrete injury to that interest. Our recent decisions in\nGroshek v. Time Warner Cable, Inc., 865 F.3d 884 (7th Cir.\n2017), and Robertson v. Allied Solutions, LLC, 902 F.3d 690 (7th\nCir. 2018), are illustrative.\n The plaintiff in Groshek signed a form authorizing a pro-\nspective employer to obtain a consumer report about him in\nconnection with his job application; he alleged that the\ndisclosure form was not a stand-alone document as required\nby § 1681b(b)(2)(A). 865 F.3d at 885–86. Applying Spokeo, we\nheld that this claim rested on “a statutory violation com-\npletely removed from any concrete harm or appreciable risk\nof harm.” Id. at 887. We explained that the requirement of a\nstand-alone disclosure “does not seek to protect [the plain-\ntiff] from the kind of harm he claims he has suffered, i.e.,\nreceipt of a non-compliant disclosure.” Id. at 888. That is,\n“Congress did not enact § 1681b(b)(2)(A)(i) to protect job\napplicants from disclosures that do not satisfy the require-\n\f24 Nos. 17-1310 & 17-1649\n\nments of that section; it did so to decrease the risk that a job\napplicant would unknowingly consent to allowing a pro-\nspective employer to procure a consumer report.” Id. Be-\ncause the plaintiff acknowledged that he read and signed the\nemployer’s disclosure form, he had not suffered an injury to\nany interest protected by the Act. Id. at 888–89.\n In Robertson the plaintiff applied for a job with the de-\nfendant, and the defendant procured a background check in\nthe process of considering her application. The background\ncheck qualified as a consumer report under the FCRA, and\nthe employer asked the plaintiff to sign a consent form\ngiving it permission to obtain the report. She did so. The\nemployer initially offered her a job but then rescinded the\noffer when the background check turned up negative infor-\nmation. 902 F.3d at 693–94. She sued for two FCRA viola-\ntions: (1) the employer violated § 1681b(b)(2)(A) because the\nconsent form was not a stand-alone document and did not\ncontain “clear and conspicuous” disclosures, and (2) the\nemployer violated § 1681b(b)(3)(A) by failing to give her a\ncopy of the report before rescinding the job offer. Id. at 693.\nWe referred to the first claim as a “notice claim” and the\nsecond as an “adverse-action claim.” Id.\n The district court dismissed the entire case for lack of\nstanding, and we affirmed in part and reversed in part. The\nfirst claim, we said, was squarely controlled by our decision\nin Groshek, which held that “an injury functionally indistin-\nguishable from the one underpinning [the plaintiff’s] notice\nclaim was not concrete and did not confer standing.”\nRobertson, 902 F.3d at 694. Our conclusion in Groshek applied\nwith equal force in Robertson, so we affirmed the dismissal of\nthe plaintiff’s notice claim. Id.\n\fNos. 17-1310 & 17-1649 25\n\n The adverse-action claim, however, was a different mat-\nter. Recall that § 1681b(b)(3)(A) states that when an employer\nprocures a consumer report about an employee or job appli-\ncant, the employer must disclose a copy of the report to the\nemployee or applicant before taking any adverse action\nagainst him based on it either in whole or in part. In\nRobertson we held that this disclosure obligation protects the\nemployee’s (or applicant’s) interest in the information\nneeded to correct mistakes and respond to the employer’s\npotential concerns before the adverse action occurs, perhaps\naverting it altogether. Id. at 696–97. Testing the plaintiff’s\nclaim against that interest, we held that she suffered a\nconcrete injury because she “was denied information that\ncould have helped her craft a response to [the defendant’s]\nconcerns” about the content of her consumer report before\nthe defendant rescinded the job offer. Id. at 697.\n The question we confront here is whether subsec-\ntion (y)(2) is sufficiently similar to § 1681b(b)(3)(A) to require\nthe same outcome. The answer is no. Subsection (y)(2)\nrequires only that the employer disclose a “summary” of\n“the nature and substance” of a “communication” (i.e., a\nconsumer report) obtained from a third party in connection\nwith an investigation into employee misconduct. The sum-\nmary need not be in writing, and specificity is not required.\nFinally, the summary is required only after the employer\ntakes an adverse action, not before.\n A postdecision, summary-only disclosure obligation like\nthis one is a far cry from § 1681b(b)(3)(A), which (to repeat)\nrequires the employer to give an employee or job applicant a\ncomplete copy of the consumer report and a written explana-\ntion of his FCRA rights before taking any adverse action\nagainst the employee or job applicant. That robust disclosure\n\f26 Nos. 17-1310 & 17-1649\n\nrequirement, we held in Robertson, provides substantive\nprotection: it gives the employee or applicant important\ninformation at a time and in a form that allows him to\ncorrect errors and address the employer’s concerns before\nany adverse action is taken. And that, we said, brought the\ncase within the line of Supreme Court precedents dealing\nwith informational injuries. 902 F.3d at 694 (citing Fed.\nElection Comm’n v. Akins, 524 U.S. 11 (1998); Pub. Citizen v.\nU.S. Dep’t of Justice, 491 U.S. 440 (1989)).\n Subsection (y)(2), in contrast, performs a mere post hoc\nnotice function; it does little more. In that sense this case is\ncloser to Groshek than to Robertson. Indeed, the disclosure\nrequirement at issue in Groshek applies before the employer\nmay access an employee’s or job applicant’s consumer report\nand thus provides the entire basis for the statutory\ninformed-consent procedure. If anything, the disclosure\nrequirement in Groshek serves a far stronger notice purpose\nthan does subsection (y)(2), which operates entirely after the\nfact.\n And the post hoc summary required by subsection (y)(2)\nmay be quite generalized. It does not provide information at\na time or in a form that allows the employee to meaningfully\nrespond and possibly avert an adverse employment action.\nIf the employer’s failure to provide a compliant disclosure in\nGroshek was a bare procedural violation insufficient to confer\nstanding, then the plaintiffs here have likewise suffered a\nmere procedural violation unaccompanied by any concrete\ninjury.\n The plaintiffs insist that Allstate’s failure to comply with\nsubsection (y)(2) left them “hampered in defending them-\nselves before Allstate or potential employers.” But subsec-\n\fNos. 17-1310 & 17-1649 27\n\ntion (y)(2) doesn’t protect a substantive “defense” interest.\nAt most it serves a minimal notice function. And the plain-\ntiffs have not explained how the modest, post hoc summary\nrequired by subsection (y)—again, a brief oral summary\nsuffices—could possibly have informed a “defense” against\nAllstate after the fact. We note, moreover, that they failed to\nidentify any prospective employer that refused to hire them\nbased on the 10-K or the Greffin memo, so they have not\nestablished that they suffered a concrete informational\ninjury. Nor have they identified any other tangible or intan-\ngible harm arising from Allstate’s failure to comply.\n In short, the FCRA claim rests on a bare procedural viola-\ntion of subsection (y)(2) unaccompanied by any concrete and\nparticularized harm or risk of harm to an interest protected\nby the statute. The FCRA awards must be vacated and the\nclaim dismissed for lack of standing.\n Our ruling on the plaintiffs’ standing to sue under the\nFCRA has implications for the defamation awards. As we’ve\nexplained, the FCRA claim was the sole basis for federal\njurisdiction. The district court adjudicated the defamation\nclaim under the supplemental jurisdiction provision, which\nprovides:\n [I]n any civil action of which the district courts\n have original jurisdiction, the district courts\n shall have supplemental jurisdiction over all\n other claims that are so related to claims in the\n action within such original jurisdiction that\n they form part of the same case or controversy\n under Article III of the United States Constitu-\n tion.\n28 U.S.C. § 1367(a).\n\f28 Nos. 17-1310 & 17-1649\n\n By its plain terms, § 1367(a) “makes clear that supple-\nmental jurisdiction may only be invoked when the district\ncourt has a hook of original jurisdiction on which to hang it.”\nHerman Family Revocable Tr. v. Teddy Bear, 254 F.3d 802, 805\n(9th Cir. 2001). Because the plaintiffs lack Article III standing\nto bring the FCRA claim, there is no original jurisdictional\n“hook” to support an assertion of § 1367(a) supplemental\njurisdiction over the defamation claim, and the district court\nwas without power to hear it.\n [I]f the federal claim [is] dismissed for lack of\n subject matter jurisdiction, a district court has\n no discretion to retain the supplemental claims\n for adjudication. The dismissal means that\n there never was a valid claim within the court’s\n original jurisdiction to which the state claims\n may be supplemental. Therefore, the district\n court has no discretion to exceed the scope of\n its Article III power and must dismiss the state\n law claims without prejudice.\n16 JAMES WM. MOORE, MOORE’S FEDERAL PRACTICE § 106.66[1]\n(Daniel R. Coquillette et al. eds., 3d ed. 2018).\n In notable contrast, when the court dismisses the federal\nclaim on the merits, it has the discretion under § 1367(c)(3) to\ndecline to hear related state-law claims or to retain them,\nthough there is a general presumption that the court will\nrelinquish supplemental jurisdiction and dismiss the state-\nlaw claims without prejudice. RWJ Mgmt. Co. v. BP Prods. N.\nAm., Inc., 672 F.3d 476, 479–80 (7th Cir. 2012). But that’s not\nthis case. Here the plaintiffs failed to establish Article III\nstanding to bring the federal claim that supported the exer-\ncise of § 1367(a) jurisdiction. “[W]here there is no underlying\n\fNos. 17-1310 & 17-1649 29\n\noriginal federal subject matter jurisdiction, the court has no\nauthority to adjudicate supplemental claims under § 1367.”\nHerman Family Revocable Tr., 254 F.3d at 805; see also Textile\nProds., Inc. v. Mead Corp., 134 F.3d 1481, 1485–86 (Fed. Cir.\n1998); Saksenasingh v. Sec’y of Educ., 126 F.3d 347, 351 (D.C.\nCir. 1997); Musson Theatrical, Inc. v. Fed. Express Corp., 89 F.3d\n1244, 1255 (6th Cir. 1996); Nowak v. Ironworkers Local 6 Pen-\nsion Fund, 81 F.3d 1182, 1187 (2d Cir. 1996).\n We are not unmindful of the costs of a jurisdictional dis-\nmissal at this late stage, after a full trial on the merits and an\nappeal. Regrettably, the federal courts have sunk considera-\nble resources into resolving the parties’ dispute when the\ncase belonged in state court. But the jurisdictional defect\nleaves us with no choice. Accordingly, the judgment is\nvacated and the case is remanded with instructions to dis-\nmiss the entire action for lack of subject-matter jurisdiction.\nSee FED. R. CIV. P. 12(h)(3) (“If the court determines at any\ntime that it lacks subject-matter jurisdiction, the court must\ndismiss the action.”).\n VACATED AND REMANDED WITH INSTRUCTIONS.\n[END_CASE]", "role": "user" } ]
4,581,419		Daniel Rivera v. Allstate Insurance Company	2019-01-14	17-1649	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before KANNE and SYKES, Circuit Judges, and DARROW, District Judge.", "parties": "", "opinions": [{"author": "Diane S. Sykes", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNos. 17-1310 & 17-1649\nDANIEL RIVERA, et al.,\n Plaintiffs-Appellees.\n v.\n\nALLSTATE INSURANCE COMPANY,\n Defendant-Appellant.\n ____________________\n\n Appeals from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 10 C 1733 — William T. Hart, Judge.\n ____________________\n\n ARGUED OCTOBER 25, 2017 — DECIDED OCTOBER 31, 2018\n AS AMENDED ON PETITION FOR REHEARING JANUARY 14, 2019\n ____________________\n\n Before KANNE and SYKES, Circuit Judges, and DARROW,\nDistrict Judge. \n SYKES, Circuit Judge. In 2009 Allstate Insurance Company\nlaunched an internal investigation into suspicious trading on\nits equity desk. The initial inquiry unearthed email evidence\nsuggesting that several portfolio managers might be timing\n\n Of the Central District of Illinois, sitting by designation.\n\f2 Nos. 17-1310 & 17-1649\n\ntrades to inflate their bonuses at the expense of their portfo-\nlios, which included two pension funds to which Allstate\nowed fiduciary duties. Allstate retained attorneys from\nSteptoe & Johnson to investigate further, and they in turn\nhired an economic consulting firm to calculate potential\nlosses. Based on the email evidence, the consulting firm\nfound reason to believe that timed trading had potentially\ncost the portfolios $8 million and possibly much more.\nBecause actual losses could not be established, the consult-\nants used an algorithm to estimate a potential adverse\nimpact of $91 million on the pension funds. Everyone under-\nstood that this estimate was wildly unrealistic, but in an\nabundance of caution, Allstate poured $91 million into the\npension portfolios.\n When the investigation wrapped up, Steptoe lawyers de-\nlivered oral findings to Allstate. The company thereafter\ndetermined that four portfolio managers—Daniel Rivera,\nStephen Kensinger, Deborah Meacock, and Rebecca\nScheuneman—had violated the company’s conflict-of-\ninterest policy by timing trades to improve their bonuses. On\nDecember 3, 2009, Allstate fired them for cause.\n On February 25, 2010, Allstate filed its annual Form 10-K\nfor 2009. The report explained that: (1) in 2009 the company\nhad received information about possible timed trading and\nretained counsel to investigate; (2) counsel hired an econom-\nic consulting firm to estimate the potential impact on the\nportfolios; and (3) based on this outside investigation,\nAllstate paid $91 million into the two pension funds to cover\nthe potential adverse impact. That same day Allstate sent a\nmemo to employees in its Investment Department describ-\ning the information disclosed in the 10-K. Neither document\nmentioned the four fired portfolio managers.\n\fNos. 17-1310 & 17-1649 3\n\n Three weeks later the four former employees sued All-\nstate in federal court for defamation based on the 10-K and\nthe internal memo. They also alleged that Allstate violated\n15 U.S.C. § 1681a(y)(2), a provision in the Fair Credit Report-\ning Act (“FCRA or the Act”), by failing to give them a sum-\nmary of Steptoe’s findings after they were fired. The\ndefamation claim was the main event in the litigation; the\nFCRA claim received comparatively little attention. A jury\nreturned a verdict in the plaintiffs’ favor, awarding more\nthan $27 million in compensatory and punitive damages,\nand statutory damages on the FCRA claim (there are no\nactual damages on that claim). The district judge tacked on\nadditional punitive damages and attorney’s fees under the\nFCRA.\n Allstate attacks the defamation awards on multiple\ngrounds and also argues that the FCRA awards must be\nvacated for lack of standing under Spokeo, Inc. v. Robbins,\n136 S. Ct. 1540 (2016). We agree that the plaintiffs lack a\nconcrete injury to support Article III standing on the FCRA\nclaim. So that claim must be dismissed on jurisdictional\ngrounds. And that ends our review. Because the FCRA claim\nprovided the sole basis for federal jurisdiction—and thus the\nonly basis for the district court to exercise supplemental\njurisdiction over the state-law claim under 28 U.S.C.\n§ 1367(a)—the district court was without power to adjudi-\ncate the defamation claim, and it too must be dismissed for\nlack of jurisdiction. The parties did not identify the § 1367(a)\njurisdictional problem in their initial briefing, but that does\nnot matter; defects in subject-matter jurisdiction must al-\nways be addressed. Accordingly, we vacate the judgment\nand remand with instructions to dismiss the action in its\n\f4 Nos. 17-1310 & 17-1649\n\nentirety for lack of subject-matter jurisdiction. See FED. R.\nCIV. P. 12(h)(3).\n I. Background\n Plaintiffs Rivera, Kensinger, Meacock, and Scheuneman\nwere employed as securities analysts in the Equity Division\nof Allstate’s Investment Department. Rivera was the Division\ndirector, and Kensinger, Meacock, and Scheuneman were\nanalysts on the growth team. During their time with the\ncompany, the Equity Division managed and invested\n$10 billion in assets on behalf of various funds, including\ntwo defined-benefit pension plans. Because the plaintiffs\nhelped manage two pension portfolios, they occupied posi-\ntions of trust and owed a duty of loyalty to plan beneficiaries\nunder the Employee Retirement Income Security Act. See\n29 U.S.C. § 1104(a)(1). They were also bound by Allstate’s\ncode of ethics, which required them to avoid conflicts of\ninterest.\n In addition to their salaries, the plaintiffs were eligible to\nreceive bonus compensation under Allstate’s “pay-for-\nperformance” plan. The plan relied on a formula called the\n“Dietz method” to estimate portfolio returns and evaluate\nperformance accordingly. The Dietz method assumes that all\ncash flows in a portfolio occur at the same time of day; high\ntransaction volume makes it impractical to use actual trade\ntimes. The particular formula in use at Allstate assumed all\ncash flows occurred at midday.\n While practical, Allstate’s formula had two drawbacks.\nFirst, it distorted a portfolio’s actual performance, both\npositive and negative. The midday Dietz method inflated\nmeasured performance for sales on up days and buys on\ndown days; conversely, it understated measured perfor-\n\fNos. 17-1310 & 17-1649 5\n\nmance when sales were made on down days and buys on up\ndays. Allstate’s traders referred to this discrepancy as the\n“Dietz effect.”\n Second, the formula could be manipulated. Because it as-\nsumed that all cash flows occurred midday, portfolio man-\nagers could wait until the end of day to calculate the Dietz\neffect before deciding to execute a trade. The system conse-\nquently rewarded portfolio managers who waited to make\ntrades even if the portfolio suffered as a result. Moreover,\nAllstate’s bonus structure measured performance relative to\na daily benchmark; it didn’t consider market movement in\nthe preceding days. This feature also pitted the interests of\nthe manager against those of the portfolio. A manager could\nimprove his performance by delaying a sale over several\ndown days before selling on an up day even if the portfolio\nwould have been better off if he sold earlier. In sum, under\nAllstate’s pay-for-performance plan, portfolio managers\ncould boost their bonus pay by timing trades—potentially at\nthe expense of their portfolios.\n In mid-2009 Allstate received troubling information that\nits portfolio managers were doing just that. Peter Hecht, a\nmember of Allstate’s Performance Management Group,\nreported to Chief Compliance Officer Trond Odegaard that\nmembers of the Equity Division were delaying trades to\nmaximize their bonuses at the expense of their portfolios.\nOdegaard passed these concerns along to Chief Investment\nOfficer Judy Greffin, who ordered him to investigate.\n Odegaard and a team of Allstate employees soon discov-\nered signs of timed trading. The team noted several trading\npatterns that suggested portfolio managers had delayed\ntrades to take advantage of the Dietz effect. The investiga-\n\f6 Nos. 17-1310 & 17-1649\n\ntion also uncovered emails suggesting that the managers\nwere aware of the Dietz effect and actively considered it\nwhen trading. Though not conclusive, the investigation\nraised concerns that personnel in the Equity Division had\ntimed trades to increase bonuses at the expense of their\nportfolios; as a result, Allstate may have reported inaccurate\nfinancial information to the public.\n Allstate accordingly retained the law firm Steptoe &\nJohnson to investigate further. Steptoe attorneys interviewed\nRivera and Scheuneman regarding their trading practices\nand hired NERA Economic Consulting, Inc., an independent\neconomic consulting firm, to determine if timed trading had\nharmed the portfolios, especially the pension funds. Begin-\nning with the trades mentioned in the suspicious emails and\neventually reviewing six years of trading data, NERA pre-\nliminarily estimated a potential adverse portfolio impact of\n$8.2 million.\n But NERA had reason to believe that the actual impact\nmay be much higher. Several suspicious emails could not be\ntied to particular trades, and other evidence suggested that\nportfolio managers routinely considered Dietz in the course\nof trading. Based on Allstate’s records, however, it was not\npossible to calculate actual losses with any precision. So\nNERA devised an algorithm that would capture every Dietz-\nfavorable trade from June 2003 to May 2009 that was execut-\ned after a series of days where the Dietz effect would have\nharmed the trader’s performance. Based on these parame-\nters, NERA estimated that over the six years surveyed, the\npotential adverse impact on the pension plans was\n$91 million and the potential adverse impact on the compa-\nny’s other portfolios was $116 million. It was clear to every-\none that these estimates vastly overstated the potential effect\n\fNos. 17-1310 & 17-1649 7\n\nof timed trading. Erring on the side of caution, however, in\nmid-December Allstate paid $91 million into the two pension\nplans to compensate for any potential losses.\n While the investigation was ongoing, Allstate disbanded\nthe Equity Division and outsourced its work to Goldman\nSachs. On October 6, 2009, Greffin met first with Rivera and\nthen the rest of the division and explained that every mem-\nber, save those who managed convertible portfolios, would\nbe let go effective December 31, 2009. The laid-off employees\nwould, however, receive severance pay. Later that day\nSteptoe attorneys conducted off-site interviews with Equity\nDivision managers concerning Dietz trading.\n The outside investigation soon wrapped up, and Steptoe\nattorneys orally reported the findings to Allstate. Based on\nthe internal and external investigations, Allstate concluded\nthat Rivera, Meacock, Scheuneman, and Kensinger had\nviolated the company’s conflict-of-interest policy by timing\ntrades. On December 3, 2009, Brett Winchell, the Director of\nHuman Resources, informed each of the four analysts that\nthey were fired for cause effective immediately. Winchell\ndelivered the bad news by reading from a short script that\nreminded the four managers of the investigation into timed\ntrading, noted that each of them had been interviewed by\noutside counsel, and explained that they were being fired\nbecause they violated Allstate’s conflict-of-interest policy. All\nfour asked Winchell for additional explanation; they later\nasked the same questions in writing. No further explanation,\noral or written, was forthcoming. Allstate immediately\nescorted them off the premises and disconnected their phone\nand email service the next day.\n\f8 Nos. 17-1310 & 17-1649\n\n On December 16 Steptoe attorneys met with regulators in\nthe Department of Labor’s Employee Benefits Security\nAdministration to discuss the investigation as it related to\nthe pension funds. At the Department’s request, Steptoe sent\na follow-up letter summarizing the allegations of timed\ntrading and the subsequent investigation. The letter—dated\nJanuary 29, 2010—advised the Department that the employ-\nees in Allstate’s Equity Division had denied that they im-\nproperly delayed trades but that several emails “could\nsupport a contrary conclusion.” The letter further explained\nthat NERA’s algorithm “estimate[d] potential disadvantage\nto the plans” but that “there is little question that the algo-\nrithm overstate[d] any disadvantages that the plans might\nhave suffered.” Finally, the letter explained that “taking into\naccount returns recalculated by NERA,” the estimated\n“increase in the aggregate bonuses for the entire group” was\n“approximately $1.2 million.”\n Fast-forward to October 14, 2010. On that day Allstate’s\nin-house counsel sent another letter to the Labor Department\nclarifying that the $1.2 million figure “roughly approxi-\nmate[d] the potential increase in bonuses, … assum[ing] the\nalgorithm used by NERA … reflected actual trading activi-\nty.” This letter emphasized that NERA’s calculations estimat-\ned “a possible maximum impact” and explained that “[n]o\none believed, then or now, that this was an accurate descrip-\ntion of the activity on the equity desk, nor that any actual\nimpact on the portfolios was anywhere near the result\nproduced by using the NERA algorithm.” The October letter\nalso stated that if the analysis had been limited to the trades\nmentioned in the suspicious emails, “there would have been\nvirtually no effect on bonuses.”\n\fNos. 17-1310 & 17-1649 9\n\n Returning now to our chronology, on February 25, 2010,\nAllstate filed its annual 10-K report for 2009 in which it\ndisclosed the allegations of timed trades and explained in\ngeneral terms the subsequent investigation and the compa-\nny’s decision to reimburse the two pension plans. As rele-\nvant here, the 10-K stated:\n In 2009, we became aware of allegations\n that some employees responsible for trading\n equity securities in certain portfolios of two\n [Allstate Insurance Company] defined benefit\n pension plans and certain portfolios of [All-\n state Insurance Company] and an [Allstate In-\n surance Company] subsidiary may have timed\n the execution of certain trades in order to en-\n hance their individual performance under in-\n centive compensation plans, without regard to\n whether such timing adversely impacted the\n actual investment performance of the portfoli-\n os.\n We retained outside counsel, who in turn\n engaged an independent economic consulting\n firm to conduct a review and assist us in un-\n derstanding the facts surrounding, and the po-\n tential implications of, the alleged timing of\n these trades for the period from June 2003 to\n May 2009. The consulting firm reported that it\n was unable to determine from our records the\n precise amounts by which portfolio perfor-\n mance might have been adversely impacted\n during that period. Accordingly, the economic\n consultant applied economic modeling tech-\n niques and assumptions reasonably designed\n\f10 Nos. 17-1310 & 17-1649\n\n to estimate the potential adverse impact on the\n pension plans and the company accounts, tak-\n ing into account, among other things, the dis-\n tinctions between the pension plans and the\n company portfolios.\n Based on their work, the economic consult-\n ants estimated that the performance of the\n pension plans’ portfolios could have been ad-\n versely impacted by approximately $91 million\n (including interest) and that the performance\n of the company portfolios could have been ad-\n versely impacted by approximately $116 mil-\n lion (including interest) in the aggregate over\n the six-year period under review. We believe\n that our financial statements and those for the\n pension plans properly reflected the portfolios’\n actual investment performance results during\n the entire period that was reviewed.\n In December 2009, based on the economic\n consultant’s modeled estimates, we paid an ag-\n gregate of $91 million into the two defined\n benefit pension plans. These payments had no\n material impact on our reported earnings or\n shareholders’ equity, but reduced our assets,\n operating cash flows, and unfunded pension\n liability to the plans. … At all times during this\n period, the plans were adequately funded pur-\n suant to applicable regulatory and actuarial re-\n quirements. As a result of these additional\n funds in the plans, our future contributions to\n the plans, based on actuarial analysis, may be\n reduced. Using the economic consultant’s cal-\n\fNos. 17-1310 & 17-1649 11\n\n culation of the potential adverse impact on the\n portfolios, we currently estimate that the addi-\n tional compensation paid to all the employees\n working in the affected group was approxi-\n mately $1.2 million over the six-year period as\n a result of these activities. In late 2009, we re-\n tained an independent investment firm to con-\n duct portfolio management and trading\n activity for the specific portfolios impacted by\n these activities.\n That same day Greffin sent a memo to all employees in\nthe Investment Department alerting them to the information\nin the 10-K filing. In full, the Greffin memo states:\n Allstate released its annual financial report\n on Form 10–K today. Within that filing, we dis-\n closed details around allegations regarding\n trading practices within our equity portfolios\n that came to light in the past year. We took this\n matter very seriously and launched an investi-\n gation as soon as we became aware of the alle-\n gations.\n Outside counsel was retained to assist us in\n understanding the facts surrounding, and the\n potential implications of, these activities. As\n part of their analysis, an independent econom-\n ic consulting firm was retained to estimate the\n potential adverse impact to the performance of\n our portfolios. The consultant determined that\n the performance on some of our portfolios, as\n well as our two pension plan portfolios, could\n have been adversely impacted by the activities.\n\f12 Nos. 17-1310 & 17-1649\n\n As a result, Allstate made a contribution to the\n pension plans during the 4th quarter which is\n disclosed in the 10–K.\n We believe that our financial statements\n and those of the pension plans properly re-\n flected the portfolios’ actual investment per-\n formance and the pension plans were\n adequately funded during this entire period.\n This matter did not affect the plans’ ability to\n continue to provide benefits to plan partici-\n pants.\n Situations like this can be unsettling and\n can reflect poorly on our organization. Howev-\n er, I believe organizations are also defined by\n how they respond to events like this. We were\n transparent in reporting this matter to the\n U.S. Department of Labor and the S.E.C., and\n disclosed it to our investors. We’re taking steps\n to improve our governance, compliance prac-\n tices and training.\n We remain committed to the highest levels\n of ethics and integrity in the stewardship\n of Allstate’s assets.\n Three weeks later the four fired portfolio managers sued\nAllstate and Greffin in federal court for defamation based on\nthe 10-K and Greffin’s internal memo. They also asserted a\nclaim against Allstate for violation of § 1681a(y)(2) of the\nFCRA and a claim against Greffin for tortious interference\nwith prospective economic advantage. The district judge\ndismissed the tortious-interference claim, and the plaintiffs\nthen amended their complaint to add an age-discrimination\n\fNos. 17-1310 & 17-1649 13\n\nclaim against Allstate. They later dismissed the discrimina-\ntion claim as well as the defamation claim against Greffin.\n Lengthy discovery ensued and in due course Allstate\nmoved for summary judgment. Judge Feinerman ruled that\nthe statements in the 10-K and the Greffin memo were not\ndefamatory per se. Rivera v. Allstate Ins. Co., 140 F. Supp. 3d\n722, 729–30 (N.D. Ill. 2015). But he permitted the case to go\nforward on a theory of defamation per quod and on the\nFCRA claim. Id. at 730–37.\n As narrowed, the case proceeded to a jury trial with\nJudge Hart presiding. The jury found for the plaintiffs across\nthe board and awarded more than $27 million in compensa-\ntory and punitive damages, broken down roughly as fol-\nlows:\n Rivera:\n $7.1 million (defamation compensatory damages)\n $4 million (defamation punitive damages)\n $1,000 (FCRA statutory damages)\n Kensinger:\n $2.9 million (defamation compensatory damages)\n $2 million (defamation punitive damages)\n $1,000 (FCRA statutory damages)\n Meacock:\n $3.6 million (defamation compensatory damages)\n $3 million (defamation punitive damages)\n $1,000 (FCRA statutory damages)\n\f14 Nos. 17-1310 & 17-1649\n\n Scheuneman:\n $3.4 million (defamation compensatory damages)\n $1 million (defamation punitive damages)\n $1,000 (FCRA statutory damages)\n Allstate moved for judgment as a matter of law, or alter-\nnatively, for a new trial. The plaintiffs separately asked the\njudge for an award of punitive damages and attorney’s fees\nunder the FCRA. 15 U.S.C. § 1681n(a)(2), (3) (authorizing\n“such amount of punitive damages as the court may allow”\nand attorney’s fees for willful violations of the FCRA).\n Judge Hart denied Allstate’s motion and granted the\nplaintiffs’ requests, awarding each plaintiff an additional\n$3,000 in punitive damages under the FCRA and approving\ntheir request for $357,716.25 in attorney’s fees associated\nwith the statutory claim.\n II. Discussion\n Allstate attacks this large judgment on many grounds. In\nbrief, the company argues that the defamation awards must\nbe set aside because: (1) the statements in the 10-K and the\nGreffin memo were substantially true; (2) neither the 10-K\nnor the Greffin memo identified the plaintiffs, and no evi-\ndence supports a finding that these documents could be\nreasonably understood to refer to them; (3) the statements in\nthe 10-K and the Greffin memo were privileged; and (4) the\nplaintiffs failed to prove special damages as required for\nrecovery for defamation per quod. Regarding the FCRA\nawards, Allstate argues that the plaintiffs lack standing\nunder Spokeo, and secondarily, that the record does not\nsupport the jury’s finding of a willful violation of the statute\nas required for statutory and punitive damages. (There are\n\fNos. 17-1310 & 17-1649 15\n\nno actual damages.) Finally, Allstate attacks the award of\nFCRA attorney’s fees as excessive and disproportionate\nconsidering the relative insignificance of the statutory claim\nto this litigation.\n The state-law defamation claim predominated over the\nfederal claim in this long-running litigation—both in the\ndistrict court and here. The FCRA claim occupied very little\nof the parties’ appellate briefing and received only modest\nattention below. Our initial opinion vacated the defamation\nawards based on the plaintiffs’ failure to prove special\ndamages. We also vacated the FCRA awards for lack of\nstanding under Spokeo and remanded with instructions to\ndismiss the federal claim for lack of jurisdiction.\n The plaintiffs petitioned for rehearing, raising for the first\ntime a probable jurisdictional defect under § 1367 if we\nfound—as we did—that they failed to establish an injury in\nfact sufficient to support Article III standing to litigate the\nFCRA claim. The petition noted that the FCRA claim pro-\nvided the only jurisdictional basis for litigating this entire\ndispute in federal court. The district court’s jurisdiction\nrested solely on federal-question jurisdiction, see 28 U.S.C.\n§ 1331; the parties are not diverse, so 28 U.S.C. § 1332 does\nnot apply. And the court’s supplemental jurisdiction under\n§ 1367(a) to adjudicate the state-law defamation claim evap-\norates if the claim on which federal jurisdiction rests is\ndismissed on jurisdictional grounds.\n We accordingly withdraw our original opinion and in its\nplace substitute this amended opinion. Although the parties\nspent most of their energy on the merits of the defamation\nclaim, our analysis begins and ends with the jurisdictional\nbasis for the FCRA claim.\n\f16 Nos. 17-1310 & 17-1649\n\n Relying on Spokeo, Allstate maintains that the FCRA\nawards must be tossed out for lack of standing. A bit of\nstatutory background is required to understand the FCRA\nclaim in this case. We note for starters that the case repre-\nsents an odd application of the Act. The FCRA regulates the\nactivities of consumer reporting agencies and the permissi-\nble uses of consumer reports by third parties. Among many\nother regulatory requirements, the Act imposes certain\nprocedures for the use of consumer reports for employment\npurposes.\n For example, the Act prohibits an employer from procur-\ning a consumer report about an employee or job applicant\nwithout first giving that person a stand-alone written notice\nthat “clear[ly] and conspicuous[ly]” discloses the employer’s\nrequest for permission to access the report and the person\nsigns a written consent to release the report to the employer.\nSee 15 U.S.C. § 1681b(b)(2)(A) (establishing the disclosure\nand consent requirements); see id. § 1681a(d)(1) (defining\n“consumer report” to include reports about a consumer’s\ncreditworthiness and personal background compiled by a\n“consumer reporting agency” and “used or expected to be\nused … for the purpose of serving as a factor in establishing\nthe consumer’s eligibility for” credit, insurance, or “em-\nployment purposes”).\n The Act further requires that before taking any adverse\naction against an employee or job applicant “based in whole\nor in part” on such a report, the employer must give the\nemployee or applicant a copy of the report and a written\ndescription of the person’s rights under the Act. Id.\n§ 1681b(b)(3)(A).\n\fNos. 17-1310 & 17-1649 17\n\n The FCRA provision at issue here appears in § 1681a,\nwhich contains the Act’s definitions and rules of construc-\ntion. (The statutory scheme is reticulated and complex, so\nbear with us.) Subsection (d)(2)(D) of § 1681a excludes from\nthe definition of “consumer report” any “communication\ndescribed in subsection (o) or (x).” The reference to “subsec-\ntion (x)” is an error; it should read “subsection (y).” The\nerror was introduced in the Dodd–Frank Act of 2010, 1 which\nredesignated the former subsection (x) as subsection (y) but\nneglected to update the cross-reference in § 1681a(d)(2)(D).\nSee Pub. L. No. 111-203, § 1988(a)(1)(A), 124 Stat. 1376, 2086.\n Subsection (y), the cross-referenced provision, was enact-\ned as part of the Fair and Accurate Credit Transactions Act\nof 2003, Pub. L. No. 108-159, § 611, 117 Stat. 1952, 2010. It\nreads in pertinent part:\n (1) Communications described in this subsec-\n tion\n A communication is described in this subsec-\n tion if–\n (A) but for subsection (d)(2)(D), the com-\n munication would be a consumer report;\n (B) the communication is made to an em-\n ployer in connection with an investigation of—\n (i) suspected misconduct relating to\n employment; or\n\n\n\n1 Technically, the Dodd–Frank Wall Street Reform and Consumer\nProtection Act of 2010.\n\f18 Nos. 17-1310 & 17-1649\n\n (ii) compliance with Federal, State, or\n local laws and regulations, the rules of a\n self-regulatory organization, or any preex-\n isting written policies of the employer;\n (C) the communication is not made for the\n purpose of investigating a consumer’s credit\n worthiness, credit standing, or credit capacity;\n and\n (D) the communication is not provided to\n any person except–\n (i) to the employer or an agent of the\n employer;\n (ii) to any Federal or State officer, agen-\n cy, or department, or any officer, agency, or\n department of a unit of general local gov-\n ernment;\n (iii) to any self-regulatory organization\n with regulatory authority over the activities\n of the employer or employee;\n (iv) as otherwise required by law; or\n (v) pursuant to section 1681f of this title.\n (2) Subsequent disclosure\n After taking any adverse action based in whole\n or in part on a communication described in\n paragraph (1), the employer shall disclose to the\n consumer a summary containing the nature and\n substance of the communication upon which the\n adverse action is based, except that the sources of\n information acquired solely for use in prepar-\n\fNos. 17-1310 & 17-1649 19\n\n ing what would be but for subsection (d)(2)(D)\n an investigative consumer report need not be\n disclosed.\n15 U.S.C. § 1681a(y) (emphasis added).\n So in sum, and to radically simplify: By operation of the\ncross-reference in subsection (d)(2)(D) of § 1681a (and adjust-\ning for the Dodd–Frank mistake), the effect of subsection (y)\nis to exclude from the definition of “consumer report”—and\nthus from the myriad regulatory requirements applicable to\nconsumer reports—any communication that:\n (1) otherwise qualifies as a consumer report (but for sub-\n section (d)(2)(D));\n (2) was made to an employer in connection with an in-\n vestigation of employee misconduct;\n (3) was not made to the employer for purposes of inves-\n tigating an employee’s creditworthiness; and\n (4) is not disclosed to anyone other than the employer, a\n regulatory agency or authority, or as otherwise required\n by law.\n And although § 1681a simply defines statutory terms and\nrules of construction, subsection (y) goes on to say that\n“[a]fter taking any adverse action based in whole or in part\non” a communication of this type, the employer “shall\ndisclose to the consumer a summary containing the nature\nand substance” of the communication. Id. § 1681a(y)(2).\n Needless to say, this is an odd place to find a regulatory\nmandate on employer investigations into workplace mis-\nconduct. Indeed, the provision is so obscure that in its\n15-year existence, subsection (y)(2) of § 1681a appears in no\n\f20 Nos. 17-1310 & 17-1649\n\npublished opinion save the district court’s decision in this\ncase.\n Still, taking § 1681a(y)(2) at face value, we understand it\nto mean that when an employer procures what would other-\nwise qualify as a consumer report in connection with an inves-\ntigation into employee misconduct, the report is not\nconsidered a consumer report under the Act and thus is not\nsubject to either § 1681b(b)(2)(A) (requiring the employer to\ngive a stand-alone written notice and obtain written consent\nbefore procuring the report) or § 1681b(b)(3)(A) (requiring\nthe employer to give the employee or job applicant a copy of\nthe report and a description of his FCRA rights before taking\nan adverse action based on it). Instead, the employer need\nonly provide a summary—an oral summary apparently\nsuffices (subsection (y)(2) does not require anything in\nwriting)—and then only after taking an adverse action based\nin whole or in part on the report.\n The FCRA claim in this case rests on the premise that\nAllstate was required under subsection (y)(2) to provide a\nsummary of Steptoe’s investigation after firing the plaintiffs\nbut failed to do so. It’s not at all clear, though, that the\nSteptoe investigation would otherwise qualify as a “con-\nsumer report” but for the subsection (d)(2)(D) exclusion.\nAnd if the Steptoe investigation isn’t a “consumer report” in\nthe first place, then subsection (y)(2) does not come into play\nand the FCRA simply does not apply.\n Here is the Act’s full definition of the term “consumer\nreport”:\n The term “consumer report” means any\n written, oral, or other communication of any\n information by a consumer reporting agency bear-\n\fNos. 17-1310 & 17-1649 21\n\n ing on a consumer’s credit worthiness, credit\n standing, credit capacity, character, general\n reputation, personal characteristics, or mode of\n living which is used or expected to be used or\n collected in whole or in part for the purpose of\n serving as a factor in establishing the consum-\n er’s eligibility for—\n (A) credit or insurance to be used primarily\n for personal, family, or household purposes;\n (B) employment purposes; or\n (C) any other purpose authorized under\n section 1681b of this title.\n§ 1681a(d)(1) (emphasis added).\n The Steptoe investigation thus cannot be a “consumer\nreport” unless Steptoe qualifies under the Act as a “consum-\ner reporting agency.” Here, in turn, is how the Act defines a\n“consumer reporting agency”:\n The term “consumer reporting agency”\n means any person which, for monetary fees,\n dues, or on a cooperative nonprofit basis, regu-\n larly engages in whole or in part in the practice\n of assembling or evaluating consumer credit\n information or other information on consumers\n for the purpose of furnishing consumer reports\n to third parties, and which uses any means or\n facility of interstate commerce for the purpose\n of preparing or furnishing consumer reports.\n15 U.S.C. § 1681a(f).\n\f22 Nos. 17-1310 & 17-1649\n\n Steptoe & Johnson is a law firm. Nothing in the record\nsuggests that it “regularly engages” in “assembling or\nevaluating consumer credit information” or “furnishing\nconsumer reports to third parties.” The parties have not\nexplained how Steptoe qualifies as a consumer reporting\nagency or how its investigation into timed trading at Allstate\nqualifies as a consumer report. That’s probably because\nAllstate never disputed these points, choosing instead to\ncontest the FCRA claim on other grounds.\n As we explain in a moment, the plaintiffs’ FCRA awards\nmust be vacated on jurisdictional grounds based on the lack\nof any concrete injury to support Article III standing to sue.\nThis opinion should not be construed as endorsing the\nposition that a law-firm investigation of this type qualifies as\na consumer report within the meaning of the Act or that\nsubsection (y)(2) applies in a like situation.\n With that reservation out of the way, we move to the\nquestion of the plaintiffs’ standing. In Spokeo the Supreme\nCourt reinforced the principle that the “injury in fact”\nelement of Article III standing requires an injury that is both\n“concrete and particularized,” and that to be “concrete,” the\ninjury must be “real” and “not abstract”—“that is, it must\nactually exist.” 136 S. Ct. at 1548. The injury need not be\ntangible; Congress may identify intangible harms and author-\nize litigants to seek their redress in court. Id. at 1549. But a\nplaintiff does not “automatically satisf[y] the injury-in-fact\nrequirement whenever a statute grants a person a statutory\nright and purports to authorize that person to sue to vindi-\ncate that right.” Id.\n In Spokeo the plaintiff filed a proposed class action alleg-\ning violations of the FCRA—specifically, several provisions\n\fNos. 17-1310 & 17-1649 23\n\nimposing procedural requirements on consumer reporting\nagencies. Id. at 1545–46. The Court explained that a plaintiff\n“cannot satisfy the demands of Article III by alleging a bare\nprocedural violation” of the Act because “[a] violation of one\nof the FCRA’s procedural requirements may result in no\nharm.” Id. at 1550. The Court said that “a bare procedural\nviolation [of the Act], divorced from any concrete harm,” is\nnot an injury in fact sufficient to confer standing to sue. Id. at\n1549. On the other hand, the Court observed that some\nstatutory violations present a risk of real harm to a litigant\nand that “a plaintiff in such a case need not allege any\nadditional harm beyond the one Congress has identified.” Id.\n So standing questions in cases of this type sometimes re-\nquire us to identify the particular interest Congress sought\nto protect and to determine if the plaintiff has suffered a\nconcrete injury to that interest. Our recent decisions in\nGroshek v. Time Warner Cable, Inc., 865 F.3d 884 (7th Cir.\n2017), and Robertson v. Allied Solutions, LLC, 902 F.3d 690 (7th\nCir. 2018), are illustrative.\n The plaintiff in Groshek signed a form authorizing a pro-\nspective employer to obtain a consumer report about him in\nconnection with his job application; he alleged that the\ndisclosure form was not a stand-alone document as required\nby § 1681b(b)(2)(A). 865 F.3d at 885–86. Applying Spokeo, we\nheld that this claim rested on “a statutory violation com-\npletely removed from any concrete harm or appreciable risk\nof harm.” Id. at 887. We explained that the requirement of a\nstand-alone disclosure “does not seek to protect [the plain-\ntiff] from the kind of harm he claims he has suffered, i.e.,\nreceipt of a non-compliant disclosure.” Id. at 888. That is,\n“Congress did not enact § 1681b(b)(2)(A)(i) to protect job\napplicants from disclosures that do not satisfy the require-\n\f24 Nos. 17-1310 & 17-1649\n\nments of that section; it did so to decrease the risk that a job\napplicant would unknowingly consent to allowing a pro-\nspective employer to procure a consumer report.” Id. Be-\ncause the plaintiff acknowledged that he read and signed the\nemployer’s disclosure form, he had not suffered an injury to\nany interest protected by the Act. Id. at 888–89.\n In Robertson the plaintiff applied for a job with the de-\nfendant, and the defendant procured a background check in\nthe process of considering her application. The background\ncheck qualified as a consumer report under the FCRA, and\nthe employer asked the plaintiff to sign a consent form\ngiving it permission to obtain the report. She did so. The\nemployer initially offered her a job but then rescinded the\noffer when the background check turned up negative infor-\nmation. 902 F.3d at 693–94. She sued for two FCRA viola-\ntions: (1) the employer violated § 1681b(b)(2)(A) because the\nconsent form was not a stand-alone document and did not\ncontain “clear and conspicuous” disclosures, and (2) the\nemployer violated § 1681b(b)(3)(A) by failing to give her a\ncopy of the report before rescinding the job offer. Id. at 693.\nWe referred to the first claim as a “notice claim” and the\nsecond as an “adverse-action claim.” Id.\n The district court dismissed the entire case for lack of\nstanding, and we affirmed in part and reversed in part. The\nfirst claim, we said, was squarely controlled by our decision\nin Groshek, which held that “an injury functionally indistin-\nguishable from the one underpinning [the plaintiff’s] notice\nclaim was not concrete and did not confer standing.”\nRobertson, 902 F.3d at 694. Our conclusion in Groshek applied\nwith equal force in Robertson, so we affirmed the dismissal of\nthe plaintiff’s notice claim. Id.\n\fNos. 17-1310 & 17-1649 25\n\n The adverse-action claim, however, was a different mat-\nter. Recall that § 1681b(b)(3)(A) states that when an employer\nprocures a consumer report about an employee or job appli-\ncant, the employer must disclose a copy of the report to the\nemployee or applicant before taking any adverse action\nagainst him based on it either in whole or in part. In\nRobertson we held that this disclosure obligation protects the\nemployee’s (or applicant’s) interest in the information\nneeded to correct mistakes and respond to the employer’s\npotential concerns before the adverse action occurs, perhaps\naverting it altogether. Id. at 696–97. Testing the plaintiff’s\nclaim against that interest, we held that she suffered a\nconcrete injury because she “was denied information that\ncould have helped her craft a response to [the defendant’s]\nconcerns” about the content of her consumer report before\nthe defendant rescinded the job offer. Id. at 697.\n The question we confront here is whether subsec-\ntion (y)(2) is sufficiently similar to § 1681b(b)(3)(A) to require\nthe same outcome. The answer is no. Subsection (y)(2)\nrequires only that the employer disclose a “summary” of\n“the nature and substance” of a “communication” (i.e., a\nconsumer report) obtained from a third party in connection\nwith an investigation into employee misconduct. The sum-\nmary need not be in writing, and specificity is not required.\nFinally, the summary is required only after the employer\ntakes an adverse action, not before.\n A postdecision, summary-only disclosure obligation like\nthis one is a far cry from § 1681b(b)(3)(A), which (to repeat)\nrequires the employer to give an employee or job applicant a\ncomplete copy of the consumer report and a written explana-\ntion of his FCRA rights before taking any adverse action\nagainst the employee or job applicant. That robust disclosure\n\f26 Nos. 17-1310 & 17-1649\n\nrequirement, we held in Robertson, provides substantive\nprotection: it gives the employee or applicant important\ninformation at a time and in a form that allows him to\ncorrect errors and address the employer’s concerns before\nany adverse action is taken. And that, we said, brought the\ncase within the line of Supreme Court precedents dealing\nwith informational injuries. 902 F.3d at 694 (citing Fed.\nElection Comm’n v. Akins, 524 U.S. 11 (1998); Pub. Citizen v.\nU.S. Dep’t of Justice, 491 U.S. 440 (1989)).\n Subsection (y)(2), in contrast, performs a mere post hoc\nnotice function; it does little more. In that sense this case is\ncloser to Groshek than to Robertson. Indeed, the disclosure\nrequirement at issue in Groshek applies before the employer\nmay access an employee’s or job applicant’s consumer report\nand thus provides the entire basis for the statutory\ninformed-consent procedure. If anything, the disclosure\nrequirement in Groshek serves a far stronger notice purpose\nthan does subsection (y)(2), which operates entirely after the\nfact.\n And the post hoc summary required by subsection (y)(2)\nmay be quite generalized. It does not provide information at\na time or in a form that allows the employee to meaningfully\nrespond and possibly avert an adverse employment action.\nIf the employer’s failure to provide a compliant disclosure in\nGroshek was a bare procedural violation insufficient to confer\nstanding, then the plaintiffs here have likewise suffered a\nmere procedural violation unaccompanied by any concrete\ninjury.\n The plaintiffs insist that Allstate’s failure to comply with\nsubsection (y)(2) left them “hampered in defending them-\nselves before Allstate or potential employers.” But subsec-\n\fNos. 17-1310 & 17-1649 27\n\ntion (y)(2) doesn’t protect a substantive “defense” interest.\nAt most it serves a minimal notice function. And the plain-\ntiffs have not explained how the modest, post hoc summary\nrequired by subsection (y)—again, a brief oral summary\nsuffices—could possibly have informed a “defense” against\nAllstate after the fact. We note, moreover, that they failed to\nidentify any prospective employer that refused to hire them\nbased on the 10-K or the Greffin memo, so they have not\nestablished that they suffered a concrete informational\ninjury. Nor have they identified any other tangible or intan-\ngible harm arising from Allstate’s failure to comply.\n In short, the FCRA claim rests on a bare procedural viola-\ntion of subsection (y)(2) unaccompanied by any concrete and\nparticularized harm or risk of harm to an interest protected\nby the statute. The FCRA awards must be vacated and the\nclaim dismissed for lack of standing.\n Our ruling on the plaintiffs’ standing to sue under the\nFCRA has implications for the defamation awards. As we’ve\nexplained, the FCRA claim was the sole basis for federal\njurisdiction. The district court adjudicated the defamation\nclaim under the supplemental jurisdiction provision, which\nprovides:\n [I]n any civil action of which the district courts\n have original jurisdiction, the district courts\n shall have supplemental jurisdiction over all\n other claims that are so related to claims in the\n action within such original jurisdiction that\n they form part of the same case or controversy\n under Article III of the United States Constitu-\n tion.\n28 U.S.C. § 1367(a).\n\f28 Nos. 17-1310 & 17-1649\n\n By its plain terms, § 1367(a) “makes clear that supple-\nmental jurisdiction may only be invoked when the district\ncourt has a hook of original jurisdiction on which to hang it.”\nHerman Family Revocable Tr. v. Teddy Bear, 254 F.3d 802, 805\n(9th Cir. 2001). Because the plaintiffs lack Article III standing\nto bring the FCRA claim, there is no original jurisdictional\n“hook” to support an assertion of § 1367(a) supplemental\njurisdiction over the defamation claim, and the district court\nwas without power to hear it.\n [I]f the federal claim [is] dismissed for lack of\n subject matter jurisdiction, a district court has\n no discretion to retain the supplemental claims\n for adjudication. The dismissal means that\n there never was a valid claim within the court’s\n original jurisdiction to which the state claims\n may be supplemental. Therefore, the district\n court has no discretion to exceed the scope of\n its Article III power and must dismiss the state\n law claims without prejudice.\n16 JAMES WM. MOORE, MOORE’S FEDERAL PRACTICE § 106.66[1]\n(Daniel R. Coquillette et al. eds., 3d ed. 2018).\n In notable contrast, when the court dismisses the federal\nclaim on the merits, it has the discretion under § 1367(c)(3) to\ndecline to hear related state-law claims or to retain them,\nthough there is a general presumption that the court will\nrelinquish supplemental jurisdiction and dismiss the state-\nlaw claims without prejudice. RWJ Mgmt. Co. v. BP Prods. N.\nAm., Inc., 672 F.3d 476, 479–80 (7th Cir. 2012). But that’s not\nthis case. Here the plaintiffs failed to establish Article III\nstanding to bring the federal claim that supported the exer-\ncise of § 1367(a) jurisdiction. “[W]here there is no underlying\n\fNos. 17-1310 & 17-1649 29\n\noriginal federal subject matter jurisdiction, the court has no\nauthority to adjudicate supplemental claims under § 1367.”\nHerman Family Revocable Tr., 254 F.3d at 805; see also Textile\nProds., Inc. v. Mead Corp., 134 F.3d 1481, 1485–86 (Fed. Cir.\n1998); Saksenasingh v. Sec’y of Educ., 126 F.3d 347, 351 (D.C.\nCir. 1997); Musson Theatrical, Inc. v. Fed. Express Corp., 89 F.3d\n1244, 1255 (6th Cir. 1996); Nowak v. Ironworkers Local 6 Pen-\nsion Fund, 81 F.3d 1182, 1187 (2d Cir. 1996).\n We are not unmindful of the costs of a jurisdictional dis-\nmissal at this late stage, after a full trial on the merits and an\nappeal. Regrettably, the federal courts have sunk considera-\nble resources into resolving the parties’ dispute when the\ncase belonged in state court. But the jurisdictional defect\nleaves us with no choice. Accordingly, the judgment is\nvacated and the case is remanded with instructions to dis-\nmiss the entire action for lack of subject-matter jurisdiction.\nSee FED. R. CIV. P. 12(h)(3) (“If the court determines at any\ntime that it lacks subject-matter jurisdiction, the court must\ndismiss the action.”).\n VACATED AND REMANDED WITH INSTRUCTIONS.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4358672/", "author_raw": "Diane S. Sykes"}]}	KANNE	SYKES	DARROW	1		{"KANNE": ", Circuit", "SYKES": ", Circuit", "DARROW": ", District"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4581419/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Daniel Rivera v. Allstate Insurance Company\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-14\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNos. 17-1310 & 17-1649\nDANIEL RIVERA, et al.,\n Plaintiffs-Appellees.\n v.\n\nALLSTATE INSURANCE COMPANY,\n Defendant-Appellant.\n ____________________\n\n Appeals from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 10 C 1733 — William T. Hart, Judge.\n ____________________\n\n ARGUED OCTOBER 25, 2017 — DECIDED OCTOBER 31, 2018\n AS AMENDED ON PETITION FOR REHEARING JANUARY 14, 2019\n ____________________\n\n Before KANNE and SYKES, Circuit Judges, and DARROW,\nDistrict Judge. \n SYKES, Circuit Judge. In 2009 Allstate Insurance Company\nlaunched an internal investigation into suspicious trading on\nits equity desk. The initial inquiry unearthed email evidence\nsuggesting that several portfolio managers might be timing\n\n Of the Central District of Illinois, sitting by designation.\n\f2 Nos. 17-1310 & 17-1649\n\ntrades to inflate their bonuses at the expense of their portfo-\nlios, which included two pension funds to which Allstate\nowed fiduciary duties. Allstate retained attorneys from\nSteptoe & Johnson to investigate further, and they in turn\nhired an economic consulting firm to calculate potential\nlosses. Based on the email evidence, the consulting firm\nfound reason to believe that timed trading had potentially\ncost the portfolios $8 million and possibly much more.\nBecause actual losses could not be established, the consult-\nants used an algorithm to estimate a potential adverse\nimpact of $91 million on the pension funds. Everyone under-\nstood that this estimate was wildly unrealistic, but in an\nabundance of caution, Allstate poured $91 million into the\npension portfolios.\n When the investigation wrapped up, Steptoe lawyers de-\nlivered oral findings to Allstate. The company thereafter\ndetermined that four portfolio managers—Daniel Rivera,\nStephen Kensinger, Deborah Meacock, and Rebecca\nScheuneman—had violated the company’s conflict-of-\ninterest policy by timing trades to improve their bonuses. On\nDecember 3, 2009, Allstate fired them for cause.\n On February 25, 2010, Allstate filed its annual Form 10-K\nfor 2009. The report explained that: (1) in 2009 the company\nhad received information about possible timed trading and\nretained counsel to investigate; (2) counsel hired an econom-\nic consulting firm to estimate the potential impact on the\nportfolios; and (3) based on this outside investigation,\nAllstate paid $91 million into the two pension funds to cover\nthe potential adverse impact. That same day Allstate sent a\nmemo to employees in its Investment Department describ-\ning the information disclosed in the 10-K. Neither document\nmentioned the four fired portfolio managers.\n\fNos. 17-1310 & 17-1649 3\n\n Three weeks later the four former employees sued All-\nstate in federal court for defamation based on the 10-K and\nthe internal memo. They also alleged that Allstate violated\n15 U.S.C. § 1681a(y)(2), a provision in the Fair Credit Report-\ning Act (“FCRA or the Act”), by failing to give them a sum-\nmary of Steptoe’s findings after they were fired. The\ndefamation claim was the main event in the litigation; the\nFCRA claim received comparatively little attention. A jury\nreturned a verdict in the plaintiffs’ favor, awarding more\nthan $27 million in compensatory and punitive damages,\nand statutory damages on the FCRA claim (there are no\nactual damages on that claim). The district judge tacked on\nadditional punitive damages and attorney’s fees under the\nFCRA.\n Allstate attacks the defamation awards on multiple\ngrounds and also argues that the FCRA awards must be\nvacated for lack of standing under Spokeo, Inc. v. Robbins,\n136 S. Ct. 1540 (2016). We agree that the plaintiffs lack a\nconcrete injury to support Article III standing on the FCRA\nclaim. So that claim must be dismissed on jurisdictional\ngrounds. And that ends our review. Because the FCRA claim\nprovided the sole basis for federal jurisdiction—and thus the\nonly basis for the district court to exercise supplemental\njurisdiction over the state-law claim under 28 U.S.C.\n§ 1367(a)—the district court was without power to adjudi-\ncate the defamation claim, and it too must be dismissed for\nlack of jurisdiction. The parties did not identify the § 1367(a)\njurisdictional problem in their initial briefing, but that does\nnot matter; defects in subject-matter jurisdiction must al-\nways be addressed. Accordingly, we vacate the judgment\nand remand with instructions to dismiss the action in its\n\f4 Nos. 17-1310 & 17-1649\n\nentirety for lack of subject-matter jurisdiction. See FED. R.\nCIV. P. 12(h)(3).\n I. Background\n Plaintiffs Rivera, Kensinger, Meacock, and Scheuneman\nwere employed as securities analysts in the Equity Division\nof Allstate’s Investment Department. Rivera was the Division\ndirector, and Kensinger, Meacock, and Scheuneman were\nanalysts on the growth team. During their time with the\ncompany, the Equity Division managed and invested\n$10 billion in assets on behalf of various funds, including\ntwo defined-benefit pension plans. Because the plaintiffs\nhelped manage two pension portfolios, they occupied posi-\ntions of trust and owed a duty of loyalty to plan beneficiaries\nunder the Employee Retirement Income Security Act. See\n29 U.S.C. § 1104(a)(1). They were also bound by Allstate’s\ncode of ethics, which required them to avoid conflicts of\ninterest.\n In addition to their salaries, the plaintiffs were eligible to\nreceive bonus compensation under Allstate’s “pay-for-\nperformance” plan. The plan relied on a formula called the\n“Dietz method” to estimate portfolio returns and evaluate\nperformance accordingly. The Dietz method assumes that all\ncash flows in a portfolio occur at the same time of day; high\ntransaction volume makes it impractical to use actual trade\ntimes. The particular formula in use at Allstate assumed all\ncash flows occurred at midday.\n While practical, Allstate’s formula had two drawbacks.\nFirst, it distorted a portfolio’s actual performance, both\npositive and negative. The midday Dietz method inflated\nmeasured performance for sales on up days and buys on\ndown days; conversely, it understated measured perfor-\n\fNos. 17-1310 & 17-1649 5\n\nmance when sales were made on down days and buys on up\ndays. Allstate’s traders referred to this discrepancy as the\n“Dietz effect.”\n Second, the formula could be manipulated. Because it as-\nsumed that all cash flows occurred midday, portfolio man-\nagers could wait until the end of day to calculate the Dietz\neffect before deciding to execute a trade. The system conse-\nquently rewarded portfolio managers who waited to make\ntrades even if the portfolio suffered as a result. Moreover,\nAllstate’s bonus structure measured performance relative to\na daily benchmark; it didn’t consider market movement in\nthe preceding days. This feature also pitted the interests of\nthe manager against those of the portfolio. A manager could\nimprove his performance by delaying a sale over several\ndown days before selling on an up day even if the portfolio\nwould have been better off if he sold earlier. In sum, under\nAllstate’s pay-for-performance plan, portfolio managers\ncould boost their bonus pay by timing trades—potentially at\nthe expense of their portfolios.\n In mid-2009 Allstate received troubling information that\nits portfolio managers were doing just that. Peter Hecht, a\nmember of Allstate’s Performance Management Group,\nreported to Chief Compliance Officer Trond Odegaard that\nmembers of the Equity Division were delaying trades to\nmaximize their bonuses at the expense of their portfolios.\nOdegaard passed these concerns along to Chief Investment\nOfficer Judy Greffin, who ordered him to investigate.\n Odegaard and a team of Allstate employees soon discov-\nered signs of timed trading. The team noted several trading\npatterns that suggested portfolio managers had delayed\ntrades to take advantage of the Dietz effect. The investiga-\n\f6 Nos. 17-1310 & 17-1649\n\ntion also uncovered emails suggesting that the managers\nwere aware of the Dietz effect and actively considered it\nwhen trading. Though not conclusive, the investigation\nraised concerns that personnel in the Equity Division had\ntimed trades to increase bonuses at the expense of their\nportfolios; as a result, Allstate may have reported inaccurate\nfinancial information to the public.\n Allstate accordingly retained the law firm Steptoe &\nJohnson to investigate further. Steptoe attorneys interviewed\nRivera and Scheuneman regarding their trading practices\nand hired NERA Economic Consulting, Inc., an independent\neconomic consulting firm, to determine if timed trading had\nharmed the portfolios, especially the pension funds. Begin-\nning with the trades mentioned in the suspicious emails and\neventually reviewing six years of trading data, NERA pre-\nliminarily estimated a potential adverse portfolio impact of\n$8.2 million.\n But NERA had reason to believe that the actual impact\nmay be much higher. Several suspicious emails could not be\ntied to particular trades, and other evidence suggested that\nportfolio managers routinely considered Dietz in the course\nof trading. Based on Allstate’s records, however, it was not\npossible to calculate actual losses with any precision. So\nNERA devised an algorithm that would capture every Dietz-\nfavorable trade from June 2003 to May 2009 that was execut-\ned after a series of days where the Dietz effect would have\nharmed the trader’s performance. Based on these parame-\nters, NERA estimated that over the six years surveyed, the\npotential adverse impact on the pension plans was\n$91 million and the potential adverse impact on the compa-\nny’s other portfolios was $116 million. It was clear to every-\none that these estimates vastly overstated the potential effect\n\fNos. 17-1310 & 17-1649 7\n\nof timed trading. Erring on the side of caution, however, in\nmid-December Allstate paid $91 million into the two pension\nplans to compensate for any potential losses.\n While the investigation was ongoing, Allstate disbanded\nthe Equity Division and outsourced its work to Goldman\nSachs. On October 6, 2009, Greffin met first with Rivera and\nthen the rest of the division and explained that every mem-\nber, save those who managed convertible portfolios, would\nbe let go effective December 31, 2009. The laid-off employees\nwould, however, receive severance pay. Later that day\nSteptoe attorneys conducted off-site interviews with Equity\nDivision managers concerning Dietz trading.\n The outside investigation soon wrapped up, and Steptoe\nattorneys orally reported the findings to Allstate. Based on\nthe internal and external investigations, Allstate concluded\nthat Rivera, Meacock, Scheuneman, and Kensinger had\nviolated the company’s conflict-of-interest policy by timing\ntrades. On December 3, 2009, Brett Winchell, the Director of\nHuman Resources, informed each of the four analysts that\nthey were fired for cause effective immediately. Winchell\ndelivered the bad news by reading from a short script that\nreminded the four managers of the investigation into timed\ntrading, noted that each of them had been interviewed by\noutside counsel, and explained that they were being fired\nbecause they violated Allstate’s conflict-of-interest policy. All\nfour asked Winchell for additional explanation; they later\nasked the same questions in writing. No further explanation,\noral or written, was forthcoming. Allstate immediately\nescorted them off the premises and disconnected their phone\nand email service the next day.\n\f8 Nos. 17-1310 & 17-1649\n\n On December 16 Steptoe attorneys met with regulators in\nthe Department of Labor’s Employee Benefits Security\nAdministration to discuss the investigation as it related to\nthe pension funds. At the Department’s request, Steptoe sent\na follow-up letter summarizing the allegations of timed\ntrading and the subsequent investigation. The letter—dated\nJanuary 29, 2010—advised the Department that the employ-\nees in Allstate’s Equity Division had denied that they im-\nproperly delayed trades but that several emails “could\nsupport a contrary conclusion.” The letter further explained\nthat NERA’s algorithm “estimate[d] potential disadvantage\nto the plans” but that “there is little question that the algo-\nrithm overstate[d] any disadvantages that the plans might\nhave suffered.” Finally, the letter explained that “taking into\naccount returns recalculated by NERA,” the estimated\n“increase in the aggregate bonuses for the entire group” was\n“approximately $1.2 million.”\n Fast-forward to October 14, 2010. On that day Allstate’s\nin-house counsel sent another letter to the Labor Department\nclarifying that the $1.2 million figure “roughly approxi-\nmate[d] the potential increase in bonuses, … assum[ing] the\nalgorithm used by NERA … reflected actual trading activi-\nty.” This letter emphasized that NERA’s calculations estimat-\ned “a possible maximum impact” and explained that “[n]o\none believed, then or now, that this was an accurate descrip-\ntion of the activity on the equity desk, nor that any actual\nimpact on the portfolios was anywhere near the result\nproduced by using the NERA algorithm.” The October letter\nalso stated that if the analysis had been limited to the trades\nmentioned in the suspicious emails, “there would have been\nvirtually no effect on bonuses.”\n\fNos. 17-1310 & 17-1649 9\n\n Returning now to our chronology, on February 25, 2010,\nAllstate filed its annual 10-K report for 2009 in which it\ndisclosed the allegations of timed trades and explained in\ngeneral terms the subsequent investigation and the compa-\nny’s decision to reimburse the two pension plans. As rele-\nvant here, the 10-K stated:\n In 2009, we became aware of allegations\n that some employees responsible for trading\n equity securities in certain portfolios of two\n [Allstate Insurance Company] defined benefit\n pension plans and certain portfolios of [All-\n state Insurance Company] and an [Allstate In-\n surance Company] subsidiary may have timed\n the execution of certain trades in order to en-\n hance their individual performance under in-\n centive compensation plans, without regard to\n whether such timing adversely impacted the\n actual investment performance of the portfoli-\n os.\n We retained outside counsel, who in turn\n engaged an independent economic consulting\n firm to conduct a review and assist us in un-\n derstanding the facts surrounding, and the po-\n tential implications of, the alleged timing of\n these trades for the period from June 2003 to\n May 2009. The consulting firm reported that it\n was unable to determine from our records the\n precise amounts by which portfolio perfor-\n mance might have been adversely impacted\n during that period. Accordingly, the economic\n consultant applied economic modeling tech-\n niques and assumptions reasonably designed\n\f10 Nos. 17-1310 & 17-1649\n\n to estimate the potential adverse impact on the\n pension plans and the company accounts, tak-\n ing into account, among other things, the dis-\n tinctions between the pension plans and the\n company portfolios.\n Based on their work, the economic consult-\n ants estimated that the performance of the\n pension plans’ portfolios could have been ad-\n versely impacted by approximately $91 million\n (including interest) and that the performance\n of the company portfolios could have been ad-\n versely impacted by approximately $116 mil-\n lion (including interest) in the aggregate over\n the six-year period under review. We believe\n that our financial statements and those for the\n pension plans properly reflected the portfolios’\n actual investment performance results during\n the entire period that was reviewed.\n In December 2009, based on the economic\n consultant’s modeled estimates, we paid an ag-\n gregate of $91 million into the two defined\n benefit pension plans. These payments had no\n material impact on our reported earnings or\n shareholders’ equity, but reduced our assets,\n operating cash flows, and unfunded pension\n liability to the plans. … At all times during this\n period, the plans were adequately funded pur-\n suant to applicable regulatory and actuarial re-\n quirements. As a result of these additional\n funds in the plans, our future contributions to\n the plans, based on actuarial analysis, may be\n reduced. Using the economic consultant’s cal-\n\fNos. 17-1310 & 17-1649 11\n\n culation of the potential adverse impact on the\n portfolios, we currently estimate that the addi-\n tional compensation paid to all the employees\n working in the affected group was approxi-\n mately $1.2 million over the six-year period as\n a result of these activities. In late 2009, we re-\n tained an independent investment firm to con-\n duct portfolio management and trading\n activity for the specific portfolios impacted by\n these activities.\n That same day Greffin sent a memo to all employees in\nthe Investment Department alerting them to the information\nin the 10-K filing. In full, the Greffin memo states:\n Allstate released its annual financial report\n on Form 10–K today. Within that filing, we dis-\n closed details around allegations regarding\n trading practices within our equity portfolios\n that came to light in the past year. We took this\n matter very seriously and launched an investi-\n gation as soon as we became aware of the alle-\n gations.\n Outside counsel was retained to assist us in\n understanding the facts surrounding, and the\n potential implications of, these activities. As\n part of their analysis, an independent econom-\n ic consulting firm was retained to estimate the\n potential adverse impact to the performance of\n our portfolios. The consultant determined that\n the performance on some of our portfolios, as\n well as our two pension plan portfolios, could\n have been adversely impacted by the activities.\n\f12 Nos. 17-1310 & 17-1649\n\n As a result, Allstate made a contribution to the\n pension plans during the 4th quarter which is\n disclosed in the 10–K.\n We believe that our financial statements\n and those of the pension plans properly re-\n flected the portfolios’ actual investment per-\n formance and the pension plans were\n adequately funded during this entire period.\n This matter did not affect the plans’ ability to\n continue to provide benefits to plan partici-\n pants.\n Situations like this can be unsettling and\n can reflect poorly on our organization. Howev-\n er, I believe organizations are also defined by\n how they respond to events like this. We were\n transparent in reporting this matter to the\n U.S. Department of Labor and the S.E.C., and\n disclosed it to our investors. We’re taking steps\n to improve our governance, compliance prac-\n tices and training.\n We remain committed to the highest levels\n of ethics and integrity in the stewardship\n of Allstate’s assets.\n Three weeks later the four fired portfolio managers sued\nAllstate and Greffin in federal court for defamation based on\nthe 10-K and Greffin’s internal memo. They also asserted a\nclaim against Allstate for violation of § 1681a(y)(2) of the\nFCRA and a claim against Greffin for tortious interference\nwith prospective economic advantage. The district judge\ndismissed the tortious-interference claim, and the plaintiffs\nthen amended their complaint to add an age-discrimination\n\fNos. 17-1310 & 17-1649 13\n\nclaim against Allstate. They later dismissed the discrimina-\ntion claim as well as the defamation claim against Greffin.\n Lengthy discovery ensued and in due course Allstate\nmoved for summary judgment. Judge Feinerman ruled that\nthe statements in the 10-K and the Greffin memo were not\ndefamatory per se. Rivera v. Allstate Ins. Co., 140 F. Supp. 3d\n722, 729–30 (N.D. Ill. 2015). But he permitted the case to go\nforward on a theory of defamation per quod and on the\nFCRA claim. Id. at 730–37.\n As narrowed, the case proceeded to a jury trial with\nJudge Hart presiding. The jury found for the plaintiffs across\nthe board and awarded more than $27 million in compensa-\ntory and punitive damages, broken down roughly as fol-\nlows:\n Rivera:\n $7.1 million (defamation compensatory damages)\n $4 million (defamation punitive damages)\n $1,000 (FCRA statutory damages)\n Kensinger:\n $2.9 million (defamation compensatory damages)\n $2 million (defamation punitive damages)\n $1,000 (FCRA statutory damages)\n Meacock:\n $3.6 million (defamation compensatory damages)\n $3 million (defamation punitive damages)\n $1,000 (FCRA statutory damages)\n\f14 Nos. 17-1310 & 17-1649\n\n Scheuneman:\n $3.4 million (defamation compensatory damages)\n $1 million (defamation punitive damages)\n $1,000 (FCRA statutory damages)\n Allstate moved for judgment as a matter of law, or alter-\nnatively, for a new trial. The plaintiffs separately asked the\njudge for an award of punitive damages and attorney’s fees\nunder the FCRA. 15 U.S.C. § 1681n(a)(2), (3) (authorizing\n“such amount of punitive damages as the court may allow”\nand attorney’s fees for willful violations of the FCRA).\n Judge Hart denied Allstate’s motion and granted the\nplaintiffs’ requests, awarding each plaintiff an additional\n$3,000 in punitive damages under the FCRA and approving\ntheir request for $357,716.25 in attorney’s fees associated\nwith the statutory claim.\n II. Discussion\n Allstate attacks this large judgment on many grounds. In\nbrief, the company argues that the defamation awards must\nbe set aside because: (1) the statements in the 10-K and the\nGreffin memo were substantially true; (2) neither the 10-K\nnor the Greffin memo identified the plaintiffs, and no evi-\ndence supports a finding that these documents could be\nreasonably understood to refer to them; (3) the statements in\nthe 10-K and the Greffin memo were privileged; and (4) the\nplaintiffs failed to prove special damages as required for\nrecovery for defamation per quod. Regarding the FCRA\nawards, Allstate argues that the plaintiffs lack standing\nunder Spokeo, and secondarily, that the record does not\nsupport the jury’s finding of a willful violation of the statute\nas required for statutory and punitive damages. (There are\n\fNos. 17-1310 & 17-1649 15\n\nno actual damages.) Finally, Allstate attacks the award of\nFCRA attorney’s fees as excessive and disproportionate\nconsidering the relative insignificance of the statutory claim\nto this litigation.\n The state-law defamation claim predominated over the\nfederal claim in this long-running litigation—both in the\ndistrict court and here. The FCRA claim occupied very little\nof the parties’ appellate briefing and received only modest\nattention below. Our initial opinion vacated the defamation\nawards based on the plaintiffs’ failure to prove special\ndamages. We also vacated the FCRA awards for lack of\nstanding under Spokeo and remanded with instructions to\ndismiss the federal claim for lack of jurisdiction.\n The plaintiffs petitioned for rehearing, raising for the first\ntime a probable jurisdictional defect under § 1367 if we\nfound—as we did—that they failed to establish an injury in\nfact sufficient to support Article III standing to litigate the\nFCRA claim. The petition noted that the FCRA claim pro-\nvided the only jurisdictional basis for litigating this entire\ndispute in federal court. The district court’s jurisdiction\nrested solely on federal-question jurisdiction, see 28 U.S.C.\n§ 1331; the parties are not diverse, so 28 U.S.C. § 1332 does\nnot apply. And the court’s supplemental jurisdiction under\n§ 1367(a) to adjudicate the state-law defamation claim evap-\norates if the claim on which federal jurisdiction rests is\ndismissed on jurisdictional grounds.\n We accordingly withdraw our original opinion and in its\nplace substitute this amended opinion. Although the parties\nspent most of their energy on the merits of the defamation\nclaim, our analysis begins and ends with the jurisdictional\nbasis for the FCRA claim.\n\f16 Nos. 17-1310 & 17-1649\n\n Relying on Spokeo, Allstate maintains that the FCRA\nawards must be tossed out for lack of standing. A bit of\nstatutory background is required to understand the FCRA\nclaim in this case. We note for starters that the case repre-\nsents an odd application of the Act. The FCRA regulates the\nactivities of consumer reporting agencies and the permissi-\nble uses of consumer reports by third parties. Among many\nother regulatory requirements, the Act imposes certain\nprocedures for the use of consumer reports for employment\npurposes.\n For example, the Act prohibits an employer from procur-\ning a consumer report about an employee or job applicant\nwithout first giving that person a stand-alone written notice\nthat “clear[ly] and conspicuous[ly]” discloses the employer’s\nrequest for permission to access the report and the person\nsigns a written consent to release the report to the employer.\nSee 15 U.S.C. § 1681b(b)(2)(A) (establishing the disclosure\nand consent requirements); see id. § 1681a(d)(1) (defining\n“consumer report” to include reports about a consumer’s\ncreditworthiness and personal background compiled by a\n“consumer reporting agency” and “used or expected to be\nused … for the purpose of serving as a factor in establishing\nthe consumer’s eligibility for” credit, insurance, or “em-\nployment purposes”).\n The Act further requires that before taking any adverse\naction against an employee or job applicant “based in whole\nor in part” on such a report, the employer must give the\nemployee or applicant a copy of the report and a written\ndescription of the person’s rights under the Act. Id.\n§ 1681b(b)(3)(A).\n\fNos. 17-1310 & 17-1649 17\n\n The FCRA provision at issue here appears in § 1681a,\nwhich contains the Act’s definitions and rules of construc-\ntion. (The statutory scheme is reticulated and complex, so\nbear with us.) Subsection (d)(2)(D) of § 1681a excludes from\nthe definition of “consumer report” any “communication\ndescribed in subsection (o) or (x).” The reference to “subsec-\ntion (x)” is an error; it should read “subsection (y).” The\nerror was introduced in the Dodd–Frank Act of 2010, 1 which\nredesignated the former subsection (x) as subsection (y) but\nneglected to update the cross-reference in § 1681a(d)(2)(D).\nSee Pub. L. No. 111-203, § 1988(a)(1)(A), 124 Stat. 1376, 2086.\n Subsection (y), the cross-referenced provision, was enact-\ned as part of the Fair and Accurate Credit Transactions Act\nof 2003, Pub. L. No. 108-159, § 611, 117 Stat. 1952, 2010. It\nreads in pertinent part:\n (1) Communications described in this subsec-\n tion\n A communication is described in this subsec-\n tion if–\n (A) but for subsection (d)(2)(D), the com-\n munication would be a consumer report;\n (B) the communication is made to an em-\n ployer in connection with an investigation of—\n (i) suspected misconduct relating to\n employment; or\n\n\n\n1 Technically, the Dodd–Frank Wall Street Reform and Consumer\nProtection Act of 2010.\n\f18 Nos. 17-1310 & 17-1649\n\n (ii) compliance with Federal, State, or\n local laws and regulations, the rules of a\n self-regulatory organization, or any preex-\n isting written policies of the employer;\n (C) the communication is not made for the\n purpose of investigating a consumer’s credit\n worthiness, credit standing, or credit capacity;\n and\n (D) the communication is not provided to\n any person except–\n (i) to the employer or an agent of the\n employer;\n (ii) to any Federal or State officer, agen-\n cy, or department, or any officer, agency, or\n department of a unit of general local gov-\n ernment;\n (iii) to any self-regulatory organization\n with regulatory authority over the activities\n of the employer or employee;\n (iv) as otherwise required by law; or\n (v) pursuant to section 1681f of this title.\n (2) Subsequent disclosure\n After taking any adverse action based in whole\n or in part on a communication described in\n paragraph (1), the employer shall disclose to the\n consumer a summary containing the nature and\n substance of the communication upon which the\n adverse action is based, except that the sources of\n information acquired solely for use in prepar-\n\fNos. 17-1310 & 17-1649 19\n\n ing what would be but for subsection (d)(2)(D)\n an investigative consumer report need not be\n disclosed.\n15 U.S.C. § 1681a(y) (emphasis added).\n So in sum, and to radically simplify: By operation of the\ncross-reference in subsection (d)(2)(D) of § 1681a (and adjust-\ning for the Dodd–Frank mistake), the effect of subsection (y)\nis to exclude from the definition of “consumer report”—and\nthus from the myriad regulatory requirements applicable to\nconsumer reports—any communication that:\n (1) otherwise qualifies as a consumer report (but for sub-\n section (d)(2)(D));\n (2) was made to an employer in connection with an in-\n vestigation of employee misconduct;\n (3) was not made to the employer for purposes of inves-\n tigating an employee’s creditworthiness; and\n (4) is not disclosed to anyone other than the employer, a\n regulatory agency or authority, or as otherwise required\n by law.\n And although § 1681a simply defines statutory terms and\nrules of construction, subsection (y) goes on to say that\n“[a]fter taking any adverse action based in whole or in part\non” a communication of this type, the employer “shall\ndisclose to the consumer a summary containing the nature\nand substance” of the communication. Id. § 1681a(y)(2).\n Needless to say, this is an odd place to find a regulatory\nmandate on employer investigations into workplace mis-\nconduct. Indeed, the provision is so obscure that in its\n15-year existence, subsection (y)(2) of § 1681a appears in no\n\f20 Nos. 17-1310 & 17-1649\n\npublished opinion save the district court’s decision in this\ncase.\n Still, taking § 1681a(y)(2) at face value, we understand it\nto mean that when an employer procures what would other-\nwise qualify as a consumer report in connection with an inves-\ntigation into employee misconduct, the report is not\nconsidered a consumer report under the Act and thus is not\nsubject to either § 1681b(b)(2)(A) (requiring the employer to\ngive a stand-alone written notice and obtain written consent\nbefore procuring the report) or § 1681b(b)(3)(A) (requiring\nthe employer to give the employee or job applicant a copy of\nthe report and a description of his FCRA rights before taking\nan adverse action based on it). Instead, the employer need\nonly provide a summary—an oral summary apparently\nsuffices (subsection (y)(2) does not require anything in\nwriting)—and then only after taking an adverse action based\nin whole or in part on the report.\n The FCRA claim in this case rests on the premise that\nAllstate was required under subsection (y)(2) to provide a\nsummary of Steptoe’s investigation after firing the plaintiffs\nbut failed to do so. It’s not at all clear, though, that the\nSteptoe investigation would otherwise qualify as a “con-\nsumer report” but for the subsection (d)(2)(D) exclusion.\nAnd if the Steptoe investigation isn’t a “consumer report” in\nthe first place, then subsection (y)(2) does not come into play\nand the FCRA simply does not apply.\n Here is the Act’s full definition of the term “consumer\nreport”:\n The term “consumer report” means any\n written, oral, or other communication of any\n information by a consumer reporting agency bear-\n\fNos. 17-1310 & 17-1649 21\n\n ing on a consumer’s credit worthiness, credit\n standing, credit capacity, character, general\n reputation, personal characteristics, or mode of\n living which is used or expected to be used or\n collected in whole or in part for the purpose of\n serving as a factor in establishing the consum-\n er’s eligibility for—\n (A) credit or insurance to be used primarily\n for personal, family, or household purposes;\n (B) employment purposes; or\n (C) any other purpose authorized under\n section 1681b of this title.\n§ 1681a(d)(1) (emphasis added).\n The Steptoe investigation thus cannot be a “consumer\nreport” unless Steptoe qualifies under the Act as a “consum-\ner reporting agency.” Here, in turn, is how the Act defines a\n“consumer reporting agency”:\n The term “consumer reporting agency”\n means any person which, for monetary fees,\n dues, or on a cooperative nonprofit basis, regu-\n larly engages in whole or in part in the practice\n of assembling or evaluating consumer credit\n information or other information on consumers\n for the purpose of furnishing consumer reports\n to third parties, and which uses any means or\n facility of interstate commerce for the purpose\n of preparing or furnishing consumer reports.\n15 U.S.C. § 1681a(f).\n\f22 Nos. 17-1310 & 17-1649\n\n Steptoe & Johnson is a law firm. Nothing in the record\nsuggests that it “regularly engages” in “assembling or\nevaluating consumer credit information” or “furnishing\nconsumer reports to third parties.” The parties have not\nexplained how Steptoe qualifies as a consumer reporting\nagency or how its investigation into timed trading at Allstate\nqualifies as a consumer report. That’s probably because\nAllstate never disputed these points, choosing instead to\ncontest the FCRA claim on other grounds.\n As we explain in a moment, the plaintiffs’ FCRA awards\nmust be vacated on jurisdictional grounds based on the lack\nof any concrete injury to support Article III standing to sue.\nThis opinion should not be construed as endorsing the\nposition that a law-firm investigation of this type qualifies as\na consumer report within the meaning of the Act or that\nsubsection (y)(2) applies in a like situation.\n With that reservation out of the way, we move to the\nquestion of the plaintiffs’ standing. In Spokeo the Supreme\nCourt reinforced the principle that the “injury in fact”\nelement of Article III standing requires an injury that is both\n“concrete and particularized,” and that to be “concrete,” the\ninjury must be “real” and “not abstract”—“that is, it must\nactually exist.” 136 S. Ct. at 1548. The injury need not be\ntangible; Congress may identify intangible harms and author-\nize litigants to seek their redress in court. Id. at 1549. But a\nplaintiff does not “automatically satisf[y] the injury-in-fact\nrequirement whenever a statute grants a person a statutory\nright and purports to authorize that person to sue to vindi-\ncate that right.” Id.\n In Spokeo the plaintiff filed a proposed class action alleg-\ning violations of the FCRA—specifically, several provisions\n\fNos. 17-1310 & 17-1649 23\n\nimposing procedural requirements on consumer reporting\nagencies. Id. at 1545–46. The Court explained that a plaintiff\n“cannot satisfy the demands of Article III by alleging a bare\nprocedural violation” of the Act because “[a] violation of one\nof the FCRA’s procedural requirements may result in no\nharm.” Id. at 1550. The Court said that “a bare procedural\nviolation [of the Act], divorced from any concrete harm,” is\nnot an injury in fact sufficient to confer standing to sue. Id. at\n1549. On the other hand, the Court observed that some\nstatutory violations present a risk of real harm to a litigant\nand that “a plaintiff in such a case need not allege any\nadditional harm beyond the one Congress has identified.” Id.\n So standing questions in cases of this type sometimes re-\nquire us to identify the particular interest Congress sought\nto protect and to determine if the plaintiff has suffered a\nconcrete injury to that interest. Our recent decisions in\nGroshek v. Time Warner Cable, Inc., 865 F.3d 884 (7th Cir.\n2017), and Robertson v. Allied Solutions, LLC, 902 F.3d 690 (7th\nCir. 2018), are illustrative.\n The plaintiff in Groshek signed a form authorizing a pro-\nspective employer to obtain a consumer report about him in\nconnection with his job application; he alleged that the\ndisclosure form was not a stand-alone document as required\nby § 1681b(b)(2)(A). 865 F.3d at 885–86. Applying Spokeo, we\nheld that this claim rested on “a statutory violation com-\npletely removed from any concrete harm or appreciable risk\nof harm.” Id. at 887. We explained that the requirement of a\nstand-alone disclosure “does not seek to protect [the plain-\ntiff] from the kind of harm he claims he has suffered, i.e.,\nreceipt of a non-compliant disclosure.” Id. at 888. That is,\n“Congress did not enact § 1681b(b)(2)(A)(i) to protect job\napplicants from disclosures that do not satisfy the require-\n\f24 Nos. 17-1310 & 17-1649\n\nments of that section; it did so to decrease the risk that a job\napplicant would unknowingly consent to allowing a pro-\nspective employer to procure a consumer report.” Id. Be-\ncause the plaintiff acknowledged that he read and signed the\nemployer’s disclosure form, he had not suffered an injury to\nany interest protected by the Act. Id. at 888–89.\n In Robertson the plaintiff applied for a job with the de-\nfendant, and the defendant procured a background check in\nthe process of considering her application. The background\ncheck qualified as a consumer report under the FCRA, and\nthe employer asked the plaintiff to sign a consent form\ngiving it permission to obtain the report. She did so. The\nemployer initially offered her a job but then rescinded the\noffer when the background check turned up negative infor-\nmation. 902 F.3d at 693–94. She sued for two FCRA viola-\ntions: (1) the employer violated § 1681b(b)(2)(A) because the\nconsent form was not a stand-alone document and did not\ncontain “clear and conspicuous” disclosures, and (2) the\nemployer violated § 1681b(b)(3)(A) by failing to give her a\ncopy of the report before rescinding the job offer. Id. at 693.\nWe referred to the first claim as a “notice claim” and the\nsecond as an “adverse-action claim.” Id.\n The district court dismissed the entire case for lack of\nstanding, and we affirmed in part and reversed in part. The\nfirst claim, we said, was squarely controlled by our decision\nin Groshek, which held that “an injury functionally indistin-\nguishable from the one underpinning [the plaintiff’s] notice\nclaim was not concrete and did not confer standing.”\nRobertson, 902 F.3d at 694. Our conclusion in Groshek applied\nwith equal force in Robertson, so we affirmed the dismissal of\nthe plaintiff’s notice claim. Id.\n\fNos. 17-1310 & 17-1649 25\n\n The adverse-action claim, however, was a different mat-\nter. Recall that § 1681b(b)(3)(A) states that when an employer\nprocures a consumer report about an employee or job appli-\ncant, the employer must disclose a copy of the report to the\nemployee or applicant before taking any adverse action\nagainst him based on it either in whole or in part. In\nRobertson we held that this disclosure obligation protects the\nemployee’s (or applicant’s) interest in the information\nneeded to correct mistakes and respond to the employer’s\npotential concerns before the adverse action occurs, perhaps\naverting it altogether. Id. at 696–97. Testing the plaintiff’s\nclaim against that interest, we held that she suffered a\nconcrete injury because she “was denied information that\ncould have helped her craft a response to [the defendant’s]\nconcerns” about the content of her consumer report before\nthe defendant rescinded the job offer. Id. at 697.\n The question we confront here is whether subsec-\ntion (y)(2) is sufficiently similar to § 1681b(b)(3)(A) to require\nthe same outcome. The answer is no. Subsection (y)(2)\nrequires only that the employer disclose a “summary” of\n“the nature and substance” of a “communication” (i.e., a\nconsumer report) obtained from a third party in connection\nwith an investigation into employee misconduct. The sum-\nmary need not be in writing, and specificity is not required.\nFinally, the summary is required only after the employer\ntakes an adverse action, not before.\n A postdecision, summary-only disclosure obligation like\nthis one is a far cry from § 1681b(b)(3)(A), which (to repeat)\nrequires the employer to give an employee or job applicant a\ncomplete copy of the consumer report and a written explana-\ntion of his FCRA rights before taking any adverse action\nagainst the employee or job applicant. That robust disclosure\n\f26 Nos. 17-1310 & 17-1649\n\nrequirement, we held in Robertson, provides substantive\nprotection: it gives the employee or applicant important\ninformation at a time and in a form that allows him to\ncorrect errors and address the employer’s concerns before\nany adverse action is taken. And that, we said, brought the\ncase within the line of Supreme Court precedents dealing\nwith informational injuries. 902 F.3d at 694 (citing Fed.\nElection Comm’n v. Akins, 524 U.S. 11 (1998); Pub. Citizen v.\nU.S. Dep’t of Justice, 491 U.S. 440 (1989)).\n Subsection (y)(2), in contrast, performs a mere post hoc\nnotice function; it does little more. In that sense this case is\ncloser to Groshek than to Robertson. Indeed, the disclosure\nrequirement at issue in Groshek applies before the employer\nmay access an employee’s or job applicant’s consumer report\nand thus provides the entire basis for the statutory\ninformed-consent procedure. If anything, the disclosure\nrequirement in Groshek serves a far stronger notice purpose\nthan does subsection (y)(2), which operates entirely after the\nfact.\n And the post hoc summary required by subsection (y)(2)\nmay be quite generalized. It does not provide information at\na time or in a form that allows the employee to meaningfully\nrespond and possibly avert an adverse employment action.\nIf the employer’s failure to provide a compliant disclosure in\nGroshek was a bare procedural violation insufficient to confer\nstanding, then the plaintiffs here have likewise suffered a\nmere procedural violation unaccompanied by any concrete\ninjury.\n The plaintiffs insist that Allstate’s failure to comply with\nsubsection (y)(2) left them “hampered in defending them-\nselves before Allstate or potential employers.” But subsec-\n\fNos. 17-1310 & 17-1649 27\n\ntion (y)(2) doesn’t protect a substantive “defense” interest.\nAt most it serves a minimal notice function. And the plain-\ntiffs have not explained how the modest, post hoc summary\nrequired by subsection (y)—again, a brief oral summary\nsuffices—could possibly have informed a “defense” against\nAllstate after the fact. We note, moreover, that they failed to\nidentify any prospective employer that refused to hire them\nbased on the 10-K or the Greffin memo, so they have not\nestablished that they suffered a concrete informational\ninjury. Nor have they identified any other tangible or intan-\ngible harm arising from Allstate’s failure to comply.\n In short, the FCRA claim rests on a bare procedural viola-\ntion of subsection (y)(2) unaccompanied by any concrete and\nparticularized harm or risk of harm to an interest protected\nby the statute. The FCRA awards must be vacated and the\nclaim dismissed for lack of standing.\n Our ruling on the plaintiffs’ standing to sue under the\nFCRA has implications for the defamation awards. As we’ve\nexplained, the FCRA claim was the sole basis for federal\njurisdiction. The district court adjudicated the defamation\nclaim under the supplemental jurisdiction provision, which\nprovides:\n [I]n any civil action of which the district courts\n have original jurisdiction, the district courts\n shall have supplemental jurisdiction over all\n other claims that are so related to claims in the\n action within such original jurisdiction that\n they form part of the same case or controversy\n under Article III of the United States Constitu-\n tion.\n28 U.S.C. § 1367(a).\n\f28 Nos. 17-1310 & 17-1649\n\n By its plain terms, § 1367(a) “makes clear that supple-\nmental jurisdiction may only be invoked when the district\ncourt has a hook of original jurisdiction on which to hang it.”\nHerman Family Revocable Tr. v. Teddy Bear, 254 F.3d 802, 805\n(9th Cir. 2001). Because the plaintiffs lack Article III standing\nto bring the FCRA claim, there is no original jurisdictional\n“hook” to support an assertion of § 1367(a) supplemental\njurisdiction over the defamation claim, and the district court\nwas without power to hear it.\n [I]f the federal claim [is] dismissed for lack of\n subject matter jurisdiction, a district court has\n no discretion to retain the supplemental claims\n for adjudication. The dismissal means that\n there never was a valid claim within the court’s\n original jurisdiction to which the state claims\n may be supplemental. Therefore, the district\n court has no discretion to exceed the scope of\n its Article III power and must dismiss the state\n law claims without prejudice.\n16 JAMES WM. MOORE, MOORE’S FEDERAL PRACTICE § 106.66[1]\n(Daniel R. Coquillette et al. eds., 3d ed. 2018).\n In notable contrast, when the court dismisses the federal\nclaim on the merits, it has the discretion under § 1367(c)(3) to\ndecline to hear related state-law claims or to retain them,\nthough there is a general presumption that the court will\nrelinquish supplemental jurisdiction and dismiss the state-\nlaw claims without prejudice. RWJ Mgmt. Co. v. BP Prods. N.\nAm., Inc., 672 F.3d 476, 479–80 (7th Cir. 2012). But that’s not\nthis case. Here the plaintiffs failed to establish Article III\nstanding to bring the federal claim that supported the exer-\ncise of § 1367(a) jurisdiction. “[W]here there is no underlying\n\fNos. 17-1310 & 17-1649 29\n\noriginal federal subject matter jurisdiction, the court has no\nauthority to adjudicate supplemental claims under § 1367.”\nHerman Family Revocable Tr., 254 F.3d at 805; see also Textile\nProds., Inc. v. Mead Corp., 134 F.3d 1481, 1485–86 (Fed. Cir.\n1998); Saksenasingh v. Sec’y of Educ., 126 F.3d 347, 351 (D.C.\nCir. 1997); Musson Theatrical, Inc. v. Fed. Express Corp., 89 F.3d\n1244, 1255 (6th Cir. 1996); Nowak v. Ironworkers Local 6 Pen-\nsion Fund, 81 F.3d 1182, 1187 (2d Cir. 1996).\n We are not unmindful of the costs of a jurisdictional dis-\nmissal at this late stage, after a full trial on the merits and an\nappeal. Regrettably, the federal courts have sunk considera-\nble resources into resolving the parties’ dispute when the\ncase belonged in state court. But the jurisdictional defect\nleaves us with no choice. Accordingly, the judgment is\nvacated and the case is remanded with instructions to dis-\nmiss the entire action for lack of subject-matter jurisdiction.\nSee FED. R. CIV. P. 12(h)(3) (“If the court determines at any\ntime that it lacks subject-matter jurisdiction, the court must\ndismiss the action.”).\n VACATED AND REMANDED WITH INSTRUCTIONS.\n[END_CASE]", "role": "user" } ]
4,581,681	Mark MITTELSTADT, Plaintiff-Appellant, v. Sonny PERDUE, Secretary of Agriculture, Defendant-Appellee.	Mark Mittelstadt v. Sonny Perdue	2019-01-15	17-2447	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Ripple, Sykes, Scudder", "parties": "", "opinions": [{"author": "Kenneth Francis Ripple", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-2447\nMARK MITTELSTADT,\n Plaintiff-Appellant,\n v.\n\nSONNY PERDUE, Secretary of Agriculture,\n Defendant-Appellee.\n ____________________\n\n Appeal from the United States District Court for the\n Western District of Wisconsin.\n No. 3:15-cv-00725-wmc — William M. Conley, Judge.\n ____________________\n\n ARGUED SEPTEMBER 28, 2018 — DECIDED JANUARY 15, 2019\n ____________________\n\n Before RIPPLE, SYKES, and SCUDDER, Circuit Judges.\n RIPPLE, Circuit Judge. Mark Mittelstadt owned a tract of\nland in Richland County, Wisconsin, that was enrolled in the\nConservation Reserve Program (“CRP”), administered by the\nUnited States Department of Agriculture (“USDA”), from\n1987 to 2006. Participants in the CRP agree to remove environ-\nmentally sensitive land from agricultural production in return\nfor annual rental payments from the USDA. In 2006, the\nagency denied Mr. Mittelstadt’s application to reenroll his\n\f2 No. 17-2447\n\nland in the CRP. After exhausting his administrative appeals,\nhe brought this action against the Secretary of the USDA (“the\nSecretary”). He asserted one claim under Section 702 of the\nAdministrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq.,\nchallenging the Secretary’s final decision denying reenroll-\nment, and one common law claim for breach of contract.\nMr. Mittelstadt moved for summary judgment in the district\ncourt, seeking an order directing reenrollment of his land in\nthe CRP and awarding monetary relief for the alleged breach\nof contract. The district court denied his motion for summary\njudgment, aﬃrmed the Secretary’s rulings, and entered judg-\nment in favor of the Secretary on Mr. Mittelstadt’s APA and\nbreach of contract claims. Mr. Mittelstadt now appeals the\ndistrict court’s decision.\n Under the regulations governing the CRP, the USDA has\nbroad discretion to evaluate oﬀers of enrollment in the pro-\ngram on a competitive basis by considering the environmen-\ntal benefits of a producer’s land relative to its costs. Given the\nagency’s wide latitude, we conclude that the Farm Services\nAgency (“FSA”) did not abuse its discretion when it denied\nreenrollment of Mr. Mittelstadt’s land. Moreover, because he\nnever entered a new contract with the agency, there was no\nbreach of contract. We therefore aﬃrm the judgment of the\ndistrict court.\n I\n A.\n In 1988, Mr. Mittelstadt purchased a tract of land in Rich-\nland County, Wisconsin (“Tract 9073”), that was subject to a\nCRP contract for the period 1987 through 1996. To comply\nwith a revised conservation plan, Mr. Mittelstadt planted\n\fNo. 17-2447 3\n\nwhite pine, walnut, and red oak trees on the land in 1989. A\nCRP review later that year determined that Mr. Mittelstadt\nhad completed all items in the conservation plan. Another\nCRP maintenance inspection in 1995 found no problems with\nthe land. In 1996, the Commodity Credit Corporation\n(“CCC”) extended the existing CRP contract for one year, to\nrun from October 1, 1996, through September 30, 1997.\n In 1997, Mr. Mittelstadt applied to reenroll his land in the\nprogram, stating on the application that Tract 9073 had a con-\nservation practice of CP11, or “vegetative cover—trees—al-\nready established.”1 Relying on the information in his appli-\ncation, the FSA assigned his land an environmental benefits\nindex (“EBI”) score of fifty points.2 This EBI score meant that\nthe conservation practices on the land included “[p]ine estab-\nlished with less than 500 trees per acre with strips of native\nherbaceous and shrub plantings best suited for wildlife in the\narea, mixed hardwoods established, or longleaf pine.”3 The\nFSA approved the new contract (“Contract 653”), to be effec-\ntive from 1998 to 2007. A 2002 field status review of the prop-\nerty found no violations, noting, “Trees are growing and look-\ning good.”4\n In 2006, Mr. Mittelstadt began the reenrollment process by\npaying for a spot-check inspection of Tract 9073. The inspec-\ntion found no violations, noting “62.9 CP11 Tre[es] … already\n\n1 R.16-5 at 2.\n2 The FSA relies on a national EBI to rank offers for enrollment in the CRP\n\nbased on their estimated environmental benefits and costs. See R.16-1 at\n679.\n3 R.16-5 at 3.\n4 Id.\n\f4 No. 17-2447\n\nest” and “good.”5 The Natural Resources Conservation Ser-\nvice (“NRCS”) sent Mr. Mittelstadt Contract 1710, a form CRP\ncontract for the term October 1, 2007, to September 30, 2017,\nwhich Mr. Mittelstadt signed on July 26, 2006.6 On August 19,\n2006, Mr. Mittelstadt signed a revised version of the contract,\namended to reflect the correct acreage of Tract 9073.\n In August 2006, the NRCS sent Mr. Mittelstadt a conserva-\ntion plan for Tract 9073. The plan “identified the conservation\npractice as CP11, a ‘mixed stand (2 species) of hardwoods best\nsuited for wildlife in the area.’”7 Mr. Mittelstadt signed the\nplan on August 24, 2006, and, on September 1, 2006, the Rich-\nland County Conservation Department approved it. The\nNRCS signed off on the plan on September 5, 2006, as did the\nFSA on September 13, 2006.\n B.\n On or around September 13, 2006, Jared Reuter, the\nCounty Executive Director of the Richland County FSA,\nsigned the amended version of Contract 1710 on behalf of the\nCCC. Reuter’s signature was later whited out,8 however, and\nMr. Mittelstadt never received a countersigned copy of Con-\ntract 1710. On September 14 and 16, 2006, Reuter conducted\ntwo maintenance inspections of Mr. Mittelstadt’s land. By let-\nter dated September 21, 2006, the FSA County Committee\n\n\n5 Id.\n6 The CCC never countersigned the original version of Contract 1710.\n7 R.16-5 at 3.\n8 The Secretary contends that Reuter likely whited out his signature after\ninspecting Mr. Mittelstadt’s property and discovering CRP violations on\nTract 9073. Appellee’s Br. 8 n.2.\n\fNo. 17-2447 5\n\nnotified Mr. Mittelstadt that the inspections revealed CRP vi-\nolations on Tract 9073. Aerial photos taken in 2005 showed\nthat three areas of the acreage had “suffered tree loss that the\nfield reporter did not originally report during the re-enroll-\nment compliance check.”9 Reuter also found that very few red\noak trees “were present from the original planting,” and\n“[o]ne area with the most red oak present had less than 100\nplanted red oak trees present.”10 The letter warned that “[v]io-\nlations of this type can result in termination of the acreage in-\nvolved” and that Mr. Mittelstadt’s “re-enrollment/extension\noffer cannot be approved until this issue is settled.”11\n At a hearing on October 25, 2006, the FSA County Com-\nmittee discussed the issues raised by the inspections, and the\nnext day, the committee sent Mr. Mittelstadt a letter terminat-\ning Contract 653. The committee explained that, in 1997,\nMr. Mittelstadt’s acreage did not have “a ‘mixed hardwood\nstand of trees (more than one species of hardwood trees)’ be-\ncause of the ‘failed population of red oak.’”12 As a result, the\nFSA had assigned incorrectly an EBI score of fifty points upon\nreenrollment of the land in the CRP. Further, to “be eligible to\nbe placed in the CRP,” land must qualify under a covered cat-\negory, such as “[a]creage enrolled in CRP during the final\nyear of the CRP contract.” 7 C.F.R. § 1410.6(a). Because\nMr. Mittelstadt’s land was enrolled improperly under\n\n\n\n\n9 R.16-5 at 3.\n10 R.19 at 103 (Letter from Reuter to Mr. Mittelstadt (Sept. 21, 2006)).\n11 Id. at 103–04.\n12 R.16-5 at 4.\n\f6 No. 17-2447\n\nContract 653 in 1997, the committee also found it was not eli-\ngible for reenrollment under Contract 1710 in 2006.\n Mr. Mittelstadt appealed the County Committee’s deci-\nsion to the Wisconsin State FSA Committee. By letter dated\nAugust 13, 2007, the State FSA Committee upheld the County\nCommittee’s decision, finding that “[t]here are no areas of the\ncontract that qualify as ‘mixed hardwoods.’”13 The State Com-\nmittee concluded that “the scoring of the contract offer in 1997\nwas incorrect,” and that the land was “also ineligible for\nre-enrollment through the re-enrollment and extension pro-\ncess that was conducted in 2006 because the current contract\nwas not in compliance.”14\n C.\n Mr. Mittelstadt sought review from the USDA’s National\nAppeals Division, where the parties stipulated that the sole\nissue on appeal was the propriety of the eligibility determina-\ntion with respect to Contract 653 that had been made in 1997.\nThe Hearing Officer upheld the State Committee’s decision,\nbut, on further review, the Deputy Director reversed the de-\ncision. Because “the preponderance of the evidence show[ed]\nthat the placement of trees on Appellant’s land satisfied the\n‘mixed hardwoods established’ requirement for a CP11 prac-\ntice and warranted the assigned EBI score of fifty points,” the\nDeputy Director ordered the FSA to reinstate Contract 653.15\nHowever, the Deputy Director found no error with respect to\nthe FSA’s denial of reenrollment under Contract 1710. Given\n\n\n13 R.19 at 38.\n14 Id.\n15 R.16-5 at 7.\n\fNo. 17-2447 7\n\nthat Mr. Mittelstadt’s land “may not meet new standards such\nas a new definition of mixed hardwood stand or FSA other-\nwise may have a legitimate reason for not extending re-enroll-\nment,” the decision “was supported by applicable regulations\nand substantial evidence in the record.”16\n Mr. Mittelstadt sought reconsideration of the Deputy Di-\nrector’s decision, which the FSA Director denied. The Director\nexplained that “agency regulations at 7 C.F.R. § 1410.31(a)\nprovide that acceptance or rejection of any offer of land by an\nowner for CRP participation shall be in the sole discretion of\nthe CCC and offers may be rejected for any reason as deter-\nmined to accomplish the goals of the program.”17 According\nto the Director, “[w]hile not cited in the determination, this\nregulation was the basis” for the Deputy Director’s decision.18\nThus, “[o]nce FSA concluded that the property no longer had\nas high an EBI score as it once did, FSA could use that score\nto decide that funding a continuation of enrollment of the\nproperty was not as high a priority as funding other CRP con-\ntracts.”19\n\n\n D.\n Having exhausted his administrative appeals, Mr. Mittel-\nstadt filed a complaint in the district court. He asserted a\nclaim under the APA, contending that the decision denying\n\n\n16 Id.\n17 R.16-6 at 1.\n18 Id.\n19 Id.\n\f8 No. 17-2447\n\nhis application for reenrollment under Contract 1710 was ar-\nbitrary, capricious, and unlawful. In the alternative, he set out\na common law claim, asserting that the agency breached its\nobligations under Contract 1710. He later moved for sum-\nmary judgment on both counts of the complaint.\n The district court denied Mr. Mittelstadt’s motion for\nsummary judgment and affirmed the agency’s final decision.\nFirst, the district court rejected Mr. Mittelstadt’s contention\nthat the Deputy Director of the National Appeals Division\nhad abused his discretion by upholding the denial of reenroll-\nment under Contract 1710 despite the parties’ stipulation that\nthe sole issue on appeal was the propriety of the 1997 eligibil-\nity determination. Second, the district court rejected Mr. Mit-\ntelstadt’s assertion that the USDA had abused its discretion\nby denying reenrollment of his land in 2007 based on a con-\nservation standard adopted in 2006. Third, the district court\ndismissed Mr. Mittelstadt’s common law claim for breach of\ncontract, determining that no contract existed to support that\nclaim. The district court then entered judgment in favor of the\nSecretary on Mr. Mittelstadt’s APA and breach of contract\nclaims. Mr. Mittelstadt timely sought review of the district\ncourt’s decision.20\n\n\n20 The district court had jurisdiction over this case under the judicial re-\nview provision of the APA, which waives sovereign immunity for actions\n“seeking relief other than money damages and stating a claim that an\nagency or an officer or employee thereof acted or failed to act in an official\ncapacity or under color of legal authority.” 5 U.S.C. § 702. For purposes of\n§ 702, the Supreme Court has held that the mere “fact that a judicial rem-\nedy may require one party to pay money to another is not a sufficient rea-\nson to characterize the relief as ‘money damages.’” Bowen v. Massachusetts,\n487 U.S. 879, 893 (1988). Instead, the critical question is whether the plain-\ntiff seeks substitute or specific relief. Whereas “[d]amages are given to the\n\fNo. 17-2447 9\n\n II\n DISCUSSION\n We review the district court’s decision on summary judg-\nment de novo. Stable Invs. P’ship v. Vilsack, 775 F.3d 910, 915\n(7th Cir. 2015). In “an action for review of final action taken\nby a federal administrative agency, the ultimate question is\nwhether that action is ‘arbitrary, capricious, an abuse of dis-\ncretion, or otherwise not in accordance with the law.’” Id. (ci-\ntation omitted) (quoting 5 U.S.C. § 706(2)). To “answer[] that\nquestion, we rely on the same administrative record that was\n\nplaintiff to substitute for a suffered loss,” specific remedies “attempt to\ngive the plaintiff the very thing to which he was entitled.” Id. at 895 (quot-\ning Maryland Dep’t of Human Res. v. Dep’t of Health & Human Servs., 763\nF.2d 1441, 1446 (D.C. Cir. 1985)) (emphasis in original). Here, Mr. Mittel-\nstadt’s request for an order directing the Secretary “to pay all amounts due\nand owing under Contract 1710,” R.3 ¶ 152, was not a request for “money\ndamages” because Mr. Mittelstadt sought payments “not as compensation\nfor [the Secretary’s] failure to perform some other obligation,” but as “the\nvery thing to which he was entitled” under the CRP. Columbus Reg’l Hosp.\nv. FEMA, 708 F.3d 893, 896 (7th Cir. 2013) (quoting Bowen, 487 U.S. at 895).\nMr. Mittelstadt’s APA claim challenging the Secretary’s decision denying\nreenrollment seeks “relief other than money damages,” and is “therefore\nwithin the waiver of sovereign immunity in section 702.” Maryland Dep’t\nof Human Res. v. Dep’t of Health & Human Servs., 763 F.2d 1441, 1448 (D.C.\nCir. 1985) (quoting 5 U.S.C. § 702). Additionally, because his breach of con-\ntract claim is, at base, an alternative request for administrative relief di-\nrecting the Secretary to make the payments to which Mr. Mittelstadt\nwould have been entitled under Contract 1710, this claim is simply a dif-\nferent way of characterizing his request for “the very thing to which he\nwas entitled” under the CRP. Columbus Reg’l Hosp., 708 F.3d at 896 (quot-\ning Bowen, 487 U.S. at 895). Jurisdiction over Mr. Mittelstadt’s breach of\ncontract claim was therefore proper under § 702. We have jurisdiction over\nthis appeal from the district court’s entry of summary judgment under 28\nU.S.C. § 1291.\n\f10 No. 17-2447\n\nbefore the district court and render an independent judgment\nas to whether the agency acted unreasonably.” Id. Under this\n“deferential standard,” we “will uphold a decision of less\nthan ideal clarity if the agency’s path may reasonably be dis-\ncerned.” St. Clair v. Sec’y of Navy, 155 F.3d 848, 851 (7th Cir.\n1998) (internal quotation marks omitted).\n A.\n We begin with an examination of the governing statutory\nscheme. As part of the Food Security Act of 1985,21 Congress\nestablished the CRP. This program incentivizes landowners\nto remove environmentally sensitive land from agricultural\nproduction in return for annual rental payments from the\nUSDA. S. Rep. 99-145, at 1971 (1985). The impetus for the de-\nvelopment of the CRP was an increased concern about soil\nerosion. Id. In 1982, the National Resources Inventory22 had\ndetermined that almost fifty percent of erosion occurred on\nonly ten percent of cropland in the United States. Id. The Soil\nConservation Service projected that the CRP would “reduce\nwind and water erosion on these acres by an average of nearly\n20 tons per acre per year.” Id. (capitalization omitted). Ac-\ncordingly, Congress directed the Secretary to “formulate and\ncarry out” the CRP by awarding contracts to encourage land-\nowners “to conserve and improve the soil, water, and wildlife\nresources of such land and to address issues raised by State,\n\n\n21 Pub. L. No. 99-198, §§ 1201, 1231–1236, 99 Stat. 1354, 1504–05, 1509–14\n(codified as amended at 16 U.S.C. §§ 3801, 3831–3836).\n22 Administered by the NRCS, the National Resources Inventory is a “sta-\ntistically-based survey” designed to “assess conditions and trends of soil,\nwater, and related resources on nonfederal lands in the United States.” 7\nC.F.R. § 601.1(f)(1)(v).\n\fNo. 17-2447 11\n\nregional, and national conservation initiatives.” 16 U.S.C.\n§ 3831(a).\n The USDA oversees the CRP, with funding provided by\nthe CCC, an entity owned and operated by the government.\n16 U.S.C. § 3841(a). Together with the FSA, the CCC is respon-\nsible for implementing the regulations governing the CRP. 7\nC.F.R. § 1410.1(a). The Agricultural Stabilization and Conser-\nvation Service, which operates through state and county com-\nmittees, administers the CRP on behalf of the CCC.\n The FSA and the Agricultural Stabilization and Conserva-\ntion Service also have issued, for use by the state and county\ncommittees, handbooks detailing the procedures and require-\nments for implementing and participating in the CRP. These\nhandbooks, which were not published in the Federal Register\nand therefore were not promulgated according to the require-\nments of the APA, are interpretive only and do not have the\nforce or effect of official regulations.23\n The statute limits the type and total acreage of land that\ncan be enrolled in the CRP. Land eligible for enrollment in-\ncludes certain highly erodible cropland, marginal pasture\nland, grasslands, and, at the Secretary’s determination, other-\nwise ineligible cropland that poses an environmental threat.\n16 U.S.C. § 3831(b). During fiscal year 2018, the Secretary\ncould maintain no more than twenty-four million acres of\nland in the program. Id. § 3831(d)(1)(E). Additionally, the\n\n\n23 See Westcott v. U.S. Dep’t of Agric., 765 F.2d 121, 122 (8th Cir. 1985) (per\ncuriam); see also Thomas v. Cty. Office Comm. of Cameron Cty., 327 F. Supp.\n1244, 1253 (S.D. Tex. 1971); Graham v. Lawrimore, 185 F. Supp. 761, 764\n(E.D.S.C. 1960); Hawkins v. State Agric. Stabilization & Conservation Comm.,\n149 F. Supp. 681, 686 (S.D. Tex. 1957).\n\f12 No. 17-2447\n\nSecretary cannot enroll more than twenty-five percent of the\ncropland in any county unless he determines that enrolling a\nlarger percentage “would not adversely affect the local econ-\nomy.” 16 U.S.C. § 3844(f).\n Landowners who wish to participate in the CRP must en-\ngage in a bid system. According to the legislative history, the\nstatute utilizes this system because “the competitive bid sys-\ntem is the most cost-effective means of identifying our least\nproductive and most erosion prone acreage, while at the same\ntime minimizing cost to the U.S. Treasury.” S. Rep. 99-145, at\n1971 (capitalization omitted). Congress determines, for a\ngiven year, the maximum acreage permitted to be enrolled in\nthe CRP each time it amends the authorizing statute.24 Indi-\nvidual rental payments are capped at $50,000 per year. 16\nU.S.C. § 3834(g)(1).\n To participate in the bidding process, landowners submit\noffers to the CCC indicating “the amounts they are willing to\naccept as rental payments to enroll their acreage in the CRP.”\n7 C.F.R. § 1410.31(a). The CCC may evaluate offers “on a com-\npetitive basis in which the offers selected will be those where\nthe greatest environmental benefits relative to cost are gener-\nated.” Id. In evaluating offers, the agency employs a national\nEBI, which “provides a relative ranking of estimated environ-\nmental benefits and cost for land offered for CRP.”25 “Ac-\nceptance or rejection of any offer” is “in the sole discretion of\nthe CCC[,] and offers may be rejected for any reason as\n\n\n24 See Agriculture Improvement Act of 2018, Pub. L. No. 115-334, §\n 2201(c)\n(amending 16 U.S.C. § 3831(d)); Agricultural Act of 2014, Pub. L. No.\n113-79, § 2001(d) (same).\n25 R.16-1 at 679.\n\fNo. 17-2447 13\n\ndetermined needed to accomplish the goals of CRP.” 7 C.F.R.\n§ 1410.31(a). When evaluating contract offers, the CCC may\nconsider such factors as soil erosion, water quality, wildlife\nbenefits, soil productivity, the “[l]ikelihood that enrolled land\nwill remain in non-agriculture use beyond the contract pe-\nriod,” air quality, and the cost of enrolling the land in the CRP.\nId. § 1410.31(b). Offers to enroll in the CRP are “irrevocable\nfor such period as is determined and announced by the Dep-\nuty Administrator” of the FSA. 7 C.F.R. § 1410.32(c)(2). If an\napplicant revokes his offer during the irrevocable period, he\nmay be liable to the CCC for liquidated damages. Id.\n Following CCC approval, the USDA awards CRP con-\ntracts for terms between ten and fifteen years, depending on\nthe type of land involved. 16 U.S.C. § 3831(e)(1).26 In return\nfor converting their land to less intensive uses, landowners\nreceive annual rental payments. 16 U.S.C. § 3833(a)(2). The\namounts of these payments are determined when the land-\nowners submit bids for CRP contracts. 16 U.S.C.\n§ 3834(d)(2)(A)(i).\n Participants in the CRP must obtain and implement a con-\nservation plan outlining required conservation practices for\nthe enrolled land. The conservation plan is considered part of\nthe CRP contract, 7 C.F.R. § 1410.20(a)(2), and must be ap-\nproved by the conservation district in which the land is\n\n26 Specifically, “[c]ontracts with land devoted to hardwood trees, shelter-\nbelts, windbreaks, or wildlife corridors will be for a term of 10 years to 15\nyears, as requested by the applicant.” 7 C.F.R. § 1410.7(a). By contrast,\n“[o]ther general and continuous signup contracts … will be for a term of\n10 to 15 years, as determined by the Deputy Administrator.” Id.\n§ 1410.7(b). “Grassland signup contracts will be for a term of 15 years.” Id.\n§ 1410.7(c).\n\f14 No. 17-2447\n\nlocated, 7 C.F.R. §§ 1410.3(b), 1410.22(a). Landowners must\n“[e]stablish and maintain” the required vegetative cover and\nthe required practices on the enrolled land, and must “take\nother actions that may be required by CCC to achieve the de-\nsired environmental benefits and to maintain the productive\ncapability of the soil throughout the contract period.” 7 C.F.R.\n§ 1410.20(a)(6). All conservation plans and revisions to such\nplans are subject to the approval of the Deputy Administrator\nof the FSA. 7 C.F.R. § 1410.22(e). Subject to fund availability,\nthe CCC must “[s]hare up to 50 percent of the cost” of estab-\nlishing conservation practices with CRP participants. 7 C.F.R.\n§ 1410.21(a). Rental payments combined with cost-sharing are\ndesigned to assure landowners of a return on the land with-\nout having to risk large sums of money to adopt conservation\npractices.27\n The CCC retains the authority to modify or terminate an\nexisting CRP contract. Specifically, the CCC can modify a CRP\ncontract if the Deputy Administrator determines that,\nthrough no fault of the participant, the “installed practice\nfailed to adequately provide for the desired environmental\nbenefit” or “deteriorated,” and that “[a]nother practice will\nachieve at least the same level of environmental benefit.” 7\nC.F.R. § 1410.33(b). Additionally, the CCC can terminate a\nCRP contract before expiration of the term if, among other\ngrounds, “[t]he participant is not in compliance with the\nterms and conditions of the contract,” “[t]he CRP practice fails\nor is not established after a certain time period,” the “contract\nwas approved based on erroneous eligibility determina-\ntions,” or “[t]he Deputy Administrator determines that such\n\n27See Michael W. Strain, Student Survey, The Conservation Reserve: A Bold\nStep Towards the Future, 31 S.D. L. Rev. 523, 529 (1986).\n\fNo. 17-2447 15\n\na termination is needed in the public interest, or is otherwise\nnecessary and appropriate to further the goals of CRP.” 7\nC.F.R. § 1410.32(f).\n This statutory and regulatory scheme places considerable\ndiscretion over CRP participation in the hands of the FSA. The\nimplementing regulations afford the agency broad discretion\nto evaluate offers for enrollment and reenrollment in the pro-\ngram:\n [O]ffers may, to the extent practicable, be evalu-\n ated on a competitive basis in which the offers\n selected will be those where the greatest envi-\n ronmental benefits relative to cost are gener-\n ated … . Acceptance or rejection of any offer,\n however, shall be in the sole discretion of the\n CCC and offers may be rejected for any reason\n as determined needed to accomplish the goals\n of CRP.\n7 C.F.R. § 1410.31(a). Although we have had no occasion to\ndescribe the scope of discretion under this particular regula-\ntion, our cases involving other statutory and regulatory\ngrants of “sole discretion” confirm that this language confers\nwide latitude upon the relevant actor.28\n\n\n\n28 See, e.g., Mahler v. U.S. Forest Serv., 128 F.3d 573, 577–78 (7th Cir. 1997)\n(concluding, where the Rescissions Act of 1995 required the Secretary of\nAgriculture to prepare an environmental assessment and a biological eval-\nuation “at the sole discretion of the Secretary concerned and to the extent\nthat the Secretary concerned considers appropriate and feasible,” that\n“this language clearly authorize[d] the Secretary to permit a shorter pe-\nriod for public comment than that usually required under the Public Par-\nticipation Law” (emphasis added)).\n\f16 No. 17-2447\n\n B.\n With this statutory and regulatory background in mind,\nwe turn first to Mr. Mittelstadt’s contention that the agency\nabused its discretion because it had not defined “mixed hard-\nwoods” when it considered his application for reenrollment\nunder Contract 653 in 1997 or under Contract 1710 in 2006.\nWe also consider his related argument that the agency’s ap-\nplication of a new interpretation of “mixed hardwoods,”\nadopted in 2006, when it denied his request for reenrollment\nunder Contract 1710 was an abuse of discretion.\n Here, the Secretary “readily acknowledge[d] that,\nthroughout the entire relevant time period, there was never a\npublished definition of ‘mixed hardwoods’ in FSA’s Hand-\nbook, in the regulations, or elsewhere.”29 Nevertheless, to\nevaluate Mr. Mittelstadt’s 2006 application for reenrollment,\nthe agency interpreted “mixed hardwoods” to mean “two\nspecies of hardwoods planted together in the same rows.”30\nGiven the great discretion vested in the Secretary to obtain\noptimal environmental return for every dollar appropriated\nfor the CRP, the FSA clearly had the capability to tighten the\ndefinition of “mixed hardwoods” for new contract periods.31\nThe very nature of the program affords the Secretary the au-\nthority to change the terms and conditions of participation in\n\n\n29 Appellee’s Br. 35.\n30 R.9 ¶ 70.\n31 Cf. Paragon Health Network, Inc. v. Thompson, 251 F.3d 1141, 1147 (7th Cir.\n\n2001) (noting that “Congress is presumed to have delegated the primary\npower to fill regulatory ambiguities to the agency, and courts owe defer-\nence to agency decisions that clarify a regulation regardless of the fact that\nthe agency waited to exercise this power”).\n\fNo. 17-2447 17\n\norder to achieve, given the resources available, the most ad-\nvantageous result. The USDA’s policy, therefore, was to\nmaintain a competitive program that allowed the Secretary to\nselect, based on currently available funding, the best land\navailable to attain the goals of the program. The agency did\nnot have to contract for the same conservation measures at the\nsame price upon each reenrollment.\n The Secretary’s decision to limit program participation to\nland with a different pattern of hardwoods, a pattern that he\ndeemed more favorable to the conservation ends of the pro-\ngram, cannot be characterized fairly as the reversal of an\nagency policy. Because there was no previous specific defini-\ntion applicable to all future contracts set forth in the regula-\ntions or even in the FSA Handbook, the Secretary did not re-\nverse a governing policy.32 For the same reason, the 2006 re-\nquirement cannot be characterized as such “a sudden and un-\nexpected change in agency policy” as to be arbitrary, capri-\ncious, or an abuse of discretion.33 The new requirement is\ngrounded firmly in the governing statutes and regulations\nand implements the Secretary’s decision that such a criterion\n\n\n32 Cf. Friends of the Boundary Waters Wilderness v. Dombeck, 164 F.3d 1115,\n1123 (8th Cir. 1999) (holding that, since no prior Forest Service or USDA\nplans provided a definition of the term “guest” for purposes of motorboat\nuse restrictions, the definition newly provided by the Forest Service to\navoid abuses of the motorboat use quota system could not “be considered\nas reversing a prior agency policy” and was entitled to deference).\n33 See id. (observing that “‘the mere fact that an agency interpretation con-\n\ntradicts a prior agency position is not fatal,’ unless the new position is a\nsudden and unexpected change in agency policy that can be characterized\nas arbitrary, capricious, or an abuse of discretion” (quoting Smiley v. Citi-\nbank (S.D.), N.A., 517 U.S. 735, 742 (1996)).\n\f18 No. 17-2447\n\nwill ensure that the available government funds are imple-\nmented in the most effective manner.34\n Mr. Mittelstadt conceded that “there were never areas of\n[his] acreage planted to more than one species of hard-\nwood.”35 He had understood that “the terminology ‘mixed\nhardwoods’ mean[t] only 1 hardwood species ‘mixed’ with\npine.”36 Accordingly, in 1989, he planted three sections of\ntrees on his land: (1) walnut and white pine trees, (2) red oak\nand white pine trees, and (3) solely white pine trees.37 Pine\ntrees are softwoods, whereas walnut and red oak trees are\nhardwoods, so that no section he planted had more than one\nspecies of hardwood tree mixed with pine. It follows that, by\n2006, his acreage did not meet the FSA’s new requirement,\nwhich required that “there be at least 2 species of hardwoods\n\n34 Mr. Mittelstadt asserts that the FSA was “affirmatively required” to in-\nform him of the new interpretation of “mixed hardwoods” and to “help[]\nhim craft a new plan that would elevate [Tract 9073’s] EBI score by chang-\ning the arrangement of hardwood species.” Appellant’s Br. 32. He relies\non the FSA Handbook, which states that the “FSA will review EBI scoring\nparameters with the producers and encourage the planting of cover types\nand conservation measures, if appropriate, that will provide higher envi-\nronmental benefits.” R.16-1 at 679. However, the agency did not discover\nthat Mr. Mittelstadt’s land did not meet the new requirement for “mixed\nhardwoods” until he began the reenrollment process, at which point the\nmaintenance inspections revealed CRP violations. The agency informed\nhim that, to reenroll his land, he could cure the violations by planting two\nor more species of hardwood trees mixed with a softwood tree. The FSA\nHandbook, which does not confer a legal right on Mr. Mittelstadt to par-\nticipate in the program, did not require more.\n35 R.19 at 36–37.\n36 Id. at 37.\n37 Id. at 28.\n\fNo. 17-2447 19\n\nmixed into the rows of hardwoods.”38 The FSA therefore did\nnot abuse its discretion when it determined that Mr. Mittel-\nstadt’s land did not satisfy the 2006 requirement of “mixed\nhardwoods.”39\n C.\n\n38 Id. at 37. Relatedly, Mr. Mittelstadt submits that it was error for the FSA\n\nnot to recalculate the EBI score for Tract 9073 using its new interpretation\nof “mixed hardwoods.” At multiple stages of the review process, how-\never, the agency concluded that there were “no areas of the contract that\nqualify as ‘mixed hardwoods’” under the 2006 requirement. R.19 at 38; see\nalso R.16-4 at 5. Nor does Mr. Mittelstadt contend that he engaged in other\nconservation practices that would contribute to Tract 9073’s EBI score. Ac-\ncordingly, no formal recalculation was needed to conclude that, under the\nnew interpretation, Tract 9073 “no longer had as high an EBI score as it\nonce did.” R.16-6 at 1. The FSA’s failure to formally recalculate the EBI\nscore for Tract 9073 was not an abuse of discretion.\n39 Mr. Mittelstadt’s claim that complying with the FSA’s new interpreta-\ntion of “mixed hardwoods” would have brought him in violation of the\nexisting conservation plan under either Contract 653 or Contract 1710 is\nunsubstantiated. The 1997 conservation plan for Contract 653 instructed:\n CRP-CP11. The existing tree planting will not be man-\n aged for Christmas trees and will be protected from fire\n and from grazing by domestic livestock for the duration\n of the CRP contract.\nR.19-2 at 13. Similarly, the 2006 conservation plan for Contract 1710 stated:\n CRP-CP11. Vegetative Cover, Trees Already Estab-\n lished. … The existing tree planting will not be managed\n for Christmas trees and will be protected from fire and\n from grazing by livestock for the duration of the CRP con-\n tract. Spot treat for weed and brush control … .\nR.19-1 at 39. Nothing in either conservation plan suggests that Mr. Mittel-\nstadt would have violated those terms by planting “two species of hard-\nwoods … together in the same rows.” R.9 ¶ 70.\n\f20 No. 17-2447\n\n We turn next to Mr. Mittelstadt’s contention that the FSA\nerroneously relied on 7 C.F.R. § 1410.31(a) to uphold the\nCCC’s denial of reenrollment under Contract 1710. According\nto Mr. Mittelstadt, this provision “has nothing to do with the\npost-award process through which Tract 9073 was disquali-\nfied from Contract 1710,” and “instead describes the\npre-award process” through which Contract 1710 was\nawarded.40 We cannot accept this argument because it is\npremised on a nonexistent temporal distinction.\n The FSA Handbook instructs that, “[w]hen the producer\nis ready to submit an offer, County Offices shall provide … to\nthe producer” Form CRP-1.41 Once a producer submits an\n\n\n\n40 Appellant’s Br. 35–36.\n41 R.16-1 at 179. As an alternative theory of recovery, Mr. Mittelstadt as-\nserts that, when the agency sent him Form CRP-1 for Contract 1710, it had\naccepted his offer of reenrollment, and there was a binding contract. But\nthat argument ignores the FSA’s express description of Form CRP-1 as a\nform document that constitutes the producer’s “offer” of enrollment in the\nCRP, not the agency’s acceptance of that offer. Further, the FSA Handbook\nstates that “[p]roducers withdrawing CRP-1 during the irrevocable period\nshall be subject to liquidated damages,” id., and Form CRP-1 reiterates\nthat, by signing the form, the participant “agrees to pay such liquidated\ndamages … if the Participant withdraws prior to CCC acceptance or rejec-\ntion.” R.19-1 at 45. These provisions confirm that Form CRP-1 constitutes\nan offer to be considered by the CCC, not a binding contract. Given that\nthe regulations similarly require that a producer pay liquidated damages\nto the CCC if he “revokes an offer during the period in which the offer is\nirrevocable,” 7 C.F.R. § 1410.32(c)(2) (emphases added), the prospect of\nhaving to pay liquidated damages provides no support to Mr. Mittel-\nstadt’s position that a binding contract existed. Finally, the FSA Handbook\nrequires that Form CRP-1 “be signed and dated by all required signato-\nries,” R.16-2 at 183, but Mr. Mittelstadt never received a countersigned\n\fNo. 17-2447 21\n\noffer on Form CRP-1, the FSA County Committee “shall sub-\nmit all offers … to the national level for review and evalua-\ntion.”42 The regulation at issue, 7 C.F.R. § 1410.31(a), confers\n“sole discretion” upon the CCC to evaluate offers of enroll-\nment in the CRP “on a competitive basis in which the offers\nselected will be those where the greatest environmental ben-\nefits relative to cost are generated.” The regulations further\nprovide that, “[i]n order to be eligible to be placed in the CRP,\nland must” qualify under an enumerated eligibility category,\nsuch as “[a]creage enrolled in CRP during the final year of the\nCRP contract.” 7 C.F.R. § 1410.6(a).\n In 2006, when the FSA County Committee concluded that\nthe 1997 eligibility determination had been incorrect and ter-\nminated Contract 653, Tract 9073 no longer qualified as eligi-\nble “[a]creage enrolled in CRP.” Id. However, when the Dep-\nuty Director of the National Appeals Division reversed that\ndetermination and reinstated Contract 653, the effect of his or-\nder was only to reinstate Tract 9073’s ground for eligibility\nunder 7 C.F.R. § 1410.6(a)(3).43 Mr. Mittelstadt’s bid to\n\n\ncopy of Contract 1710. Because there was no binding contract, Mr. Mittel-\nstadt cannot state a claim for breach.\n42 R.16-1 at 185 (emphasis omitted).\n43 Mr. Mittelstadt further contends that the Deputy Director’s ruling on\nthe reenrollment of Contract 1710 was improper because, at the pre-hear-\ning before the Hearing Officer, “the parties stipulated that the sole issue\non appeal was the erroneous eligibility determination that was made in\n1997.” R.16-5 at 4. The Hearing Officer found that the “FSA correctly de-\ntermined that Appellant did not establish a mixed stand of hardwood\ntrees on the contract acreage” and that “Appellant based his request for\nCRP reenrollment under contract 1710 on the same inaccurate EBI scoring\nused in CRP contract 653.” R.16-4 at 5–6. Accordingly, the Hearing Officer\ndetermined both that “FSA correctly terminated contract 653 because of\n\f22 No. 17-2447\n\nreenroll was still subject to the CCC’s discretion to evaluate\nhis offer based on its relative competitiveness, see 7 C.F.R.\n§ 1410.31(a), and actual reenrollment required CCC approval.\nThe FSA Director recognized precisely this degree of discre-\ntion when he denied Mr. Mittelstadt’s request for reconsider-\nation, explaining that “agency regulations at 7 C.F.R.\n§ 1410.31(a) provide that acceptance or rejection of any offer\nof land by an owner for CRP participation shall be in the sole\ndiscretion of the CCC and offers may be rejected for any rea-\nson as determined to accomplish the goals of the program.”44\nAccording to the Director, “[w]hile not cited in the determi-\nnation, this regulation was the basis” for the Deputy Direc-\ntor’s decision.45 It was no abuse of discretion for the FSA to\nrely on 7 C.F.R. § 1410.31(a) to uphold the CCC’s decision.\n Relatedly, Mr. Mittelstadt claims that the agency was first\nrequired to change his conservation plan to comply with its\nnew interpretation of “mixed hardwoods” and that, if he “re-\nfused to conform Tract 9073 to the corrected Conservation\n\n\n\n\nan inaccurate EBI score” and that FSA “correctly denied Appellant’s reen-\nrollment request under CRP contract 1710.” Id. at 6. Thus, the Deputy Di-\nrector’s review of the Hearing Officer’s decision necessarily encompassed\nboth the Hearing Officer’s findings with regard to the termination of Con-\ntract 653 and the reenrollment under Contract 1710, which were “based”\non “the same inaccurate EBI scor[e].” Id. The district court correctly con-\ncluded that “the parties’ stipulation … ma[de] little practical sense on its\nface,” R.25 at 18, given that the Deputy Director could not properly review\nthe Hearing Officer’s decision without considering the grounds for that\ndecision in full.\n44 R.16-6 at 1.\n45 Id.\n\fNo. 17-2447 23\n\nPlan, the Tract would then be in violation.”46 But Mr. Mittel-\nstadt confuses the order of procedure required. The FSA\nHandbook instructs that, “[i]f [an] offer is determined ac-\nceptable,” then “a conservation plan must be developed by\nNRCS … and approved by the Conservation District before\nCRP-1 can be approved” by the FSA County Committee.47 Be-\ncause the FSA never accepted Mr. Mittelstadt’s offer to reen-\nroll his land, the agency was under no obligation to develop\na new conservation plan for Tract 9073 before denying reen-\nrollment. The FSA’s course of proceeding simply was not an\nabuse of discretion.\n Conclusion\n For the foregoing reasons, we affirm the judgment of the\ndistrict court.\n AFFIRMED\n\n\n\n\n46 Appellant’s Br. 49 (emphasis in original).\n47 R.16-1 at 186.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4358934/", "author_raw": "Kenneth Francis Ripple"}]}	RIPPLE	SYKES	SCUDDER	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4581681/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Mark MITTELSTADT, Plaintiff-Appellant, v. Sonny PERDUE, Secretary of Agriculture, Defendant-Appellee.\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-15\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-2447\nMARK MITTELSTADT,\n Plaintiff-Appellant,\n v.\n\nSONNY PERDUE, Secretary of Agriculture,\n Defendant-Appellee.\n ____________________\n\n Appeal from the United States District Court for the\n Western District of Wisconsin.\n No. 3:15-cv-00725-wmc — William M. Conley, Judge.\n ____________________\n\n ARGUED SEPTEMBER 28, 2018 — DECIDED JANUARY 15, 2019\n ____________________\n\n Before RIPPLE, SYKES, and SCUDDER, Circuit Judges.\n RIPPLE, Circuit Judge. Mark Mittelstadt owned a tract of\nland in Richland County, Wisconsin, that was enrolled in the\nConservation Reserve Program (“CRP”), administered by the\nUnited States Department of Agriculture (“USDA”), from\n1987 to 2006. Participants in the CRP agree to remove environ-\nmentally sensitive land from agricultural production in return\nfor annual rental payments from the USDA. In 2006, the\nagency denied Mr. Mittelstadt’s application to reenroll his\n\f2 No. 17-2447\n\nland in the CRP. After exhausting his administrative appeals,\nhe brought this action against the Secretary of the USDA (“the\nSecretary”). He asserted one claim under Section 702 of the\nAdministrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq.,\nchallenging the Secretary’s final decision denying reenroll-\nment, and one common law claim for breach of contract.\nMr. Mittelstadt moved for summary judgment in the district\ncourt, seeking an order directing reenrollment of his land in\nthe CRP and awarding monetary relief for the alleged breach\nof contract. The district court denied his motion for summary\njudgment, aﬃrmed the Secretary’s rulings, and entered judg-\nment in favor of the Secretary on Mr. Mittelstadt’s APA and\nbreach of contract claims. Mr. Mittelstadt now appeals the\ndistrict court’s decision.\n Under the regulations governing the CRP, the USDA has\nbroad discretion to evaluate oﬀers of enrollment in the pro-\ngram on a competitive basis by considering the environmen-\ntal benefits of a producer’s land relative to its costs. Given the\nagency’s wide latitude, we conclude that the Farm Services\nAgency (“FSA”) did not abuse its discretion when it denied\nreenrollment of Mr. Mittelstadt’s land. Moreover, because he\nnever entered a new contract with the agency, there was no\nbreach of contract. We therefore aﬃrm the judgment of the\ndistrict court.\n I\n A.\n In 1988, Mr. Mittelstadt purchased a tract of land in Rich-\nland County, Wisconsin (“Tract 9073”), that was subject to a\nCRP contract for the period 1987 through 1996. To comply\nwith a revised conservation plan, Mr. Mittelstadt planted\n\fNo. 17-2447 3\n\nwhite pine, walnut, and red oak trees on the land in 1989. A\nCRP review later that year determined that Mr. Mittelstadt\nhad completed all items in the conservation plan. Another\nCRP maintenance inspection in 1995 found no problems with\nthe land. In 1996, the Commodity Credit Corporation\n(“CCC”) extended the existing CRP contract for one year, to\nrun from October 1, 1996, through September 30, 1997.\n In 1997, Mr. Mittelstadt applied to reenroll his land in the\nprogram, stating on the application that Tract 9073 had a con-\nservation practice of CP11, or “vegetative cover—trees—al-\nready established.”1 Relying on the information in his appli-\ncation, the FSA assigned his land an environmental benefits\nindex (“EBI”) score of fifty points.2 This EBI score meant that\nthe conservation practices on the land included “[p]ine estab-\nlished with less than 500 trees per acre with strips of native\nherbaceous and shrub plantings best suited for wildlife in the\narea, mixed hardwoods established, or longleaf pine.”3 The\nFSA approved the new contract (“Contract 653”), to be effec-\ntive from 1998 to 2007. A 2002 field status review of the prop-\nerty found no violations, noting, “Trees are growing and look-\ning good.”4\n In 2006, Mr. Mittelstadt began the reenrollment process by\npaying for a spot-check inspection of Tract 9073. The inspec-\ntion found no violations, noting “62.9 CP11 Tre[es] … already\n\n1 R.16-5 at 2.\n2 The FSA relies on a national EBI to rank offers for enrollment in the CRP\n\nbased on their estimated environmental benefits and costs. See R.16-1 at\n679.\n3 R.16-5 at 3.\n4 Id.\n\f4 No. 17-2447\n\nest” and “good.”5 The Natural Resources Conservation Ser-\nvice (“NRCS”) sent Mr. Mittelstadt Contract 1710, a form CRP\ncontract for the term October 1, 2007, to September 30, 2017,\nwhich Mr. Mittelstadt signed on July 26, 2006.6 On August 19,\n2006, Mr. Mittelstadt signed a revised version of the contract,\namended to reflect the correct acreage of Tract 9073.\n In August 2006, the NRCS sent Mr. Mittelstadt a conserva-\ntion plan for Tract 9073. The plan “identified the conservation\npractice as CP11, a ‘mixed stand (2 species) of hardwoods best\nsuited for wildlife in the area.’”7 Mr. Mittelstadt signed the\nplan on August 24, 2006, and, on September 1, 2006, the Rich-\nland County Conservation Department approved it. The\nNRCS signed off on the plan on September 5, 2006, as did the\nFSA on September 13, 2006.\n B.\n On or around September 13, 2006, Jared Reuter, the\nCounty Executive Director of the Richland County FSA,\nsigned the amended version of Contract 1710 on behalf of the\nCCC. Reuter’s signature was later whited out,8 however, and\nMr. Mittelstadt never received a countersigned copy of Con-\ntract 1710. On September 14 and 16, 2006, Reuter conducted\ntwo maintenance inspections of Mr. Mittelstadt’s land. By let-\nter dated September 21, 2006, the FSA County Committee\n\n\n5 Id.\n6 The CCC never countersigned the original version of Contract 1710.\n7 R.16-5 at 3.\n8 The Secretary contends that Reuter likely whited out his signature after\ninspecting Mr. Mittelstadt’s property and discovering CRP violations on\nTract 9073. Appellee’s Br. 8 n.2.\n\fNo. 17-2447 5\n\nnotified Mr. Mittelstadt that the inspections revealed CRP vi-\nolations on Tract 9073. Aerial photos taken in 2005 showed\nthat three areas of the acreage had “suffered tree loss that the\nfield reporter did not originally report during the re-enroll-\nment compliance check.”9 Reuter also found that very few red\noak trees “were present from the original planting,” and\n“[o]ne area with the most red oak present had less than 100\nplanted red oak trees present.”10 The letter warned that “[v]io-\nlations of this type can result in termination of the acreage in-\nvolved” and that Mr. Mittelstadt’s “re-enrollment/extension\noffer cannot be approved until this issue is settled.”11\n At a hearing on October 25, 2006, the FSA County Com-\nmittee discussed the issues raised by the inspections, and the\nnext day, the committee sent Mr. Mittelstadt a letter terminat-\ning Contract 653. The committee explained that, in 1997,\nMr. Mittelstadt’s acreage did not have “a ‘mixed hardwood\nstand of trees (more than one species of hardwood trees)’ be-\ncause of the ‘failed population of red oak.’”12 As a result, the\nFSA had assigned incorrectly an EBI score of fifty points upon\nreenrollment of the land in the CRP. Further, to “be eligible to\nbe placed in the CRP,” land must qualify under a covered cat-\negory, such as “[a]creage enrolled in CRP during the final\nyear of the CRP contract.” 7 C.F.R. § 1410.6(a). Because\nMr. Mittelstadt’s land was enrolled improperly under\n\n\n\n\n9 R.16-5 at 3.\n10 R.19 at 103 (Letter from Reuter to Mr. Mittelstadt (Sept. 21, 2006)).\n11 Id. at 103–04.\n12 R.16-5 at 4.\n\f6 No. 17-2447\n\nContract 653 in 1997, the committee also found it was not eli-\ngible for reenrollment under Contract 1710 in 2006.\n Mr. Mittelstadt appealed the County Committee’s deci-\nsion to the Wisconsin State FSA Committee. By letter dated\nAugust 13, 2007, the State FSA Committee upheld the County\nCommittee’s decision, finding that “[t]here are no areas of the\ncontract that qualify as ‘mixed hardwoods.’”13 The State Com-\nmittee concluded that “the scoring of the contract offer in 1997\nwas incorrect,” and that the land was “also ineligible for\nre-enrollment through the re-enrollment and extension pro-\ncess that was conducted in 2006 because the current contract\nwas not in compliance.”14\n C.\n Mr. Mittelstadt sought review from the USDA’s National\nAppeals Division, where the parties stipulated that the sole\nissue on appeal was the propriety of the eligibility determina-\ntion with respect to Contract 653 that had been made in 1997.\nThe Hearing Officer upheld the State Committee’s decision,\nbut, on further review, the Deputy Director reversed the de-\ncision. Because “the preponderance of the evidence show[ed]\nthat the placement of trees on Appellant’s land satisfied the\n‘mixed hardwoods established’ requirement for a CP11 prac-\ntice and warranted the assigned EBI score of fifty points,” the\nDeputy Director ordered the FSA to reinstate Contract 653.15\nHowever, the Deputy Director found no error with respect to\nthe FSA’s denial of reenrollment under Contract 1710. Given\n\n\n13 R.19 at 38.\n14 Id.\n15 R.16-5 at 7.\n\fNo. 17-2447 7\n\nthat Mr. Mittelstadt’s land “may not meet new standards such\nas a new definition of mixed hardwood stand or FSA other-\nwise may have a legitimate reason for not extending re-enroll-\nment,” the decision “was supported by applicable regulations\nand substantial evidence in the record.”16\n Mr. Mittelstadt sought reconsideration of the Deputy Di-\nrector’s decision, which the FSA Director denied. The Director\nexplained that “agency regulations at 7 C.F.R. § 1410.31(a)\nprovide that acceptance or rejection of any offer of land by an\nowner for CRP participation shall be in the sole discretion of\nthe CCC and offers may be rejected for any reason as deter-\nmined to accomplish the goals of the program.”17 According\nto the Director, “[w]hile not cited in the determination, this\nregulation was the basis” for the Deputy Director’s decision.18\nThus, “[o]nce FSA concluded that the property no longer had\nas high an EBI score as it once did, FSA could use that score\nto decide that funding a continuation of enrollment of the\nproperty was not as high a priority as funding other CRP con-\ntracts.”19\n\n\n D.\n Having exhausted his administrative appeals, Mr. Mittel-\nstadt filed a complaint in the district court. He asserted a\nclaim under the APA, contending that the decision denying\n\n\n16 Id.\n17 R.16-6 at 1.\n18 Id.\n19 Id.\n\f8 No. 17-2447\n\nhis application for reenrollment under Contract 1710 was ar-\nbitrary, capricious, and unlawful. In the alternative, he set out\na common law claim, asserting that the agency breached its\nobligations under Contract 1710. He later moved for sum-\nmary judgment on both counts of the complaint.\n The district court denied Mr. Mittelstadt’s motion for\nsummary judgment and affirmed the agency’s final decision.\nFirst, the district court rejected Mr. Mittelstadt’s contention\nthat the Deputy Director of the National Appeals Division\nhad abused his discretion by upholding the denial of reenroll-\nment under Contract 1710 despite the parties’ stipulation that\nthe sole issue on appeal was the propriety of the 1997 eligibil-\nity determination. Second, the district court rejected Mr. Mit-\ntelstadt’s assertion that the USDA had abused its discretion\nby denying reenrollment of his land in 2007 based on a con-\nservation standard adopted in 2006. Third, the district court\ndismissed Mr. Mittelstadt’s common law claim for breach of\ncontract, determining that no contract existed to support that\nclaim. The district court then entered judgment in favor of the\nSecretary on Mr. Mittelstadt’s APA and breach of contract\nclaims. Mr. Mittelstadt timely sought review of the district\ncourt’s decision.20\n\n\n20 The district court had jurisdiction over this case under the judicial re-\nview provision of the APA, which waives sovereign immunity for actions\n“seeking relief other than money damages and stating a claim that an\nagency or an officer or employee thereof acted or failed to act in an official\ncapacity or under color of legal authority.” 5 U.S.C. § 702. For purposes of\n§ 702, the Supreme Court has held that the mere “fact that a judicial rem-\nedy may require one party to pay money to another is not a sufficient rea-\nson to characterize the relief as ‘money damages.’” Bowen v. Massachusetts,\n487 U.S. 879, 893 (1988). Instead, the critical question is whether the plain-\ntiff seeks substitute or specific relief. Whereas “[d]amages are given to the\n\fNo. 17-2447 9\n\n II\n DISCUSSION\n We review the district court’s decision on summary judg-\nment de novo. Stable Invs. P’ship v. Vilsack, 775 F.3d 910, 915\n(7th Cir. 2015). In “an action for review of final action taken\nby a federal administrative agency, the ultimate question is\nwhether that action is ‘arbitrary, capricious, an abuse of dis-\ncretion, or otherwise not in accordance with the law.’” Id. (ci-\ntation omitted) (quoting 5 U.S.C. § 706(2)). To “answer[] that\nquestion, we rely on the same administrative record that was\n\nplaintiff to substitute for a suffered loss,” specific remedies “attempt to\ngive the plaintiff the very thing to which he was entitled.” Id. at 895 (quot-\ning Maryland Dep’t of Human Res. v. Dep’t of Health & Human Servs., 763\nF.2d 1441, 1446 (D.C. Cir. 1985)) (emphasis in original). Here, Mr. Mittel-\nstadt’s request for an order directing the Secretary “to pay all amounts due\nand owing under Contract 1710,” R.3 ¶ 152, was not a request for “money\ndamages” because Mr. Mittelstadt sought payments “not as compensation\nfor [the Secretary’s] failure to perform some other obligation,” but as “the\nvery thing to which he was entitled” under the CRP. Columbus Reg’l Hosp.\nv. FEMA, 708 F.3d 893, 896 (7th Cir. 2013) (quoting Bowen, 487 U.S. at 895).\nMr. Mittelstadt’s APA claim challenging the Secretary’s decision denying\nreenrollment seeks “relief other than money damages,” and is “therefore\nwithin the waiver of sovereign immunity in section 702.” Maryland Dep’t\nof Human Res. v. Dep’t of Health & Human Servs., 763 F.2d 1441, 1448 (D.C.\nCir. 1985) (quoting 5 U.S.C. § 702). Additionally, because his breach of con-\ntract claim is, at base, an alternative request for administrative relief di-\nrecting the Secretary to make the payments to which Mr. Mittelstadt\nwould have been entitled under Contract 1710, this claim is simply a dif-\nferent way of characterizing his request for “the very thing to which he\nwas entitled” under the CRP. Columbus Reg’l Hosp., 708 F.3d at 896 (quot-\ning Bowen, 487 U.S. at 895). Jurisdiction over Mr. Mittelstadt’s breach of\ncontract claim was therefore proper under § 702. We have jurisdiction over\nthis appeal from the district court’s entry of summary judgment under 28\nU.S.C. § 1291.\n\f10 No. 17-2447\n\nbefore the district court and render an independent judgment\nas to whether the agency acted unreasonably.” Id. Under this\n“deferential standard,” we “will uphold a decision of less\nthan ideal clarity if the agency’s path may reasonably be dis-\ncerned.” St. Clair v. Sec’y of Navy, 155 F.3d 848, 851 (7th Cir.\n1998) (internal quotation marks omitted).\n A.\n We begin with an examination of the governing statutory\nscheme. As part of the Food Security Act of 1985,21 Congress\nestablished the CRP. This program incentivizes landowners\nto remove environmentally sensitive land from agricultural\nproduction in return for annual rental payments from the\nUSDA. S. Rep. 99-145, at 1971 (1985). The impetus for the de-\nvelopment of the CRP was an increased concern about soil\nerosion. Id. In 1982, the National Resources Inventory22 had\ndetermined that almost fifty percent of erosion occurred on\nonly ten percent of cropland in the United States. Id. The Soil\nConservation Service projected that the CRP would “reduce\nwind and water erosion on these acres by an average of nearly\n20 tons per acre per year.” Id. (capitalization omitted). Ac-\ncordingly, Congress directed the Secretary to “formulate and\ncarry out” the CRP by awarding contracts to encourage land-\nowners “to conserve and improve the soil, water, and wildlife\nresources of such land and to address issues raised by State,\n\n\n21 Pub. L. No. 99-198, §§ 1201, 1231–1236, 99 Stat. 1354, 1504–05, 1509–14\n(codified as amended at 16 U.S.C. §§ 3801, 3831–3836).\n22 Administered by the NRCS, the National Resources Inventory is a “sta-\ntistically-based survey” designed to “assess conditions and trends of soil,\nwater, and related resources on nonfederal lands in the United States.” 7\nC.F.R. § 601.1(f)(1)(v).\n\fNo. 17-2447 11\n\nregional, and national conservation initiatives.” 16 U.S.C.\n§ 3831(a).\n The USDA oversees the CRP, with funding provided by\nthe CCC, an entity owned and operated by the government.\n16 U.S.C. § 3841(a). Together with the FSA, the CCC is respon-\nsible for implementing the regulations governing the CRP. 7\nC.F.R. § 1410.1(a). The Agricultural Stabilization and Conser-\nvation Service, which operates through state and county com-\nmittees, administers the CRP on behalf of the CCC.\n The FSA and the Agricultural Stabilization and Conserva-\ntion Service also have issued, for use by the state and county\ncommittees, handbooks detailing the procedures and require-\nments for implementing and participating in the CRP. These\nhandbooks, which were not published in the Federal Register\nand therefore were not promulgated according to the require-\nments of the APA, are interpretive only and do not have the\nforce or effect of official regulations.23\n The statute limits the type and total acreage of land that\ncan be enrolled in the CRP. Land eligible for enrollment in-\ncludes certain highly erodible cropland, marginal pasture\nland, grasslands, and, at the Secretary’s determination, other-\nwise ineligible cropland that poses an environmental threat.\n16 U.S.C. § 3831(b). During fiscal year 2018, the Secretary\ncould maintain no more than twenty-four million acres of\nland in the program. Id. § 3831(d)(1)(E). Additionally, the\n\n\n23 See Westcott v. U.S. Dep’t of Agric., 765 F.2d 121, 122 (8th Cir. 1985) (per\ncuriam); see also Thomas v. Cty. Office Comm. of Cameron Cty., 327 F. Supp.\n1244, 1253 (S.D. Tex. 1971); Graham v. Lawrimore, 185 F. Supp. 761, 764\n(E.D.S.C. 1960); Hawkins v. State Agric. Stabilization & Conservation Comm.,\n149 F. Supp. 681, 686 (S.D. Tex. 1957).\n\f12 No. 17-2447\n\nSecretary cannot enroll more than twenty-five percent of the\ncropland in any county unless he determines that enrolling a\nlarger percentage “would not adversely affect the local econ-\nomy.” 16 U.S.C. § 3844(f).\n Landowners who wish to participate in the CRP must en-\ngage in a bid system. According to the legislative history, the\nstatute utilizes this system because “the competitive bid sys-\ntem is the most cost-effective means of identifying our least\nproductive and most erosion prone acreage, while at the same\ntime minimizing cost to the U.S. Treasury.” S. Rep. 99-145, at\n1971 (capitalization omitted). Congress determines, for a\ngiven year, the maximum acreage permitted to be enrolled in\nthe CRP each time it amends the authorizing statute.24 Indi-\nvidual rental payments are capped at $50,000 per year. 16\nU.S.C. § 3834(g)(1).\n To participate in the bidding process, landowners submit\noffers to the CCC indicating “the amounts they are willing to\naccept as rental payments to enroll their acreage in the CRP.”\n7 C.F.R. § 1410.31(a). The CCC may evaluate offers “on a com-\npetitive basis in which the offers selected will be those where\nthe greatest environmental benefits relative to cost are gener-\nated.” Id. In evaluating offers, the agency employs a national\nEBI, which “provides a relative ranking of estimated environ-\nmental benefits and cost for land offered for CRP.”25 “Ac-\nceptance or rejection of any offer” is “in the sole discretion of\nthe CCC[,] and offers may be rejected for any reason as\n\n\n24 See Agriculture Improvement Act of 2018, Pub. L. No. 115-334, §\n 2201(c)\n(amending 16 U.S.C. § 3831(d)); Agricultural Act of 2014, Pub. L. No.\n113-79, § 2001(d) (same).\n25 R.16-1 at 679.\n\fNo. 17-2447 13\n\ndetermined needed to accomplish the goals of CRP.” 7 C.F.R.\n§ 1410.31(a). When evaluating contract offers, the CCC may\nconsider such factors as soil erosion, water quality, wildlife\nbenefits, soil productivity, the “[l]ikelihood that enrolled land\nwill remain in non-agriculture use beyond the contract pe-\nriod,” air quality, and the cost of enrolling the land in the CRP.\nId. § 1410.31(b). Offers to enroll in the CRP are “irrevocable\nfor such period as is determined and announced by the Dep-\nuty Administrator” of the FSA. 7 C.F.R. § 1410.32(c)(2). If an\napplicant revokes his offer during the irrevocable period, he\nmay be liable to the CCC for liquidated damages. Id.\n Following CCC approval, the USDA awards CRP con-\ntracts for terms between ten and fifteen years, depending on\nthe type of land involved. 16 U.S.C. § 3831(e)(1).26 In return\nfor converting their land to less intensive uses, landowners\nreceive annual rental payments. 16 U.S.C. § 3833(a)(2). The\namounts of these payments are determined when the land-\nowners submit bids for CRP contracts. 16 U.S.C.\n§ 3834(d)(2)(A)(i).\n Participants in the CRP must obtain and implement a con-\nservation plan outlining required conservation practices for\nthe enrolled land. The conservation plan is considered part of\nthe CRP contract, 7 C.F.R. § 1410.20(a)(2), and must be ap-\nproved by the conservation district in which the land is\n\n26 Specifically, “[c]ontracts with land devoted to hardwood trees, shelter-\nbelts, windbreaks, or wildlife corridors will be for a term of 10 years to 15\nyears, as requested by the applicant.” 7 C.F.R. § 1410.7(a). By contrast,\n“[o]ther general and continuous signup contracts … will be for a term of\n10 to 15 years, as determined by the Deputy Administrator.” Id.\n§ 1410.7(b). “Grassland signup contracts will be for a term of 15 years.” Id.\n§ 1410.7(c).\n\f14 No. 17-2447\n\nlocated, 7 C.F.R. §§ 1410.3(b), 1410.22(a). Landowners must\n“[e]stablish and maintain” the required vegetative cover and\nthe required practices on the enrolled land, and must “take\nother actions that may be required by CCC to achieve the de-\nsired environmental benefits and to maintain the productive\ncapability of the soil throughout the contract period.” 7 C.F.R.\n§ 1410.20(a)(6). All conservation plans and revisions to such\nplans are subject to the approval of the Deputy Administrator\nof the FSA. 7 C.F.R. § 1410.22(e). Subject to fund availability,\nthe CCC must “[s]hare up to 50 percent of the cost” of estab-\nlishing conservation practices with CRP participants. 7 C.F.R.\n§ 1410.21(a). Rental payments combined with cost-sharing are\ndesigned to assure landowners of a return on the land with-\nout having to risk large sums of money to adopt conservation\npractices.27\n The CCC retains the authority to modify or terminate an\nexisting CRP contract. Specifically, the CCC can modify a CRP\ncontract if the Deputy Administrator determines that,\nthrough no fault of the participant, the “installed practice\nfailed to adequately provide for the desired environmental\nbenefit” or “deteriorated,” and that “[a]nother practice will\nachieve at least the same level of environmental benefit.” 7\nC.F.R. § 1410.33(b). Additionally, the CCC can terminate a\nCRP contract before expiration of the term if, among other\ngrounds, “[t]he participant is not in compliance with the\nterms and conditions of the contract,” “[t]he CRP practice fails\nor is not established after a certain time period,” the “contract\nwas approved based on erroneous eligibility determina-\ntions,” or “[t]he Deputy Administrator determines that such\n\n27See Michael W. Strain, Student Survey, The Conservation Reserve: A Bold\nStep Towards the Future, 31 S.D. L. Rev. 523, 529 (1986).\n\fNo. 17-2447 15\n\na termination is needed in the public interest, or is otherwise\nnecessary and appropriate to further the goals of CRP.” 7\nC.F.R. § 1410.32(f).\n This statutory and regulatory scheme places considerable\ndiscretion over CRP participation in the hands of the FSA. The\nimplementing regulations afford the agency broad discretion\nto evaluate offers for enrollment and reenrollment in the pro-\ngram:\n [O]ffers may, to the extent practicable, be evalu-\n ated on a competitive basis in which the offers\n selected will be those where the greatest envi-\n ronmental benefits relative to cost are gener-\n ated … . Acceptance or rejection of any offer,\n however, shall be in the sole discretion of the\n CCC and offers may be rejected for any reason\n as determined needed to accomplish the goals\n of CRP.\n7 C.F.R. § 1410.31(a). Although we have had no occasion to\ndescribe the scope of discretion under this particular regula-\ntion, our cases involving other statutory and regulatory\ngrants of “sole discretion” confirm that this language confers\nwide latitude upon the relevant actor.28\n\n\n\n28 See, e.g., Mahler v. U.S. Forest Serv., 128 F.3d 573, 577–78 (7th Cir. 1997)\n(concluding, where the Rescissions Act of 1995 required the Secretary of\nAgriculture to prepare an environmental assessment and a biological eval-\nuation “at the sole discretion of the Secretary concerned and to the extent\nthat the Secretary concerned considers appropriate and feasible,” that\n“this language clearly authorize[d] the Secretary to permit a shorter pe-\nriod for public comment than that usually required under the Public Par-\nticipation Law” (emphasis added)).\n\f16 No. 17-2447\n\n B.\n With this statutory and regulatory background in mind,\nwe turn first to Mr. Mittelstadt’s contention that the agency\nabused its discretion because it had not defined “mixed hard-\nwoods” when it considered his application for reenrollment\nunder Contract 653 in 1997 or under Contract 1710 in 2006.\nWe also consider his related argument that the agency’s ap-\nplication of a new interpretation of “mixed hardwoods,”\nadopted in 2006, when it denied his request for reenrollment\nunder Contract 1710 was an abuse of discretion.\n Here, the Secretary “readily acknowledge[d] that,\nthroughout the entire relevant time period, there was never a\npublished definition of ‘mixed hardwoods’ in FSA’s Hand-\nbook, in the regulations, or elsewhere.”29 Nevertheless, to\nevaluate Mr. Mittelstadt’s 2006 application for reenrollment,\nthe agency interpreted “mixed hardwoods” to mean “two\nspecies of hardwoods planted together in the same rows.”30\nGiven the great discretion vested in the Secretary to obtain\noptimal environmental return for every dollar appropriated\nfor the CRP, the FSA clearly had the capability to tighten the\ndefinition of “mixed hardwoods” for new contract periods.31\nThe very nature of the program affords the Secretary the au-\nthority to change the terms and conditions of participation in\n\n\n29 Appellee’s Br. 35.\n30 R.9 ¶ 70.\n31 Cf. Paragon Health Network, Inc. v. Thompson, 251 F.3d 1141, 1147 (7th Cir.\n\n2001) (noting that “Congress is presumed to have delegated the primary\npower to fill regulatory ambiguities to the agency, and courts owe defer-\nence to agency decisions that clarify a regulation regardless of the fact that\nthe agency waited to exercise this power”).\n\fNo. 17-2447 17\n\norder to achieve, given the resources available, the most ad-\nvantageous result. The USDA’s policy, therefore, was to\nmaintain a competitive program that allowed the Secretary to\nselect, based on currently available funding, the best land\navailable to attain the goals of the program. The agency did\nnot have to contract for the same conservation measures at the\nsame price upon each reenrollment.\n The Secretary’s decision to limit program participation to\nland with a different pattern of hardwoods, a pattern that he\ndeemed more favorable to the conservation ends of the pro-\ngram, cannot be characterized fairly as the reversal of an\nagency policy. Because there was no previous specific defini-\ntion applicable to all future contracts set forth in the regula-\ntions or even in the FSA Handbook, the Secretary did not re-\nverse a governing policy.32 For the same reason, the 2006 re-\nquirement cannot be characterized as such “a sudden and un-\nexpected change in agency policy” as to be arbitrary, capri-\ncious, or an abuse of discretion.33 The new requirement is\ngrounded firmly in the governing statutes and regulations\nand implements the Secretary’s decision that such a criterion\n\n\n32 Cf. Friends of the Boundary Waters Wilderness v. Dombeck, 164 F.3d 1115,\n1123 (8th Cir. 1999) (holding that, since no prior Forest Service or USDA\nplans provided a definition of the term “guest” for purposes of motorboat\nuse restrictions, the definition newly provided by the Forest Service to\navoid abuses of the motorboat use quota system could not “be considered\nas reversing a prior agency policy” and was entitled to deference).\n33 See id. (observing that “‘the mere fact that an agency interpretation con-\n\ntradicts a prior agency position is not fatal,’ unless the new position is a\nsudden and unexpected change in agency policy that can be characterized\nas arbitrary, capricious, or an abuse of discretion” (quoting Smiley v. Citi-\nbank (S.D.), N.A., 517 U.S. 735, 742 (1996)).\n\f18 No. 17-2447\n\nwill ensure that the available government funds are imple-\nmented in the most effective manner.34\n Mr. Mittelstadt conceded that “there were never areas of\n[his] acreage planted to more than one species of hard-\nwood.”35 He had understood that “the terminology ‘mixed\nhardwoods’ mean[t] only 1 hardwood species ‘mixed’ with\npine.”36 Accordingly, in 1989, he planted three sections of\ntrees on his land: (1) walnut and white pine trees, (2) red oak\nand white pine trees, and (3) solely white pine trees.37 Pine\ntrees are softwoods, whereas walnut and red oak trees are\nhardwoods, so that no section he planted had more than one\nspecies of hardwood tree mixed with pine. It follows that, by\n2006, his acreage did not meet the FSA’s new requirement,\nwhich required that “there be at least 2 species of hardwoods\n\n34 Mr. Mittelstadt asserts that the FSA was “affirmatively required” to in-\nform him of the new interpretation of “mixed hardwoods” and to “help[]\nhim craft a new plan that would elevate [Tract 9073’s] EBI score by chang-\ning the arrangement of hardwood species.” Appellant’s Br. 32. He relies\non the FSA Handbook, which states that the “FSA will review EBI scoring\nparameters with the producers and encourage the planting of cover types\nand conservation measures, if appropriate, that will provide higher envi-\nronmental benefits.” R.16-1 at 679. However, the agency did not discover\nthat Mr. Mittelstadt’s land did not meet the new requirement for “mixed\nhardwoods” until he began the reenrollment process, at which point the\nmaintenance inspections revealed CRP violations. The agency informed\nhim that, to reenroll his land, he could cure the violations by planting two\nor more species of hardwood trees mixed with a softwood tree. The FSA\nHandbook, which does not confer a legal right on Mr. Mittelstadt to par-\nticipate in the program, did not require more.\n35 R.19 at 36–37.\n36 Id. at 37.\n37 Id. at 28.\n\fNo. 17-2447 19\n\nmixed into the rows of hardwoods.”38 The FSA therefore did\nnot abuse its discretion when it determined that Mr. Mittel-\nstadt’s land did not satisfy the 2006 requirement of “mixed\nhardwoods.”39\n C.\n\n38 Id. at 37. Relatedly, Mr. Mittelstadt submits that it was error for the FSA\n\nnot to recalculate the EBI score for Tract 9073 using its new interpretation\nof “mixed hardwoods.” At multiple stages of the review process, how-\never, the agency concluded that there were “no areas of the contract that\nqualify as ‘mixed hardwoods’” under the 2006 requirement. R.19 at 38; see\nalso R.16-4 at 5. Nor does Mr. Mittelstadt contend that he engaged in other\nconservation practices that would contribute to Tract 9073’s EBI score. Ac-\ncordingly, no formal recalculation was needed to conclude that, under the\nnew interpretation, Tract 9073 “no longer had as high an EBI score as it\nonce did.” R.16-6 at 1. The FSA’s failure to formally recalculate the EBI\nscore for Tract 9073 was not an abuse of discretion.\n39 Mr. Mittelstadt’s claim that complying with the FSA’s new interpreta-\ntion of “mixed hardwoods” would have brought him in violation of the\nexisting conservation plan under either Contract 653 or Contract 1710 is\nunsubstantiated. The 1997 conservation plan for Contract 653 instructed:\n CRP-CP11. The existing tree planting will not be man-\n aged for Christmas trees and will be protected from fire\n and from grazing by domestic livestock for the duration\n of the CRP contract.\nR.19-2 at 13. Similarly, the 2006 conservation plan for Contract 1710 stated:\n CRP-CP11. Vegetative Cover, Trees Already Estab-\n lished. … The existing tree planting will not be managed\n for Christmas trees and will be protected from fire and\n from grazing by livestock for the duration of the CRP con-\n tract. Spot treat for weed and brush control … .\nR.19-1 at 39. Nothing in either conservation plan suggests that Mr. Mittel-\nstadt would have violated those terms by planting “two species of hard-\nwoods … together in the same rows.” R.9 ¶ 70.\n\f20 No. 17-2447\n\n We turn next to Mr. Mittelstadt’s contention that the FSA\nerroneously relied on 7 C.F.R. § 1410.31(a) to uphold the\nCCC’s denial of reenrollment under Contract 1710. According\nto Mr. Mittelstadt, this provision “has nothing to do with the\npost-award process through which Tract 9073 was disquali-\nfied from Contract 1710,” and “instead describes the\npre-award process” through which Contract 1710 was\nawarded.40 We cannot accept this argument because it is\npremised on a nonexistent temporal distinction.\n The FSA Handbook instructs that, “[w]hen the producer\nis ready to submit an offer, County Offices shall provide … to\nthe producer” Form CRP-1.41 Once a producer submits an\n\n\n\n40 Appellant’s Br. 35–36.\n41 R.16-1 at 179. As an alternative theory of recovery, Mr. Mittelstadt as-\nserts that, when the agency sent him Form CRP-1 for Contract 1710, it had\naccepted his offer of reenrollment, and there was a binding contract. But\nthat argument ignores the FSA’s express description of Form CRP-1 as a\nform document that constitutes the producer’s “offer” of enrollment in the\nCRP, not the agency’s acceptance of that offer. Further, the FSA Handbook\nstates that “[p]roducers withdrawing CRP-1 during the irrevocable period\nshall be subject to liquidated damages,” id., and Form CRP-1 reiterates\nthat, by signing the form, the participant “agrees to pay such liquidated\ndamages … if the Participant withdraws prior to CCC acceptance or rejec-\ntion.” R.19-1 at 45. These provisions confirm that Form CRP-1 constitutes\nan offer to be considered by the CCC, not a binding contract. Given that\nthe regulations similarly require that a producer pay liquidated damages\nto the CCC if he “revokes an offer during the period in which the offer is\nirrevocable,” 7 C.F.R. § 1410.32(c)(2) (emphases added), the prospect of\nhaving to pay liquidated damages provides no support to Mr. Mittel-\nstadt’s position that a binding contract existed. Finally, the FSA Handbook\nrequires that Form CRP-1 “be signed and dated by all required signato-\nries,” R.16-2 at 183, but Mr. Mittelstadt never received a countersigned\n\fNo. 17-2447 21\n\noffer on Form CRP-1, the FSA County Committee “shall sub-\nmit all offers … to the national level for review and evalua-\ntion.”42 The regulation at issue, 7 C.F.R. § 1410.31(a), confers\n“sole discretion” upon the CCC to evaluate offers of enroll-\nment in the CRP “on a competitive basis in which the offers\nselected will be those where the greatest environmental ben-\nefits relative to cost are generated.” The regulations further\nprovide that, “[i]n order to be eligible to be placed in the CRP,\nland must” qualify under an enumerated eligibility category,\nsuch as “[a]creage enrolled in CRP during the final year of the\nCRP contract.” 7 C.F.R. § 1410.6(a).\n In 2006, when the FSA County Committee concluded that\nthe 1997 eligibility determination had been incorrect and ter-\nminated Contract 653, Tract 9073 no longer qualified as eligi-\nble “[a]creage enrolled in CRP.” Id. However, when the Dep-\nuty Director of the National Appeals Division reversed that\ndetermination and reinstated Contract 653, the effect of his or-\nder was only to reinstate Tract 9073’s ground for eligibility\nunder 7 C.F.R. § 1410.6(a)(3).43 Mr. Mittelstadt’s bid to\n\n\ncopy of Contract 1710. Because there was no binding contract, Mr. Mittel-\nstadt cannot state a claim for breach.\n42 R.16-1 at 185 (emphasis omitted).\n43 Mr. Mittelstadt further contends that the Deputy Director’s ruling on\nthe reenrollment of Contract 1710 was improper because, at the pre-hear-\ning before the Hearing Officer, “the parties stipulated that the sole issue\non appeal was the erroneous eligibility determination that was made in\n1997.” R.16-5 at 4. The Hearing Officer found that the “FSA correctly de-\ntermined that Appellant did not establish a mixed stand of hardwood\ntrees on the contract acreage” and that “Appellant based his request for\nCRP reenrollment under contract 1710 on the same inaccurate EBI scoring\nused in CRP contract 653.” R.16-4 at 5–6. Accordingly, the Hearing Officer\ndetermined both that “FSA correctly terminated contract 653 because of\n\f22 No. 17-2447\n\nreenroll was still subject to the CCC’s discretion to evaluate\nhis offer based on its relative competitiveness, see 7 C.F.R.\n§ 1410.31(a), and actual reenrollment required CCC approval.\nThe FSA Director recognized precisely this degree of discre-\ntion when he denied Mr. Mittelstadt’s request for reconsider-\nation, explaining that “agency regulations at 7 C.F.R.\n§ 1410.31(a) provide that acceptance or rejection of any offer\nof land by an owner for CRP participation shall be in the sole\ndiscretion of the CCC and offers may be rejected for any rea-\nson as determined to accomplish the goals of the program.”44\nAccording to the Director, “[w]hile not cited in the determi-\nnation, this regulation was the basis” for the Deputy Direc-\ntor’s decision.45 It was no abuse of discretion for the FSA to\nrely on 7 C.F.R. § 1410.31(a) to uphold the CCC’s decision.\n Relatedly, Mr. Mittelstadt claims that the agency was first\nrequired to change his conservation plan to comply with its\nnew interpretation of “mixed hardwoods” and that, if he “re-\nfused to conform Tract 9073 to the corrected Conservation\n\n\n\n\nan inaccurate EBI score” and that FSA “correctly denied Appellant’s reen-\nrollment request under CRP contract 1710.” Id. at 6. Thus, the Deputy Di-\nrector’s review of the Hearing Officer’s decision necessarily encompassed\nboth the Hearing Officer’s findings with regard to the termination of Con-\ntract 653 and the reenrollment under Contract 1710, which were “based”\non “the same inaccurate EBI scor[e].” Id. The district court correctly con-\ncluded that “the parties’ stipulation … ma[de] little practical sense on its\nface,” R.25 at 18, given that the Deputy Director could not properly review\nthe Hearing Officer’s decision without considering the grounds for that\ndecision in full.\n44 R.16-6 at 1.\n45 Id.\n\fNo. 17-2447 23\n\nPlan, the Tract would then be in violation.”46 But Mr. Mittel-\nstadt confuses the order of procedure required. The FSA\nHandbook instructs that, “[i]f [an] offer is determined ac-\nceptable,” then “a conservation plan must be developed by\nNRCS … and approved by the Conservation District before\nCRP-1 can be approved” by the FSA County Committee.47 Be-\ncause the FSA never accepted Mr. Mittelstadt’s offer to reen-\nroll his land, the agency was under no obligation to develop\na new conservation plan for Tract 9073 before denying reen-\nrollment. The FSA’s course of proceeding simply was not an\nabuse of discretion.\n Conclusion\n For the foregoing reasons, we affirm the judgment of the\ndistrict court.\n AFFIRMED\n\n\n\n\n46 Appellant’s Br. 49 (emphasis in original).\n47 R.16-1 at 186.\n[END_CASE]", "role": "user" } ]
4,581,698		William Rainsberger v. Charles Benner	2019-01-15	17-2521	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before WOOD, Chief Judge, and HAMILTON and BARRETT, Circuit Judges.", "parties": "", "opinions": [{"author": "BARRETT, Circuit Judge", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________ \nNo. 17‐2521 \nWILLIAM RAINSBERGER, \n Plaintiff‐Appellee, \n v. \n\nCHARLES BENNER, \n Defendant‐Appellant. \n ____________________ \n\n Appeal from the United States District Court for the \n Southern District of Indiana, Indianapolis Division. \n No. 1:16‐cv‐00103‐WTL‐MJD — William T. Lawrence, Judge. \n ____________________ \n\n ARGUED JANUARY 4, 2018 — DECIDED JANUARY 15, 2019 \n ____________________ \n\n Before WOOD, Chief Judge, and HAMILTON and BARRETT, \nCircuit Judges. \n BARRETT, Circuit Judge. William Rainsberger was charged \nwith murdering his elderly mother. But the detective who \nbuilt the case against him, Charles Benner, may have been dis‐\nhonest. According to Rainsberger, Benner submitted a proba‐\nble cause aﬃdavit that was riddled with lies and undercut by \nthe omission of exculpatory evidence. Based on that aﬃdavit, \nRainsberger was arrested, charged, and imprisoned for two \n\f2 No. 17‐2521 \n\nmonths. When the prosecutor dismissed the case because of \nevidentiary problems, Rainsberger sued Benner under 42 \nU.S.C. § 1983 for violating his Fourth Amendment rights. Ben‐\nner moved for summary judgment, arguing that he was enti‐\ntled to qualified immunity. The district court denied his mo‐\ntion, and he now asks us to reverse the district court. \n We decline to do so. Benner concedes for purposes of this \nappeal that he knowingly or recklessly made false statements \nin the probable cause affidavit. He emphasizes, however, that \nknowingly or recklessly misleading the magistrate in a prob‐\nable cause affidavit—whether by omissions or outright lies—\nonly violates the Fourth Amendment if the omissions and lies \nwere material to probable cause. He claims that his weren’t, \nbut we disagree. Materiality depends on whether the affidavit \ndemonstrates probable cause when the lies are taken out and \nthe exculpatory evidence is added in. And when that is done \nhere, Benner’s affidavit fails to establish probable cause to be‐\nlieve that Rainsberger murdered his mother. Because it is \nclearly established that it violates the Fourth Amendment “to \nuse deliberately falsified allegations to demonstrate probable \ncause,” Franks v. Delaware, 438 U.S. 154, 168 (1978), Benner is \nnot entitled to qualified immunity. \n I. \n We start with an issue that affects both appellate jurisdic‐\ntion and our rendition of the facts. This is an appeal from the \ndistrict court’s order denying Benner’s motion for summary \njudgment on the ground of qualified immunity. In the normal \ncourse, we lack jurisdiction to review an order denying sum‐\nmary judgment because it is not a “final decision” under 28 \nU.S.C. § 1291. See Gutierrez v. Kermon, 722 F.3d 1003, 1009 (7th \n\fNo. 17‐2521 3 \n\nCir. 2013). But because “qualified immunity is in part an enti‐\ntlement not to be forced to litigate the consequences of official \nconduct,” Mitchell v. Forsyth, 472 U.S. 511, 527 (1985), the de‐\nnial of qualified immunity is an appealable interlocutory de‐\ncision—at least insofar as it turns exclusively on a question of \nlaw, id. at 530. That qualification is significant: because our \nauthority extends only to questions of law, an officer can ob‐\ntain interlocutory review only if he refrains from contesting \nany fact that a reasonable jury could resolve against him. See \nJones v. Clark, 630 F.3d 677, 680 (7th Cir.2011) (“In a collateral‐\norder appeal …, where the defendants say that they accept \nthe plaintiff’s version of the facts, we will take them at their \nword and consider their legal arguments in that light. If, how‐\never, we detect a back‐door effort to contest the facts, we will \nreject it and dismiss the appeal for want of jurisdiction.”). \nBenner does so here. For purposes of this appeal, he accepts \nas true Rainsberger’s version of all facts that are in material \ndispute—most significantly, that he knowingly or recklessly \nmade false or misleading statements in the affidavit that se‐\ncured Rainsberger’s arrest. In what follows, then, we recount \nthe facts that we must take as true, drawing all inferences in \nRainsberger’s favor. The legal question that we must decide \nis whether Benner is entitled to qualified immunity on these \nfacts. \n A. \n Rainsberger was the primary caregiver for his mother, \nRuth, who was 88 years old and suﬀering from dementia.1 \nRuth lived alone in an apartment in a high‐crime area; Rains‐\nberger lived nearby. He checked on her daily, did her grocery \n \n1 We will refer to the other members of the Rainsberger family by their \n\nfirst names for the sake of clarity. \n\f4 No. 17‐2521 \n\nshopping, and handled her finances. His siblings Robert and \nRebecca also helped care for Ruth, although they saw her less \nfrequently. \n At approximately 3:30 p.m. on November 19, 2013, Rains‐\nberger went to Ruth’s apartment and found the door un‐\nlocked. When he entered, he discovered Ruth lying facedown \non the floor with a blanket covering her shoulders and head. \nShe was breathing, but with diﬃculty. There was a large circle \nof dried blood on the blanket and a pool of congealed blood \non the floor. Rainsberger did not remove the blanket because \nhe believed that it was acting as a bandage, and he feared that \nthe bleeding would increase if he pulled it oﬀ. \n Rainsberger called 911 from his mother’s landline at 3:37 \np.m. He told the operator that someone had “bashed [his \nmother’s] head in.” He then called his brother Robert and told \nhim to come to the apartment immediately. Rainsberger \nwaited outside for the ambulance because Ruth’s apartment \nwas diﬃcult to locate within the complex. \n When paramedic Carl Wooldridge arrived, Rainsberger \ntold him that someone had “caved his mother’s head in.” \nWooldridge observed that the blanket covering Ruth’s head \nappeared to be stuck to a wound. He noticed “somewhat of a \nhole in [the blanket] where the wound was,” and when he \npeeled the blanket oﬀ, “there was a mark … on her forehead \nthat [he] believed to be an entrance wound.” Based on those \nobservations, Wooldridge told fire and ambulance personnel \nthat Ruth had been shot—a conclusion that the emergency \npersonnel thought odd, given the lack of blood splatter on the \nwalls or ceiling. As it turned out, Rainsberger, not \nWooldridge, had it right: Ruth died of blunt force trauma to \nthe head. Wooldridge later told Charles Benner, the detective \n\fNo. 17‐2521 5 \n\ninvestigating the murder, that he found it suspicious that \nRainsberger said that his mother’s head had been caved in \neven though he had not removed the blanket to look at her \ninjuries. \n Benner came to Ruth’s apartment roughly 40 minutes after \nRainsberger placed the 911 call. There was no sign of forced \nentry, and while some dresser drawers in Ruth’s bedroom \nwere open, their contents were undisturbed. Ruth’s check‐\nbook, credit cards, and some cash were found in the apart‐\nment. Her purse and prescription medication were not. \n Rainsberger and Robert, who had since arrived, voluntar‐\nily went to police headquarters to give statements to Benner. \nRainsberger said that he had last seen his mother the previous \nevening. After visiting her, he drove to Plainfield, which is \nroughly 25 miles away, to spend the evening with his wife. \nHe returned to his house the next morning, where he stayed \nuntil around 3:30 p.m. He then left home to check on his \nmother, stopping at Kroger on the way to buy an iced tea. He \ntold Benner that Ruth’s apartment was unlocked when he ar‐\nrived and that he found her lying wounded on the floor. He \nchecked the apartment for intruders and, finding none, called \n911. Rainsberger informed Benner that his mother was not \nphysically able to stand up and see through the peephole, so \nshe typically had to open the door to see who was there. And \nRainsberger said that Ruth had $80,000 to $100,000 in savings \nthat would be distributed to her three children upon her \ndeath. \n Robert told Benner that he had not seen Ruth for a few \ndays. He said that he had been at Rainsberger’s house when \nRainsberger called to tell him to come to Ruth’s apartment im‐\n\f6 No. 17‐2521 \n\nmediately. He explained that he had been living with Rains‐\nberger for a few months because he had lost his own home to \nforeclosure. \n Benner talked to Rainsberger’s sister Rebecca the next day. \nRebecca told Benner that she typically checked on her mother \nonce a week and had last seen her the day before the attack. \nSometime after his call with Rebecca, Benner asked the three \nsiblings to come to the station to review the results of Ruth’s \nautopsy. When they got there, however, Benner did not talk \nabout the autopsy. Instead, he accused Rainsberger and Rob‐\nert of murdering their mother for her money and asked them \nto take a polygraph. Upset at the accusation and at being \nlured to the station under false pretenses, they refused and \nleft. Roughly a week later, after obtaining counsel to represent \nthem, both Rainsberger and Robert agreed to go to the station \nto give fingerprints and submit to a DNA buccal swab. \n Benner did not wait for the results of the DNA tests before \nseeking to have Rainsberger arrested and charged. In early \nDecember 2013, Benner submitted a probable cause aﬃdavit \nto the Marion County prosecutor. But the prosecutor declined \nto pursue it, and Benner went back to find more evidence. \n Benner hoped that the results of the DNA tests would \nmake his case against Rainsberger. In March 2014, he noted in \nan email to a colleague that “[t]he victim’s sons are the sus‐\npects in this case and I am waiting for DNA results before any \narrest may be made.” But when the laboratory report came \nout in April 2014, it did not implicate Rainsberger—the DNA \nof two males was found on Ruth’s blanket and clothing, but \nneither Rainsberger nor Robert was a match. Benner took that \nresult in stride. Although the DNA test did not incriminate \n\fNo. 17‐2521 7 \n\nRainsberger, Benner did not think that it exonerated him ei‐\nther. (The same, of course, was true of Robert, but Benner was \nfocused on Rainsberger.) Benner reasoned that the unknown \nmale DNA on Ruth’s blanket and clothing might have been \nleft by emergency personnel rather than the killer. \n In May 2014, Benner went to the prosecutor with a second \nprobable cause aﬃdavit that was almost identical to the first. \nThe second aﬃdavit did not disclose the results of the DNA \ntest. But it added two pieces of evidence that Benner had ac‐\nquired since he presented the prosecutor with the first aﬃda‐\nvit. First, Benner used cell phone records to suggest that \nRainsberger had called Robert from Ruth’s apartment at 2:40 \np.m.—hours after Ruth was attacked and a little more than an \nhour before Rainsberger called 911. Second, he stated that cell \nphone tower location data could not place Rainsberger out‐\nside the area of his mother’s apartment during the relevant \nperiod. After receiving the second probable cause aﬃdavit, \nthe prosecutor went to Marion County Court and obtained a \nwarrant for Rainsberger’s arrest. Rainsberger was charged \nwith his mother’s murder and spent two months in jail before \nhe was released on bail. The prosecutor dismissed the case a \nyear later because of evidentiary problems. \n B. \n After the charges were dropped, Rainsberger sued Benner \nunder 42 U.S.C. § 1983, alleging that Benner had violated his \nFourth Amendment rights. Benner moved for summary judg‐\nment on the basis of qualified immunity, but the district court \ndenied the motion. It decided that a reasonable jury could find \nthat Benner knowingly or with reckless disregard for the truth \nmade false or misleading statements in the aﬃdavit. Probable \ncause did not exist without the false or misleading statements, \n\f8 No. 17‐2521 \n\nthe district court said, and because an oﬃcer who submits a \nmaterially misleading probable cause aﬃdavit violates \nclearly established Fourth Amendment law, it denied Benner \nqualified immunity. The district court’s order turned on the \nfollowing omissions and alleged lies.2 \n The phone records. The most damning addition to the sec‐\nond probable cause aﬃdavit was the suggestion that Rains‐\nberger called Robert’s cell phone from Ruth’s landline at 2:40 \np.m. on November 19. This placed Rainsberger at Ruth’s \napartment after she was injured and almost an hour before he \ncalled 911 for help. But the time stamp was inaccurate—and \nfor purposes of this appeal, we must assume that Benner \nknew it. A phone expert at the police department had ana‐\nlyzed the records and told Benner that the call had been \nrouted through a cell tower in Chicago, where it was one hour \nearlier. Thus, despite the 2:40 p.m. time stamp, the call had \nbeen placed at 3:40 p.m. Indianapolis time. It was the call that \nRainsberger had made to Robert just after he found Ruth and \ncalled 911. Benner chose to use the inaccurate and incriminat‐\ning time in his aﬃdavit. \n The Kroger video. Rainsberger had stopped at Kroger to buy \nan iced tea before going to Ruth’s apartment on the day of the \n\n \n2 Rainsberger complains about omissions in addition to those we detail \n\nhere. For example, he faults Benner for failing to include the results of the \nDNA test, the fact that Ruth lived in a high‐crime area, and the fact that \nshe would often open the door to strangers because she couldn’t see \nthrough the peephole. The district court chose not to determine whether \nthis information was material because it found probable cause lacking \neven without it. Because we agree that the hypothetical affidavit fails to \nestablish probable cause even without this evidence, we take the same ap‐\nproach as the district court. \n\fNo. 17‐2521 9 \n\nmurder. In the probable cause aﬃdavit, Benner described sur‐\nveillance video from Kroger that showed Rainsberger making \na trip to a trash can. According to Benner, Rainsberger “ap‐\npeared to pull out a straight object from his person which he \nplaced in the garbage can.” But the district court observed that \nnothing on the video shows Rainsberger “‘pulling’ the object \nfrom anywhere.” Benner also claimed that “[a]s [Rainsberger] \nplaced the object in the trash he appeared to look around for \ncameras.” But as the district court said, a reasonable jury \ncould find that Benner deliberately mischaracterized Rains‐\nberger’s behavior, which does not appear furtive on the video. \nAnd after watching the video ourselves, we agree with Rains‐\nberger that a reasonable jury could find that Benner intention‐\nally misled the prosecutor and magistrate in yet another re‐\nspect: by describing Rainsberger’s trash as a “straight object.” \nThat phrase was obviously designed to imply that Rains‐\nberger disposed of the murder weapon, but the object that \nRainsberger threw away looks far more like a soda can than a \n“straight object.”3 Viewed in Rainsberger’s favor, the video \ndepicts him carrying a small nondescript piece of trash \nthrough a parking lot and throwing it away near the entrance \nto the grocery store—in broad daylight and while other pa‐\ntrons are walking by. \n The evidence of burglary. Benner believed that Ruth’s at‐\ntacker was someone she knew rather than a thief. Consistent \nwith that theory, Benner swore in the aﬃdavit that nothing \n\n \n3 The district court did not address the shape of the trash, and its hypo‐\n\nthetical affidavit left intact Benner’s statement that “Rainsberger placed \nwhat appeared to be a straight object in the garbage can.” After viewing \nthe video in the light most favorable to Rainsberger, we refer to the waste \nsimply as “trash” in evaluating the affidavit. \n\f10 No. 17‐2521 \n\nhad been taken from the apartment. He noted that there was \nno sign of forced entry; that cash, a checkbook, and credit \ncards were still in the apartment; and that things were undis‐\nturbed apart from a few open drawers. But the district court \nconcluded that a jury could find that Benner intentionally \nmisled the prosecutor and magistrate in two respects. First, he \nfailed to tell them that Ruth’s purse and prescription medica‐\ntion were missing. Second, he stated that a lockbox containing \nsavings bonds was untouched and in plain view, even though \nthe lockbox was neither in plain view nor a repository of sav‐\nings bonds. \n Rainsberger’s concern for his mother. Benner described \nRainsberger as lacking concern for his mother. He stated that \nafter Rainsberger called 911, he “went outside to wait for the \nambulance” and “left his mother unattended until the police \narrived.” Benner conspicuously omitted Rainsberger’s expla‐\nnation for doing so—that he wanted to direct the ambulance \nto Ruth’s apartment, which was hard to find. And continuing \nwith this “callous son” theme, Benner asserted that when they \nwere questioned on the day of the attack, “[a]t no time did \nRobert or his brother, Rainsberger, ever ask me how their \nmom was doing or if they could get to the hospital to see her.” \nBenner knew, however, that Rainsberger was receiving up‐\ndates by text from his sister Rebecca, who was at the hospital, \nand that Rainsberger had expressed concern about how he \nwould get to the hospital from the police station. The district \ncourt concluded that a reasonable jury could find that Benner \nintentionally misled the prosecutor and magistrate. \n The polygraph. Benner claimed in the aﬃdavit that the \nRainsberger children “stormed out” of the police station after \nhe asked Rainsberger and Robert to take a polygraph test and \n\fNo. 17‐2521 11 \n\nthat he did not hear from them again. According to the district \ncourt, a reasonable jury could agree with Rainsberger that \nBenner’s description of the Rainsbergers’ departure was a lie, \nas was his claim that he didn’t hear from them again. \n II. \n Before us, Benner insists that he is entitled to qualified im‐\nmunity even if all of the disputed facts are true. Qualified im‐\nmunity involves a two‐pronged inquiry: (1) whether the facts, \nread in favor of the non‐moving party, amount to a constitu‐\ntional violation; and (2) whether the constitutional right was \nclearly established at the time of the alleged violation. McCo‐\nmas v. Brickley, 673 F.3d 722, 725 (7th Cir. 2012). The oﬃcer \nwins if the answer to either question is “no.” Jacobs v. City of \nChicago, 215 F.3d 758, 766 (7th Cir. 2000). Courts often start \nwith the second question, because if the law was not clearly \nestablished, there is no need to tackle the (often harder) ques‐\ntion whether the challenged conduct violated the Constitu‐\ntion. See Pearson v. Callahan, 555 U.S. 223, 236–42 (2009). This \ncase requires us to confront both issues, however, so we begin \nby analyzing whether Benner’s alleged conduct violated \nRainsberger’s Fourth Amendment rights. \n A. \n An officer violates the Fourth Amendment if he intention‐\nally or recklessly includes false statements in a warrant appli‐\ncation and those false statements were material to a finding of \nprobable cause. Hart v. Mannina, 798 F.3d 578, 591 (7th Cir. \n2015). An officer similarly violates the Fourth Amendment if \nhe intentionally or recklessly withholds material information \nfrom a probable cause affidavit. Whitlock v. Brown, 596 F.3d \n406, 410–11 (7th Cir. 2010). We use a straightforward method \n\f12 No. 17‐2521 \n\nto determine whether the alleged lies or omissions are mate‐\nrial: “We eliminate the alleged false statements, incorporate \nany allegedly omitted facts, and then evaluate whether the re‐\nsulting ‘hypothetical’ affidavit would establish probable \ncause.” Betker v. Gomez, 692 F.3d 854, 862 (7th Cir. 2012). \n With the lies stripped and the omissions added, Benner’s \ncase for probable cause boils down to this: Ruth’s murderer \nmight have been someone she knew, because the attack was \nnot necessarily connected to a burglary. Some drawers had \nbeen opened and her purse and medication were missing; at \nthe same time, there was no sign of a forced entry, and Ruth’s \ncheckbook, credit cards, and some cash were still in the apart‐\nment. Rainsberger had a key to her apartment, and cell phone \nrecords did not rule out the possibility that he was in the vi‐\ncinity of her apartment complex when the attack happened. \nShortly before he found his mother and called 911, Rains‐\nberger stopped at a Kroger across the street from his mother’s \napartment to buy an iced tea. He walked in plain view \nthrough the Kroger parking lot carrying a piece of trash, \nwhich he threw away in a receptacle by a Redbox machine on \nhis way into the store. He correctly described Ruth’s injury as \na blow to the head, even though he had not removed the blan‐\nket to see the wound. In contrast, the first responder, who did \nremove the blanket, initially thought that Ruth had been shot. \nRainsberger and his two siblings would inherit about $33,000 \napiece if his mother died. When Benner brought the Rains‐\nberger children to the police station under false pretenses, \nRainsberger and his brother refused Benner’s request that \nthey take a polygraph test. A week later, they voluntarily gave \nfingerprints and submitted to a DNA buccal swab. \n\fNo. 17‐2521 13 \n\n As we have explained before, “probable cause is a \ncommon‐sense inquiry requiring only a probability of \ncriminal activity; it exists whenever an officer or a court has \nenough information to warrant a prudent person to believe \ncriminal conduct has occurred.” Whitlock, 596 F.3d at 411. It \ndoes not require proof of a crime; it is about “the degree of \nsuspicion that attaches to particular types of non‐criminal \nacts.” Illinois v. Gates, 462 U.S. 213, 243 n.13 (1983). \nImportantly, a probable cause inquiry does not take each fact \nin isolation; it depends on the totality of the circumstances. \nDistrict of Columbia v. Wesby, 138 S. Ct. 577, 588 (2018). \nAssessing the hypothetical affidavit therefore requires us to \ndetermine whether Rainsberger’s behavior was suspicious \nenough that a prudent person aware of the full picture \npainted in the hypothetical affidavit could believe that \nRainsberger murdered his mother. \n A prudent person could not draw that conclusion on these \nfacts. Many of them would be true of most children of aging \nparents: that Rainsberger had a key to her apartment, checked \non her frequently, and stood (along with his siblings) to in‐\nherit whatever she left behind. These unremarkable facts \nwould be reason to suspect Rainsberger only if other infor‐\nmation cast them in a suspicious light. Benner sought that \nlight with his theory that Ruth was murdered by someone she \nknew rather than a thief. Yet the evidence on that score was \nconflicting: while some valuables remained in the apartment, \nothers were missing. Benner also suggested that Rains‐\nberger’s refusal to take a polygraph test reflected his con‐\nsciousness of guilt. But that inference is weak, given that Ben‐\nner had lured the Rainsberger children to the station with a \nlie and met them with a hostile demand for a polygraph test \nwhen they arrived. And the fact that Rainsberger tossed a \n\f14 No. 17‐2521 \n\npiece of trash into a garbage can in broad daylight on his way \ninto Kroger is neither here nor there. Without what a jury \ncould reasonably consider to be a grossly misleading descrip‐\ntion of the surveillance video, this trip to a trash can certainly \ndoes not support the inference that Rainsberger disposed of \nthe murder weapon before going to Ruth’s apartment. \n Benner’s best argument for turning this package of facts \ninto grounds for probable cause is that Rainsberger correctly \ndescribed his mother as having been hit in the head even \nthough he had not looked under the blanket. But this fact can‐\nnot carry the weight Benner needs it to. Rainsberger’s state‐\nment was a reasonable inference from observable evidence; \nhe walked into his mother’s house, saw her lying on the floor \nand bleeding from her head, and concluded that someone had \nhit her over the head. The cause of her injury was not so diffi‐\ncult to discern that knowing it suggested inside knowledge. \nIndeed, the emergency personnel thought that the first re‐\nsponder’s competing theory—that Ruth had been shot—was \ncounterintuitive, given the lack of telltale blood splatter on the \nwalls or ceiling. \n The totality of these circumstances supports nothing more \nthan bare suspicion, and the Court has emphasized that prob‐\nable cause requires more than that. See Brinegar v. United \nStates, 338 U.S. 160, 175 (1949) (probable cause “mean[s] more \nthan bare suspicion”); Henry v. United States, 361 U.S. 98, 104 \n(1959) (“Under our system suspicion is not enough for an of‐\nficer to lay hands on a citizen.”); see also Ebert v. Gaetz, 610 F.3d \n404, 413 (7th Cir. 2010) (“The officers must have more than a \nbare suspicion that they have the right guy … .”); Sherouse v. \nRatchner, 573 F.3d 1055, 1062 (10th Cir. 2009) (“Where an of‐\n\fNo. 17‐2521 15 \n\nficer observes inherently innocuous behavior that has plausi‐\nble innocent explanations, it takes more than speculation or \nmere possibility to give rise to probable cause to arrest.”). If \nprobable cause exists here, then anyone who experiences the \ntragedy of discovering a murdered family member—and who \ncorrectly assesses the cause of the injury and recently threw \nsomething away in a public trash can—can be arrested for \nmurder. Probable cause is a low bar, but this evidence does \nnot clear it. \n B. \n Benner tries to bolster the case for probable cause with in‐\nculpatory facts that he did not include in the aﬃdavit. For ex‐\nample, he asserts that in his training and experience as a hom‐\nicide detective, an attacker who covers his victim’s head often \nhas a personal relationship with the victim. He also says that \nin his experience, family members are typically eager to take \npolygraph tests so that the oﬃcer can get to work on finding \nthe real culprit. According to Benner, this additional infor‐\nmation can make up the diﬀerence if we think that the incul‐\npatory evidence recited in the aﬃdavit falls short. \n Benner recognizes that we have never incorporated incul‐\npatory evidence into a hypothetical aﬃdavit in a civil suit like \nthis.4 But we have never expressly refused to do so either, and \n\n \n4 That said, he does stretch for some support from Knox v. Smith, 342 F.3d \n\n651 (2003), which arose in the distinct context of a parole violation. In \nKnox, the plaintiff alleged that his parole officer lacked reasonable suspi‐\ncion to believe that he had violated the conditions of his parole when she \nrequested a warrant for his arrest on that ground. Id. at 656. He also al‐\nleged that at least one of the facts in the parole violation report prepared \nby the defendant and her supervisor was a lie. Id. at 658. According to \nBenner, Knox supports his “beyond the four corners” approach because \n\f16 No. 17‐2521 \n\nhe argues that now is the time for us to embrace this approach. \nAfter all, he says, we go outside the four corners of the aﬃda‐\nvit to consider omitted exculpatory evidence, so why not do \nthe same for omitted inculpatory evidence? He emphasizes \nthat oﬃcers do not have an obligation to include every incul‐\npatory detail in a probable cause aﬃdavit and warns that if \nwe decline to consider omitted inculpatory facts, oﬃcers will \nfeel forced to recite every detail in an aﬃdavit to bolster any \nlater claim of qualified immunity. He maintains that this \nwould be ineﬃcient and burdensome, particularly when the \ntimeline is tight. And he contends that this rule might prompt \noﬃcers to forgo warrants altogether, because if they are sued \nfor making a warrantless arrest, they can defend by drawing \non all available facts—not merely those they chose to include \nin an aﬃdavit—to demonstrate that probable cause existed. \n Benner’s argument is misguided. It assumes that this suit \nis about whether Benner violated the Fourth Amendment’s \nprohibition on “unreasonable searches and seizures” by ar‐\nresting Rainsberger without probable cause. But that is not \nthe allegation here. Rainsberger has sued Benner for violating \nthe Fourth Amendment’s guarantee that “no Warrants shall \n\n\n \nwe relied on inculpatory information that was outside the parole violation \nreport in concluding that the officer was entitled to qualified immunity. \nBut the parole violation report in Knox was not the same thing as a proba‐\nble cause affidavit; it was a document that the officer and her supervisor \nprepared the day after the warrant had issued. Id. at 655. Indeed, there \nwas no affidavit in Knox that could have marked the boundaries of our \ninquiry, because the parole officer requested a warrant via a page sent to \nher supervisor. Id. And Knox contains no discussion of what the officer’s \nsupervisor knew when the officer requested the warrant, much less the \n“four corners” issue that Benner raises. \n\fNo. 17‐2521 17 \n\nissue, but upon probable cause, supported by Oath or affir‐\nmation … .” U.S. CONST. amend. IV. The Warrant Clause is \nnot merely a probable‐cause guarantee. It is a guarantee that \na warrant will not issue unless a neutral and disinterested \nmagistrate independently decides that probable cause exists. \nFranks v. Delaware, 438 U.S. 154, 164 (1978) (“The bulwark of \nFourth Amendment protection, of course, is the Warrant \nClause, requiring that, absent certain exceptions, police obtain \na warrant from a neutral and disinterested magistrate before \nembarking upon a search.”); Johnson v. United States, 333 U.S. \n10, 14 (1948) (“Its protection consists in requiring that [eviden‐\ntiary] inferences be drawn by a neutral and detached magis‐\ntrate instead of being judged by the officer engaged in the of‐\nten competitive enterprise of ferreting out crime.”). A magis‐\ntrate can assess only the information that she is given; there‐\nfore, in testing the validity of a warrant, we consider only ev‐\nidence that the magistrate had.5 And “[i]f an affidavit is the \nonly matter presented to the issuing magistrate … the war‐\nrant must stand or fall solely on the contents of the affidavit.” \nUnited States v. Roth, 391 F.2d 507, 509 (1967); see also United \nStates v. Orozco, 576 F.3d 745, 748 (7th Cir. 2009) (“When, as \nhere, an affidavit is the only evidence presented to a judge to \nsupport a search warrant, the ‘validity of the warrant rests \n\n\n \n5 For the sake of clarity, we emphasize that inculpatory evidence not in‐\n\ncluded in the affidavit may be admissible with respect to an issue other \nthan whether the warrant demonstrates probable cause. For example, it \nmight be evidence of whether an officer acted knowingly or recklessly \nwhen he prepared the affidavit. See, e.g., United States v. Williams, 718 F.3d \n644, 650 (7th Cir. 2013) (noting that the officers’ omission of additional in‐\nculpatory evidence provided “a reasonable basis to believe that the police \ndid not intend to mislead”). \n\f18 No. 17‐2521 \n\nsolely on the strength of the affidavit.’” (citation omitted)). Ex‐\ntrinsic evidence of guilt “cannot be used … to augment an \notherwise defective affidavit.” Roth, 391 F.2d at 509; see also \nUnited States v. Harris, 464 F.3d 733, 739 (7th Cir. 2006) (“Con‐\nsidering new information … that supported a finding of prob‐\nable cause was beyond the trial court’s analytical reach. Ra‐\nther, its consideration of new information omitted from the \nwarrant affidavit should have been limited to facts that did \nnot support a finding of probable cause.”). \n Benner argues that a different rule should apply in a civil \ncase to give the police officer greater protection when his in‐\ndividual liability is on the line. But the first prong of the qual‐\nified immunity analysis is not the one designed to specially \nprotect the officer—that comes at the second prong, which \nlimits the officer’s liability to violations of clearly established \nlaw. In the first inquiry, we analyze whether the facts before \nus “make out a violation of a constitutional right.” Pearson, \n555 U.S. at 232. And the Fourth Amendment is violated when \nthe magistrate’s probable‐cause determination is made based \non an affidavit that fails to establish probable cause, no matter \nwhat extra‐affidavit information the officer had. Roth, 391 \nF.2d at 509; see also Orozco, 576 F.3d at 748. Moreover, while \nwe have never addressed the issue that Benner raises, we \nhave held that other aspects of Franks apply equally in civil \nand criminal cases. See Perlman v. City of Chicago, 801 F.2d 262, \n264–65 (7th Cir. 1986) (holding that Franks’s requirement of a \n“substantial preliminary showing” that the officer deliber‐\nately misrepresented facts in a warrant affidavit applies in \ncivil as well as criminal actions). There is no reason to follow \na different course here. See id. (asserting that there is “no rea‐\nson to apply a standard different than that established by \nFranks to a civil action for damages based on an allegation that \n\fNo. 17‐2521 19 \n\na police officer deliberately misrepresented facts in a warrant \naffidavit”). \n It bears emphasis that there is no lack of symmetry be‐\ntween our willingness to go beyond the affidavit to consider \nevidence of innocence while staying strictly within it for evi‐\ndence of guilt. Both rules are designed to protect the integrity \nof the warrant process. Refusing to add inculpatory infor‐\nmation to a hypothetical affidavit enforces the Warrant \nClause’s requirement that warrants issue based on the judg‐\nment of a neutral magistrate rather than that of an interested \npolice officer. Adding exculpatory information to a hypothet‐\nical affidavit permits us to determine whether the officer dis‐\ntorted the magistrate’s judgment by suppressing material ev‐\nidence.6 An affidavit that misleads by lies or omission under‐\ncuts the magistrate’s ability to make an independent probable \ncause determination. See Franks, 438 U.S. at 165 (“Because it is \nthe magistrate who must determine independently whether \nthere is probable cause, it would be an unthinkable imposi‐\ntion upon his authority if a warrant affidavit, revealed after \nthe fact to contain a deliberately or recklessly false statement, \nwere to stand beyond impeachment.” (citations omitted)). It \nalso vitiates the Clause’s requirement that probable cause be \nsupported by “Oath or affirmation.” As the Court has ob‐\nserved, this language demands a “truthful” showing “in the \n\n \n6 The same concern drives our practice of excluding false information from \n\na hypothetical affidavit. An affidavit that contains material lies contami‐\nnates the magistrate’s assessment of probable cause. If probable cause ex‐\nists without the lies, then the warrant issued on the strength of the hon‐\nestly sworn facts. It therefore satisfies the Fourth Amendment’s require‐\nment that a warrant issue only “upon probable cause” demonstrated by \nfacts “supported by Oath or affirmation.” U.S. CONST. amend. IV. \n\f20 No. 17‐2521 \n\nsense that the information put forth is believed or appropri‐\nately accepted by the affiant as true.” Id. An officer who \nswears that presented facts support probable cause when he \nknows that suppressed facts destroy it does not act truthfully. \nHe therefore violates the Warrant Clause, which “surely takes \nthe affiant’s good faith as its premise.” Id. at 164. \n In sum, Benner’s argument that he could have obtained a \nvalid warrant if he had proceeded differently is beside the \npoint. A hypothetical affidavit is not designed to determine \nwhether an officer could have satisfied the Warrant Clause; it \nis to determine whether he actually satisfied it. And Benner \ndid not, at least if the disputed facts are resolved in Rains‐\nberger’s favor. \n III. \n We now turn to the second prong of the qualified immun‐\nity analysis: whether it would have been “clear to a reasonable \noﬃcial that his or her conduct was unlawful in the situation.” \nCarvajal v. Dominguez, 542 F.3d 561, 566 (7th Cir. 2008). Benner \nargues that even if he violated Rainsberger’s Fourth Amend‐\nment rights, the district court still wrongfully denied him \nqualified immunity. He concedes—as he must—that it vio‐\nlates clearly established law “to use deliberately falsified alle‐\ngations to demonstrate probable cause.” Franks, 438 U.S. at \n168. Even so, Benner says, he is entitled to qualified immunity \nif the facts of the hypothetical aﬃdavit demonstrate “arguable \nprobable cause”—in other words, if a competent oﬃcer faced \nwith the facts in the hypothetical aﬃdavit could reasonably if \nmistakenly believe that those facts were suﬃcient to establish \nprobable cause. Benner’s argument takes some untangling, \nbut its logic is this: (1) only material lies and omissions violate \nthe Fourth Amendment, so the materiality of those lies and \n\fNo. 17‐2521 21 \n\nomissions must be clearly established; (2) the court evaluates \nmateriality by determining whether a hypothetical aﬃdavit \nwould demonstrate probable cause; (3) if a competent oﬃcer \nreviewing the hypothetical aﬃdavit could reasonably but \nmistakenly conclude that it established probable cause, then \nthe materiality of the false or omitted information was not \n“clearly established.” \n We have never applied the test that Benner proposes. \nThere is a reason: it doesn’t make sense. To begin with, Ben‐\nner’s framing has the proverbial reasonable oﬃcer facing a \nsituation diﬀerent from the one Benner did. Qualified immun‐\nity depends on whether it would have been “clear to a reason‐\nable oﬃcer that his conduct was unlawful in the situation he \nconfronted.” Wesby, 138 S. Ct. at 590 (emphasis added) (citation \nomitted). In other words, the court puts a competent oﬃcer in \nthe defendant’s shoes, facing the same choice that the defend‐\nant did. Benner did not face a choice about whether the facts \nin the hypothetical aﬃdavit established probable cause. He \nfaced a choice about whether to make false or misleading \nstatements in the aﬃdavit. (He has also been faulted for ex‐\ncluding exculpatory evidence, but that presents diﬀerent is‐\nsues that we’ll get to below.) Thus, the relevant question is \nwhat a well‐trained oﬃcer would have thought about the law‐\nfulness of that action. What Benner is really arguing, then, is \nthat he is entitled to qualified immunity if a well‐trained of‐\nficer could “reasonably but mistakenly conclude” that it was \nlawful to include an incriminating lie in an aﬃdavit because \nthe lie wasn’t material to the probable cause determination. \nSee Anderson v. Creighton, 483 U.S. 635, 641 (1987). \n Of course, a competent oﬃcer would not even entertain \nthe question whether it was lawful for him to lie in a probable \n\f22 No. 17‐2521 \n\ncause aﬃdavit. The hypothetical oﬃcer in the qualified im‐\nmunity analysis is one who acts in good faith. That is what the \nstandard of “objective reasonableness” is designed to capture. \nSee Harlow v. Fitzgerald, 457 U.S. 800, 815–19 (1982); Malley v. \nBriggs, 475 U.S. 335, 345 (1986); cf. United States v. Leon, 468 \nU.S. 897, 922–23 (1984) (establishing the “good faith excep‐\ntion” to the exclusionary rule). Indeed, protecting oﬃcers \nwho act in objective good faith is the justification for qualified \nimmunity. Harlow, 457 U.S. at 815, 819 n.34 (explaining that \nqualified immunity applies to suits “arising from actions \nwithin the scope of an oﬃcial’s duties and in objective good \nfaith” (emphasis added) (internal quotation omitted)). It \nwould be flatly inconsistent with that justification to imagine \na competent oﬃcer considering the question whether a lie \nhelpful to demonstrating probable cause is so helpful that he \nshould not tell it. That is neither a reasonable question to ask \nnor a reasonable mistake to make. \n Nonetheless, Benner maintains that we have previously \nembraced his approach. He seizes on a sentence in Betker v. \nGomez, in which we asserted that “[a]n officer who knowingly \nor recklessly submitted an affidavit containing false state‐\nments may still get qualified immunity if he can establish that \nhe had an objectively reasonable basis for believing the facts \nin the affidavit were sufficient to establish probable cause.” \nSee 692 F.3d at 860. Taken out of context, this sentence super‐\nficially supports Benner’s position that he is entitled to quali‐\nfied immunity if the hypothetical affidavit establishes “argu‐\nable probable cause.” But his cherry‐picking distorts what we \nactually said. In the very next sentence we explained: “But \nqualified immunity does not extend where an officer know‐\ningly or recklessly made false statements and ‘no accurate in‐\nformation sufficient to constitute probable cause attended the \n\fNo. 17‐2521 23 \n\nfalse statements.’” Id. (quoting Lawson v. Veruchi, 637 F.3d 699, \n705 (7th Cir. 2011)). Our analysis then proceeded as we do \nhere: we constructed a hypothetical affidavit, determined \nwhether it established actual probable cause, and denied \nqualified immunity because “immunity does not extend \n‘[w]here the judicial finding of probable cause is based solely \non information the officer knew to be false or would have \nknown was false had he not recklessly disregarded the \ntruth.’” Id. (alteration in original) (quoting Olson v. Tyler, 771 \nF.2d 277, 282 (7th Cir. 1985)). We never asked, much less ana‐\nlyzed, whether the officer in Betker had made a reasonable \nmistake about the materiality of his lies. \n To summarize: if an officer knowingly or recklessly in‐\ncludes false information in an affidavit and that information \nis not material, he will not be liable in a § 1983 action because \nthe plaintiff will not be able to prove a constitutional viola‐\ntion. But if that information is material, the officer is not enti‐\ntled to qualified immunity. The unlawfulness of using delib‐\nerately falsified allegations to establish probable cause could \nnot be clearer. See, e.g., Lawson, 637 F.3d at 705 (“[I]t [i]s clearly \nestablished ‘that a warrant request violates the Fourth \nAmendment if the requesting officer knowingly, intention‐\nally, or with reckless disregard for the truth, makes false state‐\nments in requesting the warrant and the false statements were \nnecessary to the determination that a warrant should issue.’” \n(citation omitted)); Olson, 771 F.2d at 281 (“If an officer sub‐\nmitted an affidavit that contained statements he knew to be \nfalse or would have known were false had he not recklessly \ndisregarded the truth and no accurate information sufficient \nto constitute probable cause attended the false statements, not \nonly is his conduct the active cause of the illegal arrest, but he \n\f24 No. 17‐2521 \n\ncannot be said to have acted in an objectively reasonable man‐\nner.”). And the plaintiff need not show that the materiality of \nthe lie would have been clear to a competent officer. The qual‐\nified immunity analysis uses the perspective of an officer act‐\ning in good faith, and an officer acting in good faith would \nnot entertain that question. \n An officer sued for failing to include materially \nexculpatory facts in a probable cause affidavit is differently \nsituated. It violates clearly established law to “intentionally or \nrecklessly withhold material information from a warrant \napplication.” Whitlock, 596 F.3d at 408. But while a competent \nofficer would not ask whether the Fourth Amendment \npermits him to tell a particular lie, a competent officer \nwould—indeed, must—consider whether the Fourth \nAmendment obligates him to disclose particular evidence. \nBecause an officer acting in good faith could make a \nreasonable mistake about his disclosure obligation, the \nmateriality of omitted facts, unlike the materiality of false \nstatements, is properly part of the qualified‐immunity \nanalysis. We have repeatedly held, therefore, that an officer \nviolates the Fourth Amendment by omission only if “it would \nhave been clear to a reasonable officer that the omitted fact \nwas material to the probable‐cause determination.” See Leaver \nv. Shortess, 844 F.3d 665, 669 (7th Cir. 2016); see also Olson v. \nTyler, 825 F.2d 1116, 1121 (7th Cir. 1987) (“[O]nly where a \nreasonable officer can conclude that a withheld fact is \nirrelevant to probable cause should such an officer who \nwithholds a known (or recklessly disregarded) fact be \nprotected with qualified immunity.”). \n Whitlock provides an illustration. See 596 F.3d 406. There, \ncampers picked up apparently abandoned bags in an Indiana \n\fNo. 17‐2521 25 \n\nstate park, intending to turn them in to park authorities so \nthat the property could be returned to its rightful owner. Id. \nat 408–09. But they forgot for several hours, the bags were re‐\nported stolen, and the campers were arrested for criminal \nconversion. Id. at 409. They sued the officer who obtained the \nwarrant, alleging that he withheld a material fact by failing to \ninclude the campers’ innocent explanation for taking the bags \nin his probable cause affidavit. Id. at 410. We held that the of‐\nficer was entitled to qualified immunity. Because Indiana law \non criminal conversion was undeveloped, a reasonable officer \nwould not necessarily have known that the campers’ explana‐\ntion for taking the bags was material to the probable cause \ndetermination. Id. at 413. A well‐trained officer could make a \nreasonable mistake about whether a given fact would negate \nprobable cause. \n Here, Benner has not argued that it would have been un‐\nclear to a reasonable oﬃcer that any of the information that \nhe omitted was material to the probable cause determination. \nThus, we need not address whether he made any reasonable \nmistakes in that regard. \n * * * \n The district court correctly held that Benner is not entitled \nto qualified immunity, and its judgment is AFFIRMED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4358951/", "author_raw": "BARRETT, Circuit Judge"}]}	WOOD	HAMILTON	BARRETT	1		{"WOOD": ", Chief", "HAMILTON": ", Circuit", "BARRETT": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4581698/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: William Rainsberger v. Charles Benner\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-15\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________ \nNo. 17‐2521 \nWILLIAM RAINSBERGER, \n Plaintiff‐Appellee, \n v. \n\nCHARLES BENNER, \n Defendant‐Appellant. \n ____________________ \n\n Appeal from the United States District Court for the \n Southern District of Indiana, Indianapolis Division. \n No. 1:16‐cv‐00103‐WTL‐MJD — William T. Lawrence, Judge. \n ____________________ \n\n ARGUED JANUARY 4, 2018 — DECIDED JANUARY 15, 2019 \n ____________________ \n\n Before WOOD, Chief Judge, and HAMILTON and BARRETT, \nCircuit Judges. \n BARRETT, Circuit Judge. William Rainsberger was charged \nwith murdering his elderly mother. But the detective who \nbuilt the case against him, Charles Benner, may have been dis‐\nhonest. According to Rainsberger, Benner submitted a proba‐\nble cause aﬃdavit that was riddled with lies and undercut by \nthe omission of exculpatory evidence. Based on that aﬃdavit, \nRainsberger was arrested, charged, and imprisoned for two \n\f2 No. 17‐2521 \n\nmonths. When the prosecutor dismissed the case because of \nevidentiary problems, Rainsberger sued Benner under 42 \nU.S.C. § 1983 for violating his Fourth Amendment rights. Ben‐\nner moved for summary judgment, arguing that he was enti‐\ntled to qualified immunity. The district court denied his mo‐\ntion, and he now asks us to reverse the district court. \n We decline to do so. Benner concedes for purposes of this \nappeal that he knowingly or recklessly made false statements \nin the probable cause affidavit. He emphasizes, however, that \nknowingly or recklessly misleading the magistrate in a prob‐\nable cause affidavit—whether by omissions or outright lies—\nonly violates the Fourth Amendment if the omissions and lies \nwere material to probable cause. He claims that his weren’t, \nbut we disagree. Materiality depends on whether the affidavit \ndemonstrates probable cause when the lies are taken out and \nthe exculpatory evidence is added in. And when that is done \nhere, Benner’s affidavit fails to establish probable cause to be‐\nlieve that Rainsberger murdered his mother. Because it is \nclearly established that it violates the Fourth Amendment “to \nuse deliberately falsified allegations to demonstrate probable \ncause,” Franks v. Delaware, 438 U.S. 154, 168 (1978), Benner is \nnot entitled to qualified immunity. \n I. \n We start with an issue that affects both appellate jurisdic‐\ntion and our rendition of the facts. This is an appeal from the \ndistrict court’s order denying Benner’s motion for summary \njudgment on the ground of qualified immunity. In the normal \ncourse, we lack jurisdiction to review an order denying sum‐\nmary judgment because it is not a “final decision” under 28 \nU.S.C. § 1291. See Gutierrez v. Kermon, 722 F.3d 1003, 1009 (7th \n\fNo. 17‐2521 3 \n\nCir. 2013). But because “qualified immunity is in part an enti‐\ntlement not to be forced to litigate the consequences of official \nconduct,” Mitchell v. Forsyth, 472 U.S. 511, 527 (1985), the de‐\nnial of qualified immunity is an appealable interlocutory de‐\ncision—at least insofar as it turns exclusively on a question of \nlaw, id. at 530. That qualification is significant: because our \nauthority extends only to questions of law, an officer can ob‐\ntain interlocutory review only if he refrains from contesting \nany fact that a reasonable jury could resolve against him. See \nJones v. Clark, 630 F.3d 677, 680 (7th Cir.2011) (“In a collateral‐\norder appeal …, where the defendants say that they accept \nthe plaintiff’s version of the facts, we will take them at their \nword and consider their legal arguments in that light. If, how‐\never, we detect a back‐door effort to contest the facts, we will \nreject it and dismiss the appeal for want of jurisdiction.”). \nBenner does so here. For purposes of this appeal, he accepts \nas true Rainsberger’s version of all facts that are in material \ndispute—most significantly, that he knowingly or recklessly \nmade false or misleading statements in the affidavit that se‐\ncured Rainsberger’s arrest. In what follows, then, we recount \nthe facts that we must take as true, drawing all inferences in \nRainsberger’s favor. The legal question that we must decide \nis whether Benner is entitled to qualified immunity on these \nfacts. \n A. \n Rainsberger was the primary caregiver for his mother, \nRuth, who was 88 years old and suﬀering from dementia.1 \nRuth lived alone in an apartment in a high‐crime area; Rains‐\nberger lived nearby. He checked on her daily, did her grocery \n \n1 We will refer to the other members of the Rainsberger family by their \n\nfirst names for the sake of clarity. \n\f4 No. 17‐2521 \n\nshopping, and handled her finances. His siblings Robert and \nRebecca also helped care for Ruth, although they saw her less \nfrequently. \n At approximately 3:30 p.m. on November 19, 2013, Rains‐\nberger went to Ruth’s apartment and found the door un‐\nlocked. When he entered, he discovered Ruth lying facedown \non the floor with a blanket covering her shoulders and head. \nShe was breathing, but with diﬃculty. There was a large circle \nof dried blood on the blanket and a pool of congealed blood \non the floor. Rainsberger did not remove the blanket because \nhe believed that it was acting as a bandage, and he feared that \nthe bleeding would increase if he pulled it oﬀ. \n Rainsberger called 911 from his mother’s landline at 3:37 \np.m. He told the operator that someone had “bashed [his \nmother’s] head in.” He then called his brother Robert and told \nhim to come to the apartment immediately. Rainsberger \nwaited outside for the ambulance because Ruth’s apartment \nwas diﬃcult to locate within the complex. \n When paramedic Carl Wooldridge arrived, Rainsberger \ntold him that someone had “caved his mother’s head in.” \nWooldridge observed that the blanket covering Ruth’s head \nappeared to be stuck to a wound. He noticed “somewhat of a \nhole in [the blanket] where the wound was,” and when he \npeeled the blanket oﬀ, “there was a mark … on her forehead \nthat [he] believed to be an entrance wound.” Based on those \nobservations, Wooldridge told fire and ambulance personnel \nthat Ruth had been shot—a conclusion that the emergency \npersonnel thought odd, given the lack of blood splatter on the \nwalls or ceiling. As it turned out, Rainsberger, not \nWooldridge, had it right: Ruth died of blunt force trauma to \nthe head. Wooldridge later told Charles Benner, the detective \n\fNo. 17‐2521 5 \n\ninvestigating the murder, that he found it suspicious that \nRainsberger said that his mother’s head had been caved in \neven though he had not removed the blanket to look at her \ninjuries. \n Benner came to Ruth’s apartment roughly 40 minutes after \nRainsberger placed the 911 call. There was no sign of forced \nentry, and while some dresser drawers in Ruth’s bedroom \nwere open, their contents were undisturbed. Ruth’s check‐\nbook, credit cards, and some cash were found in the apart‐\nment. Her purse and prescription medication were not. \n Rainsberger and Robert, who had since arrived, voluntar‐\nily went to police headquarters to give statements to Benner. \nRainsberger said that he had last seen his mother the previous \nevening. After visiting her, he drove to Plainfield, which is \nroughly 25 miles away, to spend the evening with his wife. \nHe returned to his house the next morning, where he stayed \nuntil around 3:30 p.m. He then left home to check on his \nmother, stopping at Kroger on the way to buy an iced tea. He \ntold Benner that Ruth’s apartment was unlocked when he ar‐\nrived and that he found her lying wounded on the floor. He \nchecked the apartment for intruders and, finding none, called \n911. Rainsberger informed Benner that his mother was not \nphysically able to stand up and see through the peephole, so \nshe typically had to open the door to see who was there. And \nRainsberger said that Ruth had $80,000 to $100,000 in savings \nthat would be distributed to her three children upon her \ndeath. \n Robert told Benner that he had not seen Ruth for a few \ndays. He said that he had been at Rainsberger’s house when \nRainsberger called to tell him to come to Ruth’s apartment im‐\n\f6 No. 17‐2521 \n\nmediately. He explained that he had been living with Rains‐\nberger for a few months because he had lost his own home to \nforeclosure. \n Benner talked to Rainsberger’s sister Rebecca the next day. \nRebecca told Benner that she typically checked on her mother \nonce a week and had last seen her the day before the attack. \nSometime after his call with Rebecca, Benner asked the three \nsiblings to come to the station to review the results of Ruth’s \nautopsy. When they got there, however, Benner did not talk \nabout the autopsy. Instead, he accused Rainsberger and Rob‐\nert of murdering their mother for her money and asked them \nto take a polygraph. Upset at the accusation and at being \nlured to the station under false pretenses, they refused and \nleft. Roughly a week later, after obtaining counsel to represent \nthem, both Rainsberger and Robert agreed to go to the station \nto give fingerprints and submit to a DNA buccal swab. \n Benner did not wait for the results of the DNA tests before \nseeking to have Rainsberger arrested and charged. In early \nDecember 2013, Benner submitted a probable cause aﬃdavit \nto the Marion County prosecutor. But the prosecutor declined \nto pursue it, and Benner went back to find more evidence. \n Benner hoped that the results of the DNA tests would \nmake his case against Rainsberger. In March 2014, he noted in \nan email to a colleague that “[t]he victim’s sons are the sus‐\npects in this case and I am waiting for DNA results before any \narrest may be made.” But when the laboratory report came \nout in April 2014, it did not implicate Rainsberger—the DNA \nof two males was found on Ruth’s blanket and clothing, but \nneither Rainsberger nor Robert was a match. Benner took that \nresult in stride. Although the DNA test did not incriminate \n\fNo. 17‐2521 7 \n\nRainsberger, Benner did not think that it exonerated him ei‐\nther. (The same, of course, was true of Robert, but Benner was \nfocused on Rainsberger.) Benner reasoned that the unknown \nmale DNA on Ruth’s blanket and clothing might have been \nleft by emergency personnel rather than the killer. \n In May 2014, Benner went to the prosecutor with a second \nprobable cause aﬃdavit that was almost identical to the first. \nThe second aﬃdavit did not disclose the results of the DNA \ntest. But it added two pieces of evidence that Benner had ac‐\nquired since he presented the prosecutor with the first aﬃda‐\nvit. First, Benner used cell phone records to suggest that \nRainsberger had called Robert from Ruth’s apartment at 2:40 \np.m.—hours after Ruth was attacked and a little more than an \nhour before Rainsberger called 911. Second, he stated that cell \nphone tower location data could not place Rainsberger out‐\nside the area of his mother’s apartment during the relevant \nperiod. After receiving the second probable cause aﬃdavit, \nthe prosecutor went to Marion County Court and obtained a \nwarrant for Rainsberger’s arrest. Rainsberger was charged \nwith his mother’s murder and spent two months in jail before \nhe was released on bail. The prosecutor dismissed the case a \nyear later because of evidentiary problems. \n B. \n After the charges were dropped, Rainsberger sued Benner \nunder 42 U.S.C. § 1983, alleging that Benner had violated his \nFourth Amendment rights. Benner moved for summary judg‐\nment on the basis of qualified immunity, but the district court \ndenied the motion. It decided that a reasonable jury could find \nthat Benner knowingly or with reckless disregard for the truth \nmade false or misleading statements in the aﬃdavit. Probable \ncause did not exist without the false or misleading statements, \n\f8 No. 17‐2521 \n\nthe district court said, and because an oﬃcer who submits a \nmaterially misleading probable cause aﬃdavit violates \nclearly established Fourth Amendment law, it denied Benner \nqualified immunity. The district court’s order turned on the \nfollowing omissions and alleged lies.2 \n The phone records. The most damning addition to the sec‐\nond probable cause aﬃdavit was the suggestion that Rains‐\nberger called Robert’s cell phone from Ruth’s landline at 2:40 \np.m. on November 19. This placed Rainsberger at Ruth’s \napartment after she was injured and almost an hour before he \ncalled 911 for help. But the time stamp was inaccurate—and \nfor purposes of this appeal, we must assume that Benner \nknew it. A phone expert at the police department had ana‐\nlyzed the records and told Benner that the call had been \nrouted through a cell tower in Chicago, where it was one hour \nearlier. Thus, despite the 2:40 p.m. time stamp, the call had \nbeen placed at 3:40 p.m. Indianapolis time. It was the call that \nRainsberger had made to Robert just after he found Ruth and \ncalled 911. Benner chose to use the inaccurate and incriminat‐\ning time in his aﬃdavit. \n The Kroger video. Rainsberger had stopped at Kroger to buy \nan iced tea before going to Ruth’s apartment on the day of the \n\n \n2 Rainsberger complains about omissions in addition to those we detail \n\nhere. For example, he faults Benner for failing to include the results of the \nDNA test, the fact that Ruth lived in a high‐crime area, and the fact that \nshe would often open the door to strangers because she couldn’t see \nthrough the peephole. The district court chose not to determine whether \nthis information was material because it found probable cause lacking \neven without it. Because we agree that the hypothetical affidavit fails to \nestablish probable cause even without this evidence, we take the same ap‐\nproach as the district court. \n\fNo. 17‐2521 9 \n\nmurder. In the probable cause aﬃdavit, Benner described sur‐\nveillance video from Kroger that showed Rainsberger making \na trip to a trash can. According to Benner, Rainsberger “ap‐\npeared to pull out a straight object from his person which he \nplaced in the garbage can.” But the district court observed that \nnothing on the video shows Rainsberger “‘pulling’ the object \nfrom anywhere.” Benner also claimed that “[a]s [Rainsberger] \nplaced the object in the trash he appeared to look around for \ncameras.” But as the district court said, a reasonable jury \ncould find that Benner deliberately mischaracterized Rains‐\nberger’s behavior, which does not appear furtive on the video. \nAnd after watching the video ourselves, we agree with Rains‐\nberger that a reasonable jury could find that Benner intention‐\nally misled the prosecutor and magistrate in yet another re‐\nspect: by describing Rainsberger’s trash as a “straight object.” \nThat phrase was obviously designed to imply that Rains‐\nberger disposed of the murder weapon, but the object that \nRainsberger threw away looks far more like a soda can than a \n“straight object.”3 Viewed in Rainsberger’s favor, the video \ndepicts him carrying a small nondescript piece of trash \nthrough a parking lot and throwing it away near the entrance \nto the grocery store—in broad daylight and while other pa‐\ntrons are walking by. \n The evidence of burglary. Benner believed that Ruth’s at‐\ntacker was someone she knew rather than a thief. Consistent \nwith that theory, Benner swore in the aﬃdavit that nothing \n\n \n3 The district court did not address the shape of the trash, and its hypo‐\n\nthetical affidavit left intact Benner’s statement that “Rainsberger placed \nwhat appeared to be a straight object in the garbage can.” After viewing \nthe video in the light most favorable to Rainsberger, we refer to the waste \nsimply as “trash” in evaluating the affidavit. \n\f10 No. 17‐2521 \n\nhad been taken from the apartment. He noted that there was \nno sign of forced entry; that cash, a checkbook, and credit \ncards were still in the apartment; and that things were undis‐\nturbed apart from a few open drawers. But the district court \nconcluded that a jury could find that Benner intentionally \nmisled the prosecutor and magistrate in two respects. First, he \nfailed to tell them that Ruth’s purse and prescription medica‐\ntion were missing. Second, he stated that a lockbox containing \nsavings bonds was untouched and in plain view, even though \nthe lockbox was neither in plain view nor a repository of sav‐\nings bonds. \n Rainsberger’s concern for his mother. Benner described \nRainsberger as lacking concern for his mother. He stated that \nafter Rainsberger called 911, he “went outside to wait for the \nambulance” and “left his mother unattended until the police \narrived.” Benner conspicuously omitted Rainsberger’s expla‐\nnation for doing so—that he wanted to direct the ambulance \nto Ruth’s apartment, which was hard to find. And continuing \nwith this “callous son” theme, Benner asserted that when they \nwere questioned on the day of the attack, “[a]t no time did \nRobert or his brother, Rainsberger, ever ask me how their \nmom was doing or if they could get to the hospital to see her.” \nBenner knew, however, that Rainsberger was receiving up‐\ndates by text from his sister Rebecca, who was at the hospital, \nand that Rainsberger had expressed concern about how he \nwould get to the hospital from the police station. The district \ncourt concluded that a reasonable jury could find that Benner \nintentionally misled the prosecutor and magistrate. \n The polygraph. Benner claimed in the aﬃdavit that the \nRainsberger children “stormed out” of the police station after \nhe asked Rainsberger and Robert to take a polygraph test and \n\fNo. 17‐2521 11 \n\nthat he did not hear from them again. According to the district \ncourt, a reasonable jury could agree with Rainsberger that \nBenner’s description of the Rainsbergers’ departure was a lie, \nas was his claim that he didn’t hear from them again. \n II. \n Before us, Benner insists that he is entitled to qualified im‐\nmunity even if all of the disputed facts are true. Qualified im‐\nmunity involves a two‐pronged inquiry: (1) whether the facts, \nread in favor of the non‐moving party, amount to a constitu‐\ntional violation; and (2) whether the constitutional right was \nclearly established at the time of the alleged violation. McCo‐\nmas v. Brickley, 673 F.3d 722, 725 (7th Cir. 2012). The oﬃcer \nwins if the answer to either question is “no.” Jacobs v. City of \nChicago, 215 F.3d 758, 766 (7th Cir. 2000). Courts often start \nwith the second question, because if the law was not clearly \nestablished, there is no need to tackle the (often harder) ques‐\ntion whether the challenged conduct violated the Constitu‐\ntion. See Pearson v. Callahan, 555 U.S. 223, 236–42 (2009). This \ncase requires us to confront both issues, however, so we begin \nby analyzing whether Benner’s alleged conduct violated \nRainsberger’s Fourth Amendment rights. \n A. \n An officer violates the Fourth Amendment if he intention‐\nally or recklessly includes false statements in a warrant appli‐\ncation and those false statements were material to a finding of \nprobable cause. Hart v. Mannina, 798 F.3d 578, 591 (7th Cir. \n2015). An officer similarly violates the Fourth Amendment if \nhe intentionally or recklessly withholds material information \nfrom a probable cause affidavit. Whitlock v. Brown, 596 F.3d \n406, 410–11 (7th Cir. 2010). We use a straightforward method \n\f12 No. 17‐2521 \n\nto determine whether the alleged lies or omissions are mate‐\nrial: “We eliminate the alleged false statements, incorporate \nany allegedly omitted facts, and then evaluate whether the re‐\nsulting ‘hypothetical’ affidavit would establish probable \ncause.” Betker v. Gomez, 692 F.3d 854, 862 (7th Cir. 2012). \n With the lies stripped and the omissions added, Benner’s \ncase for probable cause boils down to this: Ruth’s murderer \nmight have been someone she knew, because the attack was \nnot necessarily connected to a burglary. Some drawers had \nbeen opened and her purse and medication were missing; at \nthe same time, there was no sign of a forced entry, and Ruth’s \ncheckbook, credit cards, and some cash were still in the apart‐\nment. Rainsberger had a key to her apartment, and cell phone \nrecords did not rule out the possibility that he was in the vi‐\ncinity of her apartment complex when the attack happened. \nShortly before he found his mother and called 911, Rains‐\nberger stopped at a Kroger across the street from his mother’s \napartment to buy an iced tea. He walked in plain view \nthrough the Kroger parking lot carrying a piece of trash, \nwhich he threw away in a receptacle by a Redbox machine on \nhis way into the store. He correctly described Ruth’s injury as \na blow to the head, even though he had not removed the blan‐\nket to see the wound. In contrast, the first responder, who did \nremove the blanket, initially thought that Ruth had been shot. \nRainsberger and his two siblings would inherit about $33,000 \napiece if his mother died. When Benner brought the Rains‐\nberger children to the police station under false pretenses, \nRainsberger and his brother refused Benner’s request that \nthey take a polygraph test. A week later, they voluntarily gave \nfingerprints and submitted to a DNA buccal swab. \n\fNo. 17‐2521 13 \n\n As we have explained before, “probable cause is a \ncommon‐sense inquiry requiring only a probability of \ncriminal activity; it exists whenever an officer or a court has \nenough information to warrant a prudent person to believe \ncriminal conduct has occurred.” Whitlock, 596 F.3d at 411. It \ndoes not require proof of a crime; it is about “the degree of \nsuspicion that attaches to particular types of non‐criminal \nacts.” Illinois v. Gates, 462 U.S. 213, 243 n.13 (1983). \nImportantly, a probable cause inquiry does not take each fact \nin isolation; it depends on the totality of the circumstances. \nDistrict of Columbia v. Wesby, 138 S. Ct. 577, 588 (2018). \nAssessing the hypothetical affidavit therefore requires us to \ndetermine whether Rainsberger’s behavior was suspicious \nenough that a prudent person aware of the full picture \npainted in the hypothetical affidavit could believe that \nRainsberger murdered his mother. \n A prudent person could not draw that conclusion on these \nfacts. Many of them would be true of most children of aging \nparents: that Rainsberger had a key to her apartment, checked \non her frequently, and stood (along with his siblings) to in‐\nherit whatever she left behind. These unremarkable facts \nwould be reason to suspect Rainsberger only if other infor‐\nmation cast them in a suspicious light. Benner sought that \nlight with his theory that Ruth was murdered by someone she \nknew rather than a thief. Yet the evidence on that score was \nconflicting: while some valuables remained in the apartment, \nothers were missing. Benner also suggested that Rains‐\nberger’s refusal to take a polygraph test reflected his con‐\nsciousness of guilt. But that inference is weak, given that Ben‐\nner had lured the Rainsberger children to the station with a \nlie and met them with a hostile demand for a polygraph test \nwhen they arrived. And the fact that Rainsberger tossed a \n\f14 No. 17‐2521 \n\npiece of trash into a garbage can in broad daylight on his way \ninto Kroger is neither here nor there. Without what a jury \ncould reasonably consider to be a grossly misleading descrip‐\ntion of the surveillance video, this trip to a trash can certainly \ndoes not support the inference that Rainsberger disposed of \nthe murder weapon before going to Ruth’s apartment. \n Benner’s best argument for turning this package of facts \ninto grounds for probable cause is that Rainsberger correctly \ndescribed his mother as having been hit in the head even \nthough he had not looked under the blanket. But this fact can‐\nnot carry the weight Benner needs it to. Rainsberger’s state‐\nment was a reasonable inference from observable evidence; \nhe walked into his mother’s house, saw her lying on the floor \nand bleeding from her head, and concluded that someone had \nhit her over the head. The cause of her injury was not so diffi‐\ncult to discern that knowing it suggested inside knowledge. \nIndeed, the emergency personnel thought that the first re‐\nsponder’s competing theory—that Ruth had been shot—was \ncounterintuitive, given the lack of telltale blood splatter on the \nwalls or ceiling. \n The totality of these circumstances supports nothing more \nthan bare suspicion, and the Court has emphasized that prob‐\nable cause requires more than that. See Brinegar v. United \nStates, 338 U.S. 160, 175 (1949) (probable cause “mean[s] more \nthan bare suspicion”); Henry v. United States, 361 U.S. 98, 104 \n(1959) (“Under our system suspicion is not enough for an of‐\nficer to lay hands on a citizen.”); see also Ebert v. Gaetz, 610 F.3d \n404, 413 (7th Cir. 2010) (“The officers must have more than a \nbare suspicion that they have the right guy … .”); Sherouse v. \nRatchner, 573 F.3d 1055, 1062 (10th Cir. 2009) (“Where an of‐\n\fNo. 17‐2521 15 \n\nficer observes inherently innocuous behavior that has plausi‐\nble innocent explanations, it takes more than speculation or \nmere possibility to give rise to probable cause to arrest.”). If \nprobable cause exists here, then anyone who experiences the \ntragedy of discovering a murdered family member—and who \ncorrectly assesses the cause of the injury and recently threw \nsomething away in a public trash can—can be arrested for \nmurder. Probable cause is a low bar, but this evidence does \nnot clear it. \n B. \n Benner tries to bolster the case for probable cause with in‐\nculpatory facts that he did not include in the aﬃdavit. For ex‐\nample, he asserts that in his training and experience as a hom‐\nicide detective, an attacker who covers his victim’s head often \nhas a personal relationship with the victim. He also says that \nin his experience, family members are typically eager to take \npolygraph tests so that the oﬃcer can get to work on finding \nthe real culprit. According to Benner, this additional infor‐\nmation can make up the diﬀerence if we think that the incul‐\npatory evidence recited in the aﬃdavit falls short. \n Benner recognizes that we have never incorporated incul‐\npatory evidence into a hypothetical aﬃdavit in a civil suit like \nthis.4 But we have never expressly refused to do so either, and \n\n \n4 That said, he does stretch for some support from Knox v. Smith, 342 F.3d \n\n651 (2003), which arose in the distinct context of a parole violation. In \nKnox, the plaintiff alleged that his parole officer lacked reasonable suspi‐\ncion to believe that he had violated the conditions of his parole when she \nrequested a warrant for his arrest on that ground. Id. at 656. He also al‐\nleged that at least one of the facts in the parole violation report prepared \nby the defendant and her supervisor was a lie. Id. at 658. According to \nBenner, Knox supports his “beyond the four corners” approach because \n\f16 No. 17‐2521 \n\nhe argues that now is the time for us to embrace this approach. \nAfter all, he says, we go outside the four corners of the aﬃda‐\nvit to consider omitted exculpatory evidence, so why not do \nthe same for omitted inculpatory evidence? He emphasizes \nthat oﬃcers do not have an obligation to include every incul‐\npatory detail in a probable cause aﬃdavit and warns that if \nwe decline to consider omitted inculpatory facts, oﬃcers will \nfeel forced to recite every detail in an aﬃdavit to bolster any \nlater claim of qualified immunity. He maintains that this \nwould be ineﬃcient and burdensome, particularly when the \ntimeline is tight. And he contends that this rule might prompt \noﬃcers to forgo warrants altogether, because if they are sued \nfor making a warrantless arrest, they can defend by drawing \non all available facts—not merely those they chose to include \nin an aﬃdavit—to demonstrate that probable cause existed. \n Benner’s argument is misguided. It assumes that this suit \nis about whether Benner violated the Fourth Amendment’s \nprohibition on “unreasonable searches and seizures” by ar‐\nresting Rainsberger without probable cause. But that is not \nthe allegation here. Rainsberger has sued Benner for violating \nthe Fourth Amendment’s guarantee that “no Warrants shall \n\n\n \nwe relied on inculpatory information that was outside the parole violation \nreport in concluding that the officer was entitled to qualified immunity. \nBut the parole violation report in Knox was not the same thing as a proba‐\nble cause affidavit; it was a document that the officer and her supervisor \nprepared the day after the warrant had issued. Id. at 655. Indeed, there \nwas no affidavit in Knox that could have marked the boundaries of our \ninquiry, because the parole officer requested a warrant via a page sent to \nher supervisor. Id. And Knox contains no discussion of what the officer’s \nsupervisor knew when the officer requested the warrant, much less the \n“four corners” issue that Benner raises. \n\fNo. 17‐2521 17 \n\nissue, but upon probable cause, supported by Oath or affir‐\nmation … .” U.S. CONST. amend. IV. The Warrant Clause is \nnot merely a probable‐cause guarantee. It is a guarantee that \na warrant will not issue unless a neutral and disinterested \nmagistrate independently decides that probable cause exists. \nFranks v. Delaware, 438 U.S. 154, 164 (1978) (“The bulwark of \nFourth Amendment protection, of course, is the Warrant \nClause, requiring that, absent certain exceptions, police obtain \na warrant from a neutral and disinterested magistrate before \nembarking upon a search.”); Johnson v. United States, 333 U.S. \n10, 14 (1948) (“Its protection consists in requiring that [eviden‐\ntiary] inferences be drawn by a neutral and detached magis‐\ntrate instead of being judged by the officer engaged in the of‐\nten competitive enterprise of ferreting out crime.”). A magis‐\ntrate can assess only the information that she is given; there‐\nfore, in testing the validity of a warrant, we consider only ev‐\nidence that the magistrate had.5 And “[i]f an affidavit is the \nonly matter presented to the issuing magistrate … the war‐\nrant must stand or fall solely on the contents of the affidavit.” \nUnited States v. Roth, 391 F.2d 507, 509 (1967); see also United \nStates v. Orozco, 576 F.3d 745, 748 (7th Cir. 2009) (“When, as \nhere, an affidavit is the only evidence presented to a judge to \nsupport a search warrant, the ‘validity of the warrant rests \n\n\n \n5 For the sake of clarity, we emphasize that inculpatory evidence not in‐\n\ncluded in the affidavit may be admissible with respect to an issue other \nthan whether the warrant demonstrates probable cause. For example, it \nmight be evidence of whether an officer acted knowingly or recklessly \nwhen he prepared the affidavit. See, e.g., United States v. Williams, 718 F.3d \n644, 650 (7th Cir. 2013) (noting that the officers’ omission of additional in‐\nculpatory evidence provided “a reasonable basis to believe that the police \ndid not intend to mislead”). \n\f18 No. 17‐2521 \n\nsolely on the strength of the affidavit.’” (citation omitted)). Ex‐\ntrinsic evidence of guilt “cannot be used … to augment an \notherwise defective affidavit.” Roth, 391 F.2d at 509; see also \nUnited States v. Harris, 464 F.3d 733, 739 (7th Cir. 2006) (“Con‐\nsidering new information … that supported a finding of prob‐\nable cause was beyond the trial court’s analytical reach. Ra‐\nther, its consideration of new information omitted from the \nwarrant affidavit should have been limited to facts that did \nnot support a finding of probable cause.”). \n Benner argues that a different rule should apply in a civil \ncase to give the police officer greater protection when his in‐\ndividual liability is on the line. But the first prong of the qual‐\nified immunity analysis is not the one designed to specially \nprotect the officer—that comes at the second prong, which \nlimits the officer’s liability to violations of clearly established \nlaw. In the first inquiry, we analyze whether the facts before \nus “make out a violation of a constitutional right.” Pearson, \n555 U.S. at 232. And the Fourth Amendment is violated when \nthe magistrate’s probable‐cause determination is made based \non an affidavit that fails to establish probable cause, no matter \nwhat extra‐affidavit information the officer had. Roth, 391 \nF.2d at 509; see also Orozco, 576 F.3d at 748. Moreover, while \nwe have never addressed the issue that Benner raises, we \nhave held that other aspects of Franks apply equally in civil \nand criminal cases. See Perlman v. City of Chicago, 801 F.2d 262, \n264–65 (7th Cir. 1986) (holding that Franks’s requirement of a \n“substantial preliminary showing” that the officer deliber‐\nately misrepresented facts in a warrant affidavit applies in \ncivil as well as criminal actions). There is no reason to follow \na different course here. See id. (asserting that there is “no rea‐\nson to apply a standard different than that established by \nFranks to a civil action for damages based on an allegation that \n\fNo. 17‐2521 19 \n\na police officer deliberately misrepresented facts in a warrant \naffidavit”). \n It bears emphasis that there is no lack of symmetry be‐\ntween our willingness to go beyond the affidavit to consider \nevidence of innocence while staying strictly within it for evi‐\ndence of guilt. Both rules are designed to protect the integrity \nof the warrant process. Refusing to add inculpatory infor‐\nmation to a hypothetical affidavit enforces the Warrant \nClause’s requirement that warrants issue based on the judg‐\nment of a neutral magistrate rather than that of an interested \npolice officer. Adding exculpatory information to a hypothet‐\nical affidavit permits us to determine whether the officer dis‐\ntorted the magistrate’s judgment by suppressing material ev‐\nidence.6 An affidavit that misleads by lies or omission under‐\ncuts the magistrate’s ability to make an independent probable \ncause determination. See Franks, 438 U.S. at 165 (“Because it is \nthe magistrate who must determine independently whether \nthere is probable cause, it would be an unthinkable imposi‐\ntion upon his authority if a warrant affidavit, revealed after \nthe fact to contain a deliberately or recklessly false statement, \nwere to stand beyond impeachment.” (citations omitted)). It \nalso vitiates the Clause’s requirement that probable cause be \nsupported by “Oath or affirmation.” As the Court has ob‐\nserved, this language demands a “truthful” showing “in the \n\n \n6 The same concern drives our practice of excluding false information from \n\na hypothetical affidavit. An affidavit that contains material lies contami‐\nnates the magistrate’s assessment of probable cause. If probable cause ex‐\nists without the lies, then the warrant issued on the strength of the hon‐\nestly sworn facts. It therefore satisfies the Fourth Amendment’s require‐\nment that a warrant issue only “upon probable cause” demonstrated by \nfacts “supported by Oath or affirmation.” U.S. CONST. amend. IV. \n\f20 No. 17‐2521 \n\nsense that the information put forth is believed or appropri‐\nately accepted by the affiant as true.” Id. An officer who \nswears that presented facts support probable cause when he \nknows that suppressed facts destroy it does not act truthfully. \nHe therefore violates the Warrant Clause, which “surely takes \nthe affiant’s good faith as its premise.” Id. at 164. \n In sum, Benner’s argument that he could have obtained a \nvalid warrant if he had proceeded differently is beside the \npoint. A hypothetical affidavit is not designed to determine \nwhether an officer could have satisfied the Warrant Clause; it \nis to determine whether he actually satisfied it. And Benner \ndid not, at least if the disputed facts are resolved in Rains‐\nberger’s favor. \n III. \n We now turn to the second prong of the qualified immun‐\nity analysis: whether it would have been “clear to a reasonable \noﬃcial that his or her conduct was unlawful in the situation.” \nCarvajal v. Dominguez, 542 F.3d 561, 566 (7th Cir. 2008). Benner \nargues that even if he violated Rainsberger’s Fourth Amend‐\nment rights, the district court still wrongfully denied him \nqualified immunity. He concedes—as he must—that it vio‐\nlates clearly established law “to use deliberately falsified alle‐\ngations to demonstrate probable cause.” Franks, 438 U.S. at \n168. Even so, Benner says, he is entitled to qualified immunity \nif the facts of the hypothetical aﬃdavit demonstrate “arguable \nprobable cause”—in other words, if a competent oﬃcer faced \nwith the facts in the hypothetical aﬃdavit could reasonably if \nmistakenly believe that those facts were suﬃcient to establish \nprobable cause. Benner’s argument takes some untangling, \nbut its logic is this: (1) only material lies and omissions violate \nthe Fourth Amendment, so the materiality of those lies and \n\fNo. 17‐2521 21 \n\nomissions must be clearly established; (2) the court evaluates \nmateriality by determining whether a hypothetical aﬃdavit \nwould demonstrate probable cause; (3) if a competent oﬃcer \nreviewing the hypothetical aﬃdavit could reasonably but \nmistakenly conclude that it established probable cause, then \nthe materiality of the false or omitted information was not \n“clearly established.” \n We have never applied the test that Benner proposes. \nThere is a reason: it doesn’t make sense. To begin with, Ben‐\nner’s framing has the proverbial reasonable oﬃcer facing a \nsituation diﬀerent from the one Benner did. Qualified immun‐\nity depends on whether it would have been “clear to a reason‐\nable oﬃcer that his conduct was unlawful in the situation he \nconfronted.” Wesby, 138 S. Ct. at 590 (emphasis added) (citation \nomitted). In other words, the court puts a competent oﬃcer in \nthe defendant’s shoes, facing the same choice that the defend‐\nant did. Benner did not face a choice about whether the facts \nin the hypothetical aﬃdavit established probable cause. He \nfaced a choice about whether to make false or misleading \nstatements in the aﬃdavit. (He has also been faulted for ex‐\ncluding exculpatory evidence, but that presents diﬀerent is‐\nsues that we’ll get to below.) Thus, the relevant question is \nwhat a well‐trained oﬃcer would have thought about the law‐\nfulness of that action. What Benner is really arguing, then, is \nthat he is entitled to qualified immunity if a well‐trained of‐\nficer could “reasonably but mistakenly conclude” that it was \nlawful to include an incriminating lie in an aﬃdavit because \nthe lie wasn’t material to the probable cause determination. \nSee Anderson v. Creighton, 483 U.S. 635, 641 (1987). \n Of course, a competent oﬃcer would not even entertain \nthe question whether it was lawful for him to lie in a probable \n\f22 No. 17‐2521 \n\ncause aﬃdavit. The hypothetical oﬃcer in the qualified im‐\nmunity analysis is one who acts in good faith. That is what the \nstandard of “objective reasonableness” is designed to capture. \nSee Harlow v. Fitzgerald, 457 U.S. 800, 815–19 (1982); Malley v. \nBriggs, 475 U.S. 335, 345 (1986); cf. United States v. Leon, 468 \nU.S. 897, 922–23 (1984) (establishing the “good faith excep‐\ntion” to the exclusionary rule). Indeed, protecting oﬃcers \nwho act in objective good faith is the justification for qualified \nimmunity. Harlow, 457 U.S. at 815, 819 n.34 (explaining that \nqualified immunity applies to suits “arising from actions \nwithin the scope of an oﬃcial’s duties and in objective good \nfaith” (emphasis added) (internal quotation omitted)). It \nwould be flatly inconsistent with that justification to imagine \na competent oﬃcer considering the question whether a lie \nhelpful to demonstrating probable cause is so helpful that he \nshould not tell it. That is neither a reasonable question to ask \nnor a reasonable mistake to make. \n Nonetheless, Benner maintains that we have previously \nembraced his approach. He seizes on a sentence in Betker v. \nGomez, in which we asserted that “[a]n officer who knowingly \nor recklessly submitted an affidavit containing false state‐\nments may still get qualified immunity if he can establish that \nhe had an objectively reasonable basis for believing the facts \nin the affidavit were sufficient to establish probable cause.” \nSee 692 F.3d at 860. Taken out of context, this sentence super‐\nficially supports Benner’s position that he is entitled to quali‐\nfied immunity if the hypothetical affidavit establishes “argu‐\nable probable cause.” But his cherry‐picking distorts what we \nactually said. In the very next sentence we explained: “But \nqualified immunity does not extend where an officer know‐\ningly or recklessly made false statements and ‘no accurate in‐\nformation sufficient to constitute probable cause attended the \n\fNo. 17‐2521 23 \n\nfalse statements.’” Id. (quoting Lawson v. Veruchi, 637 F.3d 699, \n705 (7th Cir. 2011)). Our analysis then proceeded as we do \nhere: we constructed a hypothetical affidavit, determined \nwhether it established actual probable cause, and denied \nqualified immunity because “immunity does not extend \n‘[w]here the judicial finding of probable cause is based solely \non information the officer knew to be false or would have \nknown was false had he not recklessly disregarded the \ntruth.’” Id. (alteration in original) (quoting Olson v. Tyler, 771 \nF.2d 277, 282 (7th Cir. 1985)). We never asked, much less ana‐\nlyzed, whether the officer in Betker had made a reasonable \nmistake about the materiality of his lies. \n To summarize: if an officer knowingly or recklessly in‐\ncludes false information in an affidavit and that information \nis not material, he will not be liable in a § 1983 action because \nthe plaintiff will not be able to prove a constitutional viola‐\ntion. But if that information is material, the officer is not enti‐\ntled to qualified immunity. The unlawfulness of using delib‐\nerately falsified allegations to establish probable cause could \nnot be clearer. See, e.g., Lawson, 637 F.3d at 705 (“[I]t [i]s clearly \nestablished ‘that a warrant request violates the Fourth \nAmendment if the requesting officer knowingly, intention‐\nally, or with reckless disregard for the truth, makes false state‐\nments in requesting the warrant and the false statements were \nnecessary to the determination that a warrant should issue.’” \n(citation omitted)); Olson, 771 F.2d at 281 (“If an officer sub‐\nmitted an affidavit that contained statements he knew to be \nfalse or would have known were false had he not recklessly \ndisregarded the truth and no accurate information sufficient \nto constitute probable cause attended the false statements, not \nonly is his conduct the active cause of the illegal arrest, but he \n\f24 No. 17‐2521 \n\ncannot be said to have acted in an objectively reasonable man‐\nner.”). And the plaintiff need not show that the materiality of \nthe lie would have been clear to a competent officer. The qual‐\nified immunity analysis uses the perspective of an officer act‐\ning in good faith, and an officer acting in good faith would \nnot entertain that question. \n An officer sued for failing to include materially \nexculpatory facts in a probable cause affidavit is differently \nsituated. It violates clearly established law to “intentionally or \nrecklessly withhold material information from a warrant \napplication.” Whitlock, 596 F.3d at 408. But while a competent \nofficer would not ask whether the Fourth Amendment \npermits him to tell a particular lie, a competent officer \nwould—indeed, must—consider whether the Fourth \nAmendment obligates him to disclose particular evidence. \nBecause an officer acting in good faith could make a \nreasonable mistake about his disclosure obligation, the \nmateriality of omitted facts, unlike the materiality of false \nstatements, is properly part of the qualified‐immunity \nanalysis. We have repeatedly held, therefore, that an officer \nviolates the Fourth Amendment by omission only if “it would \nhave been clear to a reasonable officer that the omitted fact \nwas material to the probable‐cause determination.” See Leaver \nv. Shortess, 844 F.3d 665, 669 (7th Cir. 2016); see also Olson v. \nTyler, 825 F.2d 1116, 1121 (7th Cir. 1987) (“[O]nly where a \nreasonable officer can conclude that a withheld fact is \nirrelevant to probable cause should such an officer who \nwithholds a known (or recklessly disregarded) fact be \nprotected with qualified immunity.”). \n Whitlock provides an illustration. See 596 F.3d 406. There, \ncampers picked up apparently abandoned bags in an Indiana \n\fNo. 17‐2521 25 \n\nstate park, intending to turn them in to park authorities so \nthat the property could be returned to its rightful owner. Id. \nat 408–09. But they forgot for several hours, the bags were re‐\nported stolen, and the campers were arrested for criminal \nconversion. Id. at 409. They sued the officer who obtained the \nwarrant, alleging that he withheld a material fact by failing to \ninclude the campers’ innocent explanation for taking the bags \nin his probable cause affidavit. Id. at 410. We held that the of‐\nficer was entitled to qualified immunity. Because Indiana law \non criminal conversion was undeveloped, a reasonable officer \nwould not necessarily have known that the campers’ explana‐\ntion for taking the bags was material to the probable cause \ndetermination. Id. at 413. A well‐trained officer could make a \nreasonable mistake about whether a given fact would negate \nprobable cause. \n Here, Benner has not argued that it would have been un‐\nclear to a reasonable oﬃcer that any of the information that \nhe omitted was material to the probable cause determination. \nThus, we need not address whether he made any reasonable \nmistakes in that regard. \n * * * \n The district court correctly held that Benner is not entitled \nto qualified immunity, and its judgment is AFFIRMED.\n[END_CASE]", "role": "user" } ]
4,581,701		Mark Mittelstadt v. Sonny Perdue	2019-01-15	17-2447	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before RIPPLE, SYKES, and SCUDDER, Circuit Judges.", "parties": "", "opinions": [{"author": "Kenneth Francis Ripple", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-2447\nMARK MITTELSTADT,\n Plaintiff-Appellant,\n v.\n\nSONNY PERDUE, Secretary of Agriculture,\n Defendant-Appellee.\n ____________________\n\n Appeal from the United States District Court for the\n Western District of Wisconsin.\n No. 3:15-cv-00725-wmc — William M. Conley, Judge.\n ____________________\n\n ARGUED SEPTEMBER 28, 2018 — DECIDED JANUARY 15, 2019\n ____________________\n\n Before RIPPLE, SYKES, and SCUDDER, Circuit Judges.\n RIPPLE, Circuit Judge. Mark Mittelstadt owned a tract of\nland in Richland County, Wisconsin, that was enrolled in the\nConservation Reserve Program (“CRP”), administered by the\nUnited States Department of Agriculture (“USDA”), from\n1987 to 2006. Participants in the CRP agree to remove environ-\nmentally sensitive land from agricultural production in return\nfor annual rental payments from the USDA. In 2006, the\nagency denied Mr. Mittelstadt’s application to reenroll his\n\f2 No. 17-2447\n\nland in the CRP. After exhausting his administrative appeals,\nhe brought this action against the Secretary of the USDA (“the\nSecretary”). He asserted one claim under Section 702 of the\nAdministrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq.,\nchallenging the Secretary’s final decision denying reenroll-\nment, and one common law claim for breach of contract.\nMr. Mittelstadt moved for summary judgment in the district\ncourt, seeking an order directing reenrollment of his land in\nthe CRP and awarding monetary relief for the alleged breach\nof contract. The district court denied his motion for summary\njudgment, aﬃrmed the Secretary’s rulings, and entered judg-\nment in favor of the Secretary on Mr. Mittelstadt’s APA and\nbreach of contract claims. Mr. Mittelstadt now appeals the\ndistrict court’s decision.\n Under the regulations governing the CRP, the USDA has\nbroad discretion to evaluate oﬀers of enrollment in the pro-\ngram on a competitive basis by considering the environmen-\ntal benefits of a producer’s land relative to its costs. Given the\nagency’s wide latitude, we conclude that the Farm Services\nAgency (“FSA”) did not abuse its discretion when it denied\nreenrollment of Mr. Mittelstadt’s land. Moreover, because he\nnever entered a new contract with the agency, there was no\nbreach of contract. We therefore aﬃrm the judgment of the\ndistrict court.\n I\n A.\n In 1988, Mr. Mittelstadt purchased a tract of land in Rich-\nland County, Wisconsin (“Tract 9073”), that was subject to a\nCRP contract for the period 1987 through 1996. To comply\nwith a revised conservation plan, Mr. Mittelstadt planted\n\fNo. 17-2447 3\n\nwhite pine, walnut, and red oak trees on the land in 1989. A\nCRP review later that year determined that Mr. Mittelstadt\nhad completed all items in the conservation plan. Another\nCRP maintenance inspection in 1995 found no problems with\nthe land. In 1996, the Commodity Credit Corporation\n(“CCC”) extended the existing CRP contract for one year, to\nrun from October 1, 1996, through September 30, 1997.\n In 1997, Mr. Mittelstadt applied to reenroll his land in the\nprogram, stating on the application that Tract 9073 had a con-\nservation practice of CP11, or “vegetative cover—trees—al-\nready established.”1 Relying on the information in his appli-\ncation, the FSA assigned his land an environmental benefits\nindex (“EBI”) score of fifty points.2 This EBI score meant that\nthe conservation practices on the land included “[p]ine estab-\nlished with less than 500 trees per acre with strips of native\nherbaceous and shrub plantings best suited for wildlife in the\narea, mixed hardwoods established, or longleaf pine.”3 The\nFSA approved the new contract (“Contract 653”), to be effec-\ntive from 1998 to 2007. A 2002 field status review of the prop-\nerty found no violations, noting, “Trees are growing and look-\ning good.”4\n In 2006, Mr. Mittelstadt began the reenrollment process by\npaying for a spot-check inspection of Tract 9073. The inspec-\ntion found no violations, noting “62.9 CP11 Tre[es] … already\n\n1 R.16-5 at 2.\n2 The FSA relies on a national EBI to rank offers for enrollment in the CRP\n\nbased on their estimated environmental benefits and costs. See R.16-1 at\n679.\n3 R.16-5 at 3.\n4 Id.\n\f4 No. 17-2447\n\nest” and “good.”5 The Natural Resources Conservation Ser-\nvice (“NRCS”) sent Mr. Mittelstadt Contract 1710, a form CRP\ncontract for the term October 1, 2007, to September 30, 2017,\nwhich Mr. Mittelstadt signed on July 26, 2006.6 On August 19,\n2006, Mr. Mittelstadt signed a revised version of the contract,\namended to reflect the correct acreage of Tract 9073.\n In August 2006, the NRCS sent Mr. Mittelstadt a conserva-\ntion plan for Tract 9073. The plan “identified the conservation\npractice as CP11, a ‘mixed stand (2 species) of hardwoods best\nsuited for wildlife in the area.’”7 Mr. Mittelstadt signed the\nplan on August 24, 2006, and, on September 1, 2006, the Rich-\nland County Conservation Department approved it. The\nNRCS signed off on the plan on September 5, 2006, as did the\nFSA on September 13, 2006.\n B.\n On or around September 13, 2006, Jared Reuter, the\nCounty Executive Director of the Richland County FSA,\nsigned the amended version of Contract 1710 on behalf of the\nCCC. Reuter’s signature was later whited out,8 however, and\nMr. Mittelstadt never received a countersigned copy of Con-\ntract 1710. On September 14 and 16, 2006, Reuter conducted\ntwo maintenance inspections of Mr. Mittelstadt’s land. By let-\nter dated September 21, 2006, the FSA County Committee\n\n\n5 Id.\n6 The CCC never countersigned the original version of Contract 1710.\n7 R.16-5 at 3.\n8 The Secretary contends that Reuter likely whited out his signature after\ninspecting Mr. Mittelstadt’s property and discovering CRP violations on\nTract 9073. Appellee’s Br. 8 n.2.\n\fNo. 17-2447 5\n\nnotified Mr. Mittelstadt that the inspections revealed CRP vi-\nolations on Tract 9073. Aerial photos taken in 2005 showed\nthat three areas of the acreage had “suffered tree loss that the\nfield reporter did not originally report during the re-enroll-\nment compliance check.”9 Reuter also found that very few red\noak trees “were present from the original planting,” and\n“[o]ne area with the most red oak present had less than 100\nplanted red oak trees present.”10 The letter warned that “[v]io-\nlations of this type can result in termination of the acreage in-\nvolved” and that Mr. Mittelstadt’s “re-enrollment/extension\noffer cannot be approved until this issue is settled.”11\n At a hearing on October 25, 2006, the FSA County Com-\nmittee discussed the issues raised by the inspections, and the\nnext day, the committee sent Mr. Mittelstadt a letter terminat-\ning Contract 653. The committee explained that, in 1997,\nMr. Mittelstadt’s acreage did not have “a ‘mixed hardwood\nstand of trees (more than one species of hardwood trees)’ be-\ncause of the ‘failed population of red oak.’”12 As a result, the\nFSA had assigned incorrectly an EBI score of fifty points upon\nreenrollment of the land in the CRP. Further, to “be eligible to\nbe placed in the CRP,” land must qualify under a covered cat-\negory, such as “[a]creage enrolled in CRP during the final\nyear of the CRP contract.” 7 C.F.R. § 1410.6(a). Because\nMr. Mittelstadt’s land was enrolled improperly under\n\n\n\n\n9 R.16-5 at 3.\n10 R.19 at 103 (Letter from Reuter to Mr. Mittelstadt (Sept. 21, 2006)).\n11 Id. at 103–04.\n12 R.16-5 at 4.\n\f6 No. 17-2447\n\nContract 653 in 1997, the committee also found it was not eli-\ngible for reenrollment under Contract 1710 in 2006.\n Mr. Mittelstadt appealed the County Committee’s deci-\nsion to the Wisconsin State FSA Committee. By letter dated\nAugust 13, 2007, the State FSA Committee upheld the County\nCommittee’s decision, finding that “[t]here are no areas of the\ncontract that qualify as ‘mixed hardwoods.’”13 The State Com-\nmittee concluded that “the scoring of the contract offer in 1997\nwas incorrect,” and that the land was “also ineligible for\nre-enrollment through the re-enrollment and extension pro-\ncess that was conducted in 2006 because the current contract\nwas not in compliance.”14\n C.\n Mr. Mittelstadt sought review from the USDA’s National\nAppeals Division, where the parties stipulated that the sole\nissue on appeal was the propriety of the eligibility determina-\ntion with respect to Contract 653 that had been made in 1997.\nThe Hearing Officer upheld the State Committee’s decision,\nbut, on further review, the Deputy Director reversed the de-\ncision. Because “the preponderance of the evidence show[ed]\nthat the placement of trees on Appellant’s land satisfied the\n‘mixed hardwoods established’ requirement for a CP11 prac-\ntice and warranted the assigned EBI score of fifty points,” the\nDeputy Director ordered the FSA to reinstate Contract 653.15\nHowever, the Deputy Director found no error with respect to\nthe FSA’s denial of reenrollment under Contract 1710. Given\n\n\n13 R.19 at 38.\n14 Id.\n15 R.16-5 at 7.\n\fNo. 17-2447 7\n\nthat Mr. Mittelstadt’s land “may not meet new standards such\nas a new definition of mixed hardwood stand or FSA other-\nwise may have a legitimate reason for not extending re-enroll-\nment,” the decision “was supported by applicable regulations\nand substantial evidence in the record.”16\n Mr. Mittelstadt sought reconsideration of the Deputy Di-\nrector’s decision, which the FSA Director denied. The Director\nexplained that “agency regulations at 7 C.F.R. § 1410.31(a)\nprovide that acceptance or rejection of any offer of land by an\nowner for CRP participation shall be in the sole discretion of\nthe CCC and offers may be rejected for any reason as deter-\nmined to accomplish the goals of the program.”17 According\nto the Director, “[w]hile not cited in the determination, this\nregulation was the basis” for the Deputy Director’s decision.18\nThus, “[o]nce FSA concluded that the property no longer had\nas high an EBI score as it once did, FSA could use that score\nto decide that funding a continuation of enrollment of the\nproperty was not as high a priority as funding other CRP con-\ntracts.”19\n\n\n D.\n Having exhausted his administrative appeals, Mr. Mittel-\nstadt filed a complaint in the district court. He asserted a\nclaim under the APA, contending that the decision denying\n\n\n16 Id.\n17 R.16-6 at 1.\n18 Id.\n19 Id.\n\f8 No. 17-2447\n\nhis application for reenrollment under Contract 1710 was ar-\nbitrary, capricious, and unlawful. In the alternative, he set out\na common law claim, asserting that the agency breached its\nobligations under Contract 1710. He later moved for sum-\nmary judgment on both counts of the complaint.\n The district court denied Mr. Mittelstadt’s motion for\nsummary judgment and affirmed the agency’s final decision.\nFirst, the district court rejected Mr. Mittelstadt’s contention\nthat the Deputy Director of the National Appeals Division\nhad abused his discretion by upholding the denial of reenroll-\nment under Contract 1710 despite the parties’ stipulation that\nthe sole issue on appeal was the propriety of the 1997 eligibil-\nity determination. Second, the district court rejected Mr. Mit-\ntelstadt’s assertion that the USDA had abused its discretion\nby denying reenrollment of his land in 2007 based on a con-\nservation standard adopted in 2006. Third, the district court\ndismissed Mr. Mittelstadt’s common law claim for breach of\ncontract, determining that no contract existed to support that\nclaim. The district court then entered judgment in favor of the\nSecretary on Mr. Mittelstadt’s APA and breach of contract\nclaims. Mr. Mittelstadt timely sought review of the district\ncourt’s decision.20\n\n\n20 The district court had jurisdiction over this case under the judicial re-\nview provision of the APA, which waives sovereign immunity for actions\n“seeking relief other than money damages and stating a claim that an\nagency or an officer or employee thereof acted or failed to act in an official\ncapacity or under color of legal authority.” 5 U.S.C. § 702. For purposes of\n§ 702, the Supreme Court has held that the mere “fact that a judicial rem-\nedy may require one party to pay money to another is not a sufficient rea-\nson to characterize the relief as ‘money damages.’” Bowen v. Massachusetts,\n487 U.S. 879, 893 (1988). Instead, the critical question is whether the plain-\ntiff seeks substitute or specific relief. Whereas “[d]amages are given to the\n\fNo. 17-2447 9\n\n II\n DISCUSSION\n We review the district court’s decision on summary judg-\nment de novo. Stable Invs. P’ship v. Vilsack, 775 F.3d 910, 915\n(7th Cir. 2015). In “an action for review of final action taken\nby a federal administrative agency, the ultimate question is\nwhether that action is ‘arbitrary, capricious, an abuse of dis-\ncretion, or otherwise not in accordance with the law.’” Id. (ci-\ntation omitted) (quoting 5 U.S.C. § 706(2)). To “answer[] that\nquestion, we rely on the same administrative record that was\n\nplaintiff to substitute for a suffered loss,” specific remedies “attempt to\ngive the plaintiff the very thing to which he was entitled.” Id. at 895 (quot-\ning Maryland Dep’t of Human Res. v. Dep’t of Health & Human Servs., 763\nF.2d 1441, 1446 (D.C. Cir. 1985)) (emphasis in original). Here, Mr. Mittel-\nstadt’s request for an order directing the Secretary “to pay all amounts due\nand owing under Contract 1710,” R.3 ¶ 152, was not a request for “money\ndamages” because Mr. Mittelstadt sought payments “not as compensation\nfor [the Secretary’s] failure to perform some other obligation,” but as “the\nvery thing to which he was entitled” under the CRP. Columbus Reg’l Hosp.\nv. FEMA, 708 F.3d 893, 896 (7th Cir. 2013) (quoting Bowen, 487 U.S. at 895).\nMr. Mittelstadt’s APA claim challenging the Secretary’s decision denying\nreenrollment seeks “relief other than money damages,” and is “therefore\nwithin the waiver of sovereign immunity in section 702.” Maryland Dep’t\nof Human Res. v. Dep’t of Health & Human Servs., 763 F.2d 1441, 1448 (D.C.\nCir. 1985) (quoting 5 U.S.C. § 702). Additionally, because his breach of con-\ntract claim is, at base, an alternative request for administrative relief di-\nrecting the Secretary to make the payments to which Mr. Mittelstadt\nwould have been entitled under Contract 1710, this claim is simply a dif-\nferent way of characterizing his request for “the very thing to which he\nwas entitled” under the CRP. Columbus Reg’l Hosp., 708 F.3d at 896 (quot-\ning Bowen, 487 U.S. at 895). Jurisdiction over Mr. Mittelstadt’s breach of\ncontract claim was therefore proper under § 702. We have jurisdiction over\nthis appeal from the district court’s entry of summary judgment under 28\nU.S.C. § 1291.\n\f10 No. 17-2447\n\nbefore the district court and render an independent judgment\nas to whether the agency acted unreasonably.” Id. Under this\n“deferential standard,” we “will uphold a decision of less\nthan ideal clarity if the agency’s path may reasonably be dis-\ncerned.” St. Clair v. Sec’y of Navy, 155 F.3d 848, 851 (7th Cir.\n1998) (internal quotation marks omitted).\n A.\n We begin with an examination of the governing statutory\nscheme. As part of the Food Security Act of 1985,21 Congress\nestablished the CRP. This program incentivizes landowners\nto remove environmentally sensitive land from agricultural\nproduction in return for annual rental payments from the\nUSDA. S. Rep. 99-145, at 1971 (1985). The impetus for the de-\nvelopment of the CRP was an increased concern about soil\nerosion. Id. In 1982, the National Resources Inventory22 had\ndetermined that almost fifty percent of erosion occurred on\nonly ten percent of cropland in the United States. Id. The Soil\nConservation Service projected that the CRP would “reduce\nwind and water erosion on these acres by an average of nearly\n20 tons per acre per year.” Id. (capitalization omitted). Ac-\ncordingly, Congress directed the Secretary to “formulate and\ncarry out” the CRP by awarding contracts to encourage land-\nowners “to conserve and improve the soil, water, and wildlife\nresources of such land and to address issues raised by State,\n\n\n21 Pub. L. No. 99-198, §§ 1201, 1231–1236, 99 Stat. 1354, 1504–05, 1509–14\n(codified as amended at 16 U.S.C. §§ 3801, 3831–3836).\n22 Administered by the NRCS, the National Resources Inventory is a “sta-\ntistically-based survey” designed to “assess conditions and trends of soil,\nwater, and related resources on nonfederal lands in the United States.” 7\nC.F.R. § 601.1(f)(1)(v).\n\fNo. 17-2447 11\n\nregional, and national conservation initiatives.” 16 U.S.C.\n§ 3831(a).\n The USDA oversees the CRP, with funding provided by\nthe CCC, an entity owned and operated by the government.\n16 U.S.C. § 3841(a). Together with the FSA, the CCC is respon-\nsible for implementing the regulations governing the CRP. 7\nC.F.R. § 1410.1(a). The Agricultural Stabilization and Conser-\nvation Service, which operates through state and county com-\nmittees, administers the CRP on behalf of the CCC.\n The FSA and the Agricultural Stabilization and Conserva-\ntion Service also have issued, for use by the state and county\ncommittees, handbooks detailing the procedures and require-\nments for implementing and participating in the CRP. These\nhandbooks, which were not published in the Federal Register\nand therefore were not promulgated according to the require-\nments of the APA, are interpretive only and do not have the\nforce or effect of official regulations.23\n The statute limits the type and total acreage of land that\ncan be enrolled in the CRP. Land eligible for enrollment in-\ncludes certain highly erodible cropland, marginal pasture\nland, grasslands, and, at the Secretary’s determination, other-\nwise ineligible cropland that poses an environmental threat.\n16 U.S.C. § 3831(b). During fiscal year 2018, the Secretary\ncould maintain no more than twenty-four million acres of\nland in the program. Id. § 3831(d)(1)(E). Additionally, the\n\n\n23 See Westcott v. U.S. Dep’t of Agric., 765 F.2d 121, 122 (8th Cir. 1985) (per\ncuriam); see also Thomas v. Cty. Office Comm. of Cameron Cty., 327 F. Supp.\n1244, 1253 (S.D. Tex. 1971); Graham v. Lawrimore, 185 F. Supp. 761, 764\n(E.D.S.C. 1960); Hawkins v. State Agric. Stabilization & Conservation Comm.,\n149 F. Supp. 681, 686 (S.D. Tex. 1957).\n\f12 No. 17-2447\n\nSecretary cannot enroll more than twenty-five percent of the\ncropland in any county unless he determines that enrolling a\nlarger percentage “would not adversely affect the local econ-\nomy.” 16 U.S.C. § 3844(f).\n Landowners who wish to participate in the CRP must en-\ngage in a bid system. According to the legislative history, the\nstatute utilizes this system because “the competitive bid sys-\ntem is the most cost-effective means of identifying our least\nproductive and most erosion prone acreage, while at the same\ntime minimizing cost to the U.S. Treasury.” S. Rep. 99-145, at\n1971 (capitalization omitted). Congress determines, for a\ngiven year, the maximum acreage permitted to be enrolled in\nthe CRP each time it amends the authorizing statute.24 Indi-\nvidual rental payments are capped at $50,000 per year. 16\nU.S.C. § 3834(g)(1).\n To participate in the bidding process, landowners submit\noffers to the CCC indicating “the amounts they are willing to\naccept as rental payments to enroll their acreage in the CRP.”\n7 C.F.R. § 1410.31(a). The CCC may evaluate offers “on a com-\npetitive basis in which the offers selected will be those where\nthe greatest environmental benefits relative to cost are gener-\nated.” Id. In evaluating offers, the agency employs a national\nEBI, which “provides a relative ranking of estimated environ-\nmental benefits and cost for land offered for CRP.”25 “Ac-\nceptance or rejection of any offer” is “in the sole discretion of\nthe CCC[,] and offers may be rejected for any reason as\n\n\n24 See Agriculture Improvement Act of 2018, Pub. L. No. 115-334, §\n 2201(c)\n(amending 16 U.S.C. § 3831(d)); Agricultural Act of 2014, Pub. L. No.\n113-79, § 2001(d) (same).\n25 R.16-1 at 679.\n\fNo. 17-2447 13\n\ndetermined needed to accomplish the goals of CRP.” 7 C.F.R.\n§ 1410.31(a). When evaluating contract offers, the CCC may\nconsider such factors as soil erosion, water quality, wildlife\nbenefits, soil productivity, the “[l]ikelihood that enrolled land\nwill remain in non-agriculture use beyond the contract pe-\nriod,” air quality, and the cost of enrolling the land in the CRP.\nId. § 1410.31(b). Offers to enroll in the CRP are “irrevocable\nfor such period as is determined and announced by the Dep-\nuty Administrator” of the FSA. 7 C.F.R. § 1410.32(c)(2). If an\napplicant revokes his offer during the irrevocable period, he\nmay be liable to the CCC for liquidated damages. Id.\n Following CCC approval, the USDA awards CRP con-\ntracts for terms between ten and fifteen years, depending on\nthe type of land involved. 16 U.S.C. § 3831(e)(1).26 In return\nfor converting their land to less intensive uses, landowners\nreceive annual rental payments. 16 U.S.C. § 3833(a)(2). The\namounts of these payments are determined when the land-\nowners submit bids for CRP contracts. 16 U.S.C.\n§ 3834(d)(2)(A)(i).\n Participants in the CRP must obtain and implement a con-\nservation plan outlining required conservation practices for\nthe enrolled land. The conservation plan is considered part of\nthe CRP contract, 7 C.F.R. § 1410.20(a)(2), and must be ap-\nproved by the conservation district in which the land is\n\n26 Specifically, “[c]ontracts with land devoted to hardwood trees, shelter-\nbelts, windbreaks, or wildlife corridors will be for a term of 10 years to 15\nyears, as requested by the applicant.” 7 C.F.R. § 1410.7(a). By contrast,\n“[o]ther general and continuous signup contracts … will be for a term of\n10 to 15 years, as determined by the Deputy Administrator.” Id.\n§ 1410.7(b). “Grassland signup contracts will be for a term of 15 years.” Id.\n§ 1410.7(c).\n\f14 No. 17-2447\n\nlocated, 7 C.F.R. §§ 1410.3(b), 1410.22(a). Landowners must\n“[e]stablish and maintain” the required vegetative cover and\nthe required practices on the enrolled land, and must “take\nother actions that may be required by CCC to achieve the de-\nsired environmental benefits and to maintain the productive\ncapability of the soil throughout the contract period.” 7 C.F.R.\n§ 1410.20(a)(6). All conservation plans and revisions to such\nplans are subject to the approval of the Deputy Administrator\nof the FSA. 7 C.F.R. § 1410.22(e). Subject to fund availability,\nthe CCC must “[s]hare up to 50 percent of the cost” of estab-\nlishing conservation practices with CRP participants. 7 C.F.R.\n§ 1410.21(a). Rental payments combined with cost-sharing are\ndesigned to assure landowners of a return on the land with-\nout having to risk large sums of money to adopt conservation\npractices.27\n The CCC retains the authority to modify or terminate an\nexisting CRP contract. Specifically, the CCC can modify a CRP\ncontract if the Deputy Administrator determines that,\nthrough no fault of the participant, the “installed practice\nfailed to adequately provide for the desired environmental\nbenefit” or “deteriorated,” and that “[a]nother practice will\nachieve at least the same level of environmental benefit.” 7\nC.F.R. § 1410.33(b). Additionally, the CCC can terminate a\nCRP contract before expiration of the term if, among other\ngrounds, “[t]he participant is not in compliance with the\nterms and conditions of the contract,” “[t]he CRP practice fails\nor is not established after a certain time period,” the “contract\nwas approved based on erroneous eligibility determina-\ntions,” or “[t]he Deputy Administrator determines that such\n\n27See Michael W. Strain, Student Survey, The Conservation Reserve: A Bold\nStep Towards the Future, 31 S.D. L. Rev. 523, 529 (1986).\n\fNo. 17-2447 15\n\na termination is needed in the public interest, or is otherwise\nnecessary and appropriate to further the goals of CRP.” 7\nC.F.R. § 1410.32(f).\n This statutory and regulatory scheme places considerable\ndiscretion over CRP participation in the hands of the FSA. The\nimplementing regulations afford the agency broad discretion\nto evaluate offers for enrollment and reenrollment in the pro-\ngram:\n [O]ffers may, to the extent practicable, be evalu-\n ated on a competitive basis in which the offers\n selected will be those where the greatest envi-\n ronmental benefits relative to cost are gener-\n ated … . Acceptance or rejection of any offer,\n however, shall be in the sole discretion of the\n CCC and offers may be rejected for any reason\n as determined needed to accomplish the goals\n of CRP.\n7 C.F.R. § 1410.31(a). Although we have had no occasion to\ndescribe the scope of discretion under this particular regula-\ntion, our cases involving other statutory and regulatory\ngrants of “sole discretion” confirm that this language confers\nwide latitude upon the relevant actor.28\n\n\n\n28 See, e.g., Mahler v. U.S. Forest Serv., 128 F.3d 573, 577–78 (7th Cir. 1997)\n(concluding, where the Rescissions Act of 1995 required the Secretary of\nAgriculture to prepare an environmental assessment and a biological eval-\nuation “at the sole discretion of the Secretary concerned and to the extent\nthat the Secretary concerned considers appropriate and feasible,” that\n“this language clearly authorize[d] the Secretary to permit a shorter pe-\nriod for public comment than that usually required under the Public Par-\nticipation Law” (emphasis added)).\n\f16 No. 17-2447\n\n B.\n With this statutory and regulatory background in mind,\nwe turn first to Mr. Mittelstadt’s contention that the agency\nabused its discretion because it had not defined “mixed hard-\nwoods” when it considered his application for reenrollment\nunder Contract 653 in 1997 or under Contract 1710 in 2006.\nWe also consider his related argument that the agency’s ap-\nplication of a new interpretation of “mixed hardwoods,”\nadopted in 2006, when it denied his request for reenrollment\nunder Contract 1710 was an abuse of discretion.\n Here, the Secretary “readily acknowledge[d] that,\nthroughout the entire relevant time period, there was never a\npublished definition of ‘mixed hardwoods’ in FSA’s Hand-\nbook, in the regulations, or elsewhere.”29 Nevertheless, to\nevaluate Mr. Mittelstadt’s 2006 application for reenrollment,\nthe agency interpreted “mixed hardwoods” to mean “two\nspecies of hardwoods planted together in the same rows.”30\nGiven the great discretion vested in the Secretary to obtain\noptimal environmental return for every dollar appropriated\nfor the CRP, the FSA clearly had the capability to tighten the\ndefinition of “mixed hardwoods” for new contract periods.31\nThe very nature of the program affords the Secretary the au-\nthority to change the terms and conditions of participation in\n\n\n29 Appellee’s Br. 35.\n30 R.9 ¶ 70.\n31 Cf. Paragon Health Network, Inc. v. Thompson, 251 F.3d 1141, 1147 (7th Cir.\n\n2001) (noting that “Congress is presumed to have delegated the primary\npower to fill regulatory ambiguities to the agency, and courts owe defer-\nence to agency decisions that clarify a regulation regardless of the fact that\nthe agency waited to exercise this power”).\n\fNo. 17-2447 17\n\norder to achieve, given the resources available, the most ad-\nvantageous result. The USDA’s policy, therefore, was to\nmaintain a competitive program that allowed the Secretary to\nselect, based on currently available funding, the best land\navailable to attain the goals of the program. The agency did\nnot have to contract for the same conservation measures at the\nsame price upon each reenrollment.\n The Secretary’s decision to limit program participation to\nland with a different pattern of hardwoods, a pattern that he\ndeemed more favorable to the conservation ends of the pro-\ngram, cannot be characterized fairly as the reversal of an\nagency policy. Because there was no previous specific defini-\ntion applicable to all future contracts set forth in the regula-\ntions or even in the FSA Handbook, the Secretary did not re-\nverse a governing policy.32 For the same reason, the 2006 re-\nquirement cannot be characterized as such “a sudden and un-\nexpected change in agency policy” as to be arbitrary, capri-\ncious, or an abuse of discretion.33 The new requirement is\ngrounded firmly in the governing statutes and regulations\nand implements the Secretary’s decision that such a criterion\n\n\n32 Cf. Friends of the Boundary Waters Wilderness v. Dombeck, 164 F.3d 1115,\n1123 (8th Cir. 1999) (holding that, since no prior Forest Service or USDA\nplans provided a definition of the term “guest” for purposes of motorboat\nuse restrictions, the definition newly provided by the Forest Service to\navoid abuses of the motorboat use quota system could not “be considered\nas reversing a prior agency policy” and was entitled to deference).\n33 See id. (observing that “‘the mere fact that an agency interpretation con-\n\ntradicts a prior agency position is not fatal,’ unless the new position is a\nsudden and unexpected change in agency policy that can be characterized\nas arbitrary, capricious, or an abuse of discretion” (quoting Smiley v. Citi-\nbank (S.D.), N.A., 517 U.S. 735, 742 (1996)).\n\f18 No. 17-2447\n\nwill ensure that the available government funds are imple-\nmented in the most effective manner.34\n Mr. Mittelstadt conceded that “there were never areas of\n[his] acreage planted to more than one species of hard-\nwood.”35 He had understood that “the terminology ‘mixed\nhardwoods’ mean[t] only 1 hardwood species ‘mixed’ with\npine.”36 Accordingly, in 1989, he planted three sections of\ntrees on his land: (1) walnut and white pine trees, (2) red oak\nand white pine trees, and (3) solely white pine trees.37 Pine\ntrees are softwoods, whereas walnut and red oak trees are\nhardwoods, so that no section he planted had more than one\nspecies of hardwood tree mixed with pine. It follows that, by\n2006, his acreage did not meet the FSA’s new requirement,\nwhich required that “there be at least 2 species of hardwoods\n\n34 Mr. Mittelstadt asserts that the FSA was “affirmatively required” to in-\nform him of the new interpretation of “mixed hardwoods” and to “help[]\nhim craft a new plan that would elevate [Tract 9073’s] EBI score by chang-\ning the arrangement of hardwood species.” Appellant’s Br. 32. He relies\non the FSA Handbook, which states that the “FSA will review EBI scoring\nparameters with the producers and encourage the planting of cover types\nand conservation measures, if appropriate, that will provide higher envi-\nronmental benefits.” R.16-1 at 679. However, the agency did not discover\nthat Mr. Mittelstadt’s land did not meet the new requirement for “mixed\nhardwoods” until he began the reenrollment process, at which point the\nmaintenance inspections revealed CRP violations. The agency informed\nhim that, to reenroll his land, he could cure the violations by planting two\nor more species of hardwood trees mixed with a softwood tree. The FSA\nHandbook, which does not confer a legal right on Mr. Mittelstadt to par-\nticipate in the program, did not require more.\n35 R.19 at 36–37.\n36 Id. at 37.\n37 Id. at 28.\n\fNo. 17-2447 19\n\nmixed into the rows of hardwoods.”38 The FSA therefore did\nnot abuse its discretion when it determined that Mr. Mittel-\nstadt’s land did not satisfy the 2006 requirement of “mixed\nhardwoods.”39\n C.\n\n38 Id. at 37. Relatedly, Mr. Mittelstadt submits that it was error for the FSA\n\nnot to recalculate the EBI score for Tract 9073 using its new interpretation\nof “mixed hardwoods.” At multiple stages of the review process, how-\never, the agency concluded that there were “no areas of the contract that\nqualify as ‘mixed hardwoods’” under the 2006 requirement. R.19 at 38; see\nalso R.16-4 at 5. Nor does Mr. Mittelstadt contend that he engaged in other\nconservation practices that would contribute to Tract 9073’s EBI score. Ac-\ncordingly, no formal recalculation was needed to conclude that, under the\nnew interpretation, Tract 9073 “no longer had as high an EBI score as it\nonce did.” R.16-6 at 1. The FSA’s failure to formally recalculate the EBI\nscore for Tract 9073 was not an abuse of discretion.\n39 Mr. Mittelstadt’s claim that complying with the FSA’s new interpreta-\ntion of “mixed hardwoods” would have brought him in violation of the\nexisting conservation plan under either Contract 653 or Contract 1710 is\nunsubstantiated. The 1997 conservation plan for Contract 653 instructed:\n CRP-CP11. The existing tree planting will not be man-\n aged for Christmas trees and will be protected from fire\n and from grazing by domestic livestock for the duration\n of the CRP contract.\nR.19-2 at 13. Similarly, the 2006 conservation plan for Contract 1710 stated:\n CRP-CP11. Vegetative Cover, Trees Already Estab-\n lished. … The existing tree planting will not be managed\n for Christmas trees and will be protected from fire and\n from grazing by livestock for the duration of the CRP con-\n tract. Spot treat for weed and brush control … .\nR.19-1 at 39. Nothing in either conservation plan suggests that Mr. Mittel-\nstadt would have violated those terms by planting “two species of hard-\nwoods … together in the same rows.” R.9 ¶ 70.\n\f20 No. 17-2447\n\n We turn next to Mr. Mittelstadt’s contention that the FSA\nerroneously relied on 7 C.F.R. § 1410.31(a) to uphold the\nCCC’s denial of reenrollment under Contract 1710. According\nto Mr. Mittelstadt, this provision “has nothing to do with the\npost-award process through which Tract 9073 was disquali-\nfied from Contract 1710,” and “instead describes the\npre-award process” through which Contract 1710 was\nawarded.40 We cannot accept this argument because it is\npremised on a nonexistent temporal distinction.\n The FSA Handbook instructs that, “[w]hen the producer\nis ready to submit an offer, County Offices shall provide … to\nthe producer” Form CRP-1.41 Once a producer submits an\n\n\n\n40 Appellant’s Br. 35–36.\n41 R.16-1 at 179. As an alternative theory of recovery, Mr. Mittelstadt as-\nserts that, when the agency sent him Form CRP-1 for Contract 1710, it had\naccepted his offer of reenrollment, and there was a binding contract. But\nthat argument ignores the FSA’s express description of Form CRP-1 as a\nform document that constitutes the producer’s “offer” of enrollment in the\nCRP, not the agency’s acceptance of that offer. Further, the FSA Handbook\nstates that “[p]roducers withdrawing CRP-1 during the irrevocable period\nshall be subject to liquidated damages,” id., and Form CRP-1 reiterates\nthat, by signing the form, the participant “agrees to pay such liquidated\ndamages … if the Participant withdraws prior to CCC acceptance or rejec-\ntion.” R.19-1 at 45. These provisions confirm that Form CRP-1 constitutes\nan offer to be considered by the CCC, not a binding contract. Given that\nthe regulations similarly require that a producer pay liquidated damages\nto the CCC if he “revokes an offer during the period in which the offer is\nirrevocable,” 7 C.F.R. § 1410.32(c)(2) (emphases added), the prospect of\nhaving to pay liquidated damages provides no support to Mr. Mittel-\nstadt’s position that a binding contract existed. Finally, the FSA Handbook\nrequires that Form CRP-1 “be signed and dated by all required signato-\nries,” R.16-2 at 183, but Mr. Mittelstadt never received a countersigned\n\fNo. 17-2447 21\n\noffer on Form CRP-1, the FSA County Committee “shall sub-\nmit all offers … to the national level for review and evalua-\ntion.”42 The regulation at issue, 7 C.F.R. § 1410.31(a), confers\n“sole discretion” upon the CCC to evaluate offers of enroll-\nment in the CRP “on a competitive basis in which the offers\nselected will be those where the greatest environmental ben-\nefits relative to cost are generated.” The regulations further\nprovide that, “[i]n order to be eligible to be placed in the CRP,\nland must” qualify under an enumerated eligibility category,\nsuch as “[a]creage enrolled in CRP during the final year of the\nCRP contract.” 7 C.F.R. § 1410.6(a).\n In 2006, when the FSA County Committee concluded that\nthe 1997 eligibility determination had been incorrect and ter-\nminated Contract 653, Tract 9073 no longer qualified as eligi-\nble “[a]creage enrolled in CRP.” Id. However, when the Dep-\nuty Director of the National Appeals Division reversed that\ndetermination and reinstated Contract 653, the effect of his or-\nder was only to reinstate Tract 9073’s ground for eligibility\nunder 7 C.F.R. § 1410.6(a)(3).43 Mr. Mittelstadt’s bid to\n\n\ncopy of Contract 1710. Because there was no binding contract, Mr. Mittel-\nstadt cannot state a claim for breach.\n42 R.16-1 at 185 (emphasis omitted).\n43 Mr. Mittelstadt further contends that the Deputy Director’s ruling on\nthe reenrollment of Contract 1710 was improper because, at the pre-hear-\ning before the Hearing Officer, “the parties stipulated that the sole issue\non appeal was the erroneous eligibility determination that was made in\n1997.” R.16-5 at 4. The Hearing Officer found that the “FSA correctly de-\ntermined that Appellant did not establish a mixed stand of hardwood\ntrees on the contract acreage” and that “Appellant based his request for\nCRP reenrollment under contract 1710 on the same inaccurate EBI scoring\nused in CRP contract 653.” R.16-4 at 5–6. Accordingly, the Hearing Officer\ndetermined both that “FSA correctly terminated contract 653 because of\n\f22 No. 17-2447\n\nreenroll was still subject to the CCC’s discretion to evaluate\nhis offer based on its relative competitiveness, see 7 C.F.R.\n§ 1410.31(a), and actual reenrollment required CCC approval.\nThe FSA Director recognized precisely this degree of discre-\ntion when he denied Mr. Mittelstadt’s request for reconsider-\nation, explaining that “agency regulations at 7 C.F.R.\n§ 1410.31(a) provide that acceptance or rejection of any offer\nof land by an owner for CRP participation shall be in the sole\ndiscretion of the CCC and offers may be rejected for any rea-\nson as determined to accomplish the goals of the program.”44\nAccording to the Director, “[w]hile not cited in the determi-\nnation, this regulation was the basis” for the Deputy Direc-\ntor’s decision.45 It was no abuse of discretion for the FSA to\nrely on 7 C.F.R. § 1410.31(a) to uphold the CCC’s decision.\n Relatedly, Mr. Mittelstadt claims that the agency was first\nrequired to change his conservation plan to comply with its\nnew interpretation of “mixed hardwoods” and that, if he “re-\nfused to conform Tract 9073 to the corrected Conservation\n\n\n\n\nan inaccurate EBI score” and that FSA “correctly denied Appellant’s reen-\nrollment request under CRP contract 1710.” Id. at 6. Thus, the Deputy Di-\nrector’s review of the Hearing Officer’s decision necessarily encompassed\nboth the Hearing Officer’s findings with regard to the termination of Con-\ntract 653 and the reenrollment under Contract 1710, which were “based”\non “the same inaccurate EBI scor[e].” Id. The district court correctly con-\ncluded that “the parties’ stipulation … ma[de] little practical sense on its\nface,” R.25 at 18, given that the Deputy Director could not properly review\nthe Hearing Officer’s decision without considering the grounds for that\ndecision in full.\n44 R.16-6 at 1.\n45 Id.\n\fNo. 17-2447 23\n\nPlan, the Tract would then be in violation.”46 But Mr. Mittel-\nstadt confuses the order of procedure required. The FSA\nHandbook instructs that, “[i]f [an] offer is determined ac-\nceptable,” then “a conservation plan must be developed by\nNRCS … and approved by the Conservation District before\nCRP-1 can be approved” by the FSA County Committee.47 Be-\ncause the FSA never accepted Mr. Mittelstadt’s offer to reen-\nroll his land, the agency was under no obligation to develop\na new conservation plan for Tract 9073 before denying reen-\nrollment. The FSA’s course of proceeding simply was not an\nabuse of discretion.\n Conclusion\n For the foregoing reasons, we affirm the judgment of the\ndistrict court.\n AFFIRMED\n\n\n\n\n46 Appellant’s Br. 49 (emphasis in original).\n47 R.16-1 at 186.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4358954/", "author_raw": "Kenneth Francis Ripple"}]}	RIPPLE	SYKES	SCUDDER	1		{"RIPPLE": ", Circuit", "SYKES": ", Circuit", "SCUDDER": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4581701/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Mark Mittelstadt v. Sonny Perdue\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-15\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-2447\nMARK MITTELSTADT,\n Plaintiff-Appellant,\n v.\n\nSONNY PERDUE, Secretary of Agriculture,\n Defendant-Appellee.\n ____________________\n\n Appeal from the United States District Court for the\n Western District of Wisconsin.\n No. 3:15-cv-00725-wmc — William M. Conley, Judge.\n ____________________\n\n ARGUED SEPTEMBER 28, 2018 — DECIDED JANUARY 15, 2019\n ____________________\n\n Before RIPPLE, SYKES, and SCUDDER, Circuit Judges.\n RIPPLE, Circuit Judge. Mark Mittelstadt owned a tract of\nland in Richland County, Wisconsin, that was enrolled in the\nConservation Reserve Program (“CRP”), administered by the\nUnited States Department of Agriculture (“USDA”), from\n1987 to 2006. Participants in the CRP agree to remove environ-\nmentally sensitive land from agricultural production in return\nfor annual rental payments from the USDA. In 2006, the\nagency denied Mr. Mittelstadt’s application to reenroll his\n\f2 No. 17-2447\n\nland in the CRP. After exhausting his administrative appeals,\nhe brought this action against the Secretary of the USDA (“the\nSecretary”). He asserted one claim under Section 702 of the\nAdministrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq.,\nchallenging the Secretary’s final decision denying reenroll-\nment, and one common law claim for breach of contract.\nMr. Mittelstadt moved for summary judgment in the district\ncourt, seeking an order directing reenrollment of his land in\nthe CRP and awarding monetary relief for the alleged breach\nof contract. The district court denied his motion for summary\njudgment, aﬃrmed the Secretary’s rulings, and entered judg-\nment in favor of the Secretary on Mr. Mittelstadt’s APA and\nbreach of contract claims. Mr. Mittelstadt now appeals the\ndistrict court’s decision.\n Under the regulations governing the CRP, the USDA has\nbroad discretion to evaluate oﬀers of enrollment in the pro-\ngram on a competitive basis by considering the environmen-\ntal benefits of a producer’s land relative to its costs. Given the\nagency’s wide latitude, we conclude that the Farm Services\nAgency (“FSA”) did not abuse its discretion when it denied\nreenrollment of Mr. Mittelstadt’s land. Moreover, because he\nnever entered a new contract with the agency, there was no\nbreach of contract. We therefore aﬃrm the judgment of the\ndistrict court.\n I\n A.\n In 1988, Mr. Mittelstadt purchased a tract of land in Rich-\nland County, Wisconsin (“Tract 9073”), that was subject to a\nCRP contract for the period 1987 through 1996. To comply\nwith a revised conservation plan, Mr. Mittelstadt planted\n\fNo. 17-2447 3\n\nwhite pine, walnut, and red oak trees on the land in 1989. A\nCRP review later that year determined that Mr. Mittelstadt\nhad completed all items in the conservation plan. Another\nCRP maintenance inspection in 1995 found no problems with\nthe land. In 1996, the Commodity Credit Corporation\n(“CCC”) extended the existing CRP contract for one year, to\nrun from October 1, 1996, through September 30, 1997.\n In 1997, Mr. Mittelstadt applied to reenroll his land in the\nprogram, stating on the application that Tract 9073 had a con-\nservation practice of CP11, or “vegetative cover—trees—al-\nready established.”1 Relying on the information in his appli-\ncation, the FSA assigned his land an environmental benefits\nindex (“EBI”) score of fifty points.2 This EBI score meant that\nthe conservation practices on the land included “[p]ine estab-\nlished with less than 500 trees per acre with strips of native\nherbaceous and shrub plantings best suited for wildlife in the\narea, mixed hardwoods established, or longleaf pine.”3 The\nFSA approved the new contract (“Contract 653”), to be effec-\ntive from 1998 to 2007. A 2002 field status review of the prop-\nerty found no violations, noting, “Trees are growing and look-\ning good.”4\n In 2006, Mr. Mittelstadt began the reenrollment process by\npaying for a spot-check inspection of Tract 9073. The inspec-\ntion found no violations, noting “62.9 CP11 Tre[es] … already\n\n1 R.16-5 at 2.\n2 The FSA relies on a national EBI to rank offers for enrollment in the CRP\n\nbased on their estimated environmental benefits and costs. See R.16-1 at\n679.\n3 R.16-5 at 3.\n4 Id.\n\f4 No. 17-2447\n\nest” and “good.”5 The Natural Resources Conservation Ser-\nvice (“NRCS”) sent Mr. Mittelstadt Contract 1710, a form CRP\ncontract for the term October 1, 2007, to September 30, 2017,\nwhich Mr. Mittelstadt signed on July 26, 2006.6 On August 19,\n2006, Mr. Mittelstadt signed a revised version of the contract,\namended to reflect the correct acreage of Tract 9073.\n In August 2006, the NRCS sent Mr. Mittelstadt a conserva-\ntion plan for Tract 9073. The plan “identified the conservation\npractice as CP11, a ‘mixed stand (2 species) of hardwoods best\nsuited for wildlife in the area.’”7 Mr. Mittelstadt signed the\nplan on August 24, 2006, and, on September 1, 2006, the Rich-\nland County Conservation Department approved it. The\nNRCS signed off on the plan on September 5, 2006, as did the\nFSA on September 13, 2006.\n B.\n On or around September 13, 2006, Jared Reuter, the\nCounty Executive Director of the Richland County FSA,\nsigned the amended version of Contract 1710 on behalf of the\nCCC. Reuter’s signature was later whited out,8 however, and\nMr. Mittelstadt never received a countersigned copy of Con-\ntract 1710. On September 14 and 16, 2006, Reuter conducted\ntwo maintenance inspections of Mr. Mittelstadt’s land. By let-\nter dated September 21, 2006, the FSA County Committee\n\n\n5 Id.\n6 The CCC never countersigned the original version of Contract 1710.\n7 R.16-5 at 3.\n8 The Secretary contends that Reuter likely whited out his signature after\ninspecting Mr. Mittelstadt’s property and discovering CRP violations on\nTract 9073. Appellee’s Br. 8 n.2.\n\fNo. 17-2447 5\n\nnotified Mr. Mittelstadt that the inspections revealed CRP vi-\nolations on Tract 9073. Aerial photos taken in 2005 showed\nthat three areas of the acreage had “suffered tree loss that the\nfield reporter did not originally report during the re-enroll-\nment compliance check.”9 Reuter also found that very few red\noak trees “were present from the original planting,” and\n“[o]ne area with the most red oak present had less than 100\nplanted red oak trees present.”10 The letter warned that “[v]io-\nlations of this type can result in termination of the acreage in-\nvolved” and that Mr. Mittelstadt’s “re-enrollment/extension\noffer cannot be approved until this issue is settled.”11\n At a hearing on October 25, 2006, the FSA County Com-\nmittee discussed the issues raised by the inspections, and the\nnext day, the committee sent Mr. Mittelstadt a letter terminat-\ning Contract 653. The committee explained that, in 1997,\nMr. Mittelstadt’s acreage did not have “a ‘mixed hardwood\nstand of trees (more than one species of hardwood trees)’ be-\ncause of the ‘failed population of red oak.’”12 As a result, the\nFSA had assigned incorrectly an EBI score of fifty points upon\nreenrollment of the land in the CRP. Further, to “be eligible to\nbe placed in the CRP,” land must qualify under a covered cat-\negory, such as “[a]creage enrolled in CRP during the final\nyear of the CRP contract.” 7 C.F.R. § 1410.6(a). Because\nMr. Mittelstadt’s land was enrolled improperly under\n\n\n\n\n9 R.16-5 at 3.\n10 R.19 at 103 (Letter from Reuter to Mr. Mittelstadt (Sept. 21, 2006)).\n11 Id. at 103–04.\n12 R.16-5 at 4.\n\f6 No. 17-2447\n\nContract 653 in 1997, the committee also found it was not eli-\ngible for reenrollment under Contract 1710 in 2006.\n Mr. Mittelstadt appealed the County Committee’s deci-\nsion to the Wisconsin State FSA Committee. By letter dated\nAugust 13, 2007, the State FSA Committee upheld the County\nCommittee’s decision, finding that “[t]here are no areas of the\ncontract that qualify as ‘mixed hardwoods.’”13 The State Com-\nmittee concluded that “the scoring of the contract offer in 1997\nwas incorrect,” and that the land was “also ineligible for\nre-enrollment through the re-enrollment and extension pro-\ncess that was conducted in 2006 because the current contract\nwas not in compliance.”14\n C.\n Mr. Mittelstadt sought review from the USDA’s National\nAppeals Division, where the parties stipulated that the sole\nissue on appeal was the propriety of the eligibility determina-\ntion with respect to Contract 653 that had been made in 1997.\nThe Hearing Officer upheld the State Committee’s decision,\nbut, on further review, the Deputy Director reversed the de-\ncision. Because “the preponderance of the evidence show[ed]\nthat the placement of trees on Appellant’s land satisfied the\n‘mixed hardwoods established’ requirement for a CP11 prac-\ntice and warranted the assigned EBI score of fifty points,” the\nDeputy Director ordered the FSA to reinstate Contract 653.15\nHowever, the Deputy Director found no error with respect to\nthe FSA’s denial of reenrollment under Contract 1710. Given\n\n\n13 R.19 at 38.\n14 Id.\n15 R.16-5 at 7.\n\fNo. 17-2447 7\n\nthat Mr. Mittelstadt’s land “may not meet new standards such\nas a new definition of mixed hardwood stand or FSA other-\nwise may have a legitimate reason for not extending re-enroll-\nment,” the decision “was supported by applicable regulations\nand substantial evidence in the record.”16\n Mr. Mittelstadt sought reconsideration of the Deputy Di-\nrector’s decision, which the FSA Director denied. The Director\nexplained that “agency regulations at 7 C.F.R. § 1410.31(a)\nprovide that acceptance or rejection of any offer of land by an\nowner for CRP participation shall be in the sole discretion of\nthe CCC and offers may be rejected for any reason as deter-\nmined to accomplish the goals of the program.”17 According\nto the Director, “[w]hile not cited in the determination, this\nregulation was the basis” for the Deputy Director’s decision.18\nThus, “[o]nce FSA concluded that the property no longer had\nas high an EBI score as it once did, FSA could use that score\nto decide that funding a continuation of enrollment of the\nproperty was not as high a priority as funding other CRP con-\ntracts.”19\n\n\n D.\n Having exhausted his administrative appeals, Mr. Mittel-\nstadt filed a complaint in the district court. He asserted a\nclaim under the APA, contending that the decision denying\n\n\n16 Id.\n17 R.16-6 at 1.\n18 Id.\n19 Id.\n\f8 No. 17-2447\n\nhis application for reenrollment under Contract 1710 was ar-\nbitrary, capricious, and unlawful. In the alternative, he set out\na common law claim, asserting that the agency breached its\nobligations under Contract 1710. He later moved for sum-\nmary judgment on both counts of the complaint.\n The district court denied Mr. Mittelstadt’s motion for\nsummary judgment and affirmed the agency’s final decision.\nFirst, the district court rejected Mr. Mittelstadt’s contention\nthat the Deputy Director of the National Appeals Division\nhad abused his discretion by upholding the denial of reenroll-\nment under Contract 1710 despite the parties’ stipulation that\nthe sole issue on appeal was the propriety of the 1997 eligibil-\nity determination. Second, the district court rejected Mr. Mit-\ntelstadt’s assertion that the USDA had abused its discretion\nby denying reenrollment of his land in 2007 based on a con-\nservation standard adopted in 2006. Third, the district court\ndismissed Mr. Mittelstadt’s common law claim for breach of\ncontract, determining that no contract existed to support that\nclaim. The district court then entered judgment in favor of the\nSecretary on Mr. Mittelstadt’s APA and breach of contract\nclaims. Mr. Mittelstadt timely sought review of the district\ncourt’s decision.20\n\n\n20 The district court had jurisdiction over this case under the judicial re-\nview provision of the APA, which waives sovereign immunity for actions\n“seeking relief other than money damages and stating a claim that an\nagency or an officer or employee thereof acted or failed to act in an official\ncapacity or under color of legal authority.” 5 U.S.C. § 702. For purposes of\n§ 702, the Supreme Court has held that the mere “fact that a judicial rem-\nedy may require one party to pay money to another is not a sufficient rea-\nson to characterize the relief as ‘money damages.’” Bowen v. Massachusetts,\n487 U.S. 879, 893 (1988). Instead, the critical question is whether the plain-\ntiff seeks substitute or specific relief. Whereas “[d]amages are given to the\n\fNo. 17-2447 9\n\n II\n DISCUSSION\n We review the district court’s decision on summary judg-\nment de novo. Stable Invs. P’ship v. Vilsack, 775 F.3d 910, 915\n(7th Cir. 2015). In “an action for review of final action taken\nby a federal administrative agency, the ultimate question is\nwhether that action is ‘arbitrary, capricious, an abuse of dis-\ncretion, or otherwise not in accordance with the law.’” Id. (ci-\ntation omitted) (quoting 5 U.S.C. § 706(2)). To “answer[] that\nquestion, we rely on the same administrative record that was\n\nplaintiff to substitute for a suffered loss,” specific remedies “attempt to\ngive the plaintiff the very thing to which he was entitled.” Id. at 895 (quot-\ning Maryland Dep’t of Human Res. v. Dep’t of Health & Human Servs., 763\nF.2d 1441, 1446 (D.C. Cir. 1985)) (emphasis in original). Here, Mr. Mittel-\nstadt’s request for an order directing the Secretary “to pay all amounts due\nand owing under Contract 1710,” R.3 ¶ 152, was not a request for “money\ndamages” because Mr. Mittelstadt sought payments “not as compensation\nfor [the Secretary’s] failure to perform some other obligation,” but as “the\nvery thing to which he was entitled” under the CRP. Columbus Reg’l Hosp.\nv. FEMA, 708 F.3d 893, 896 (7th Cir. 2013) (quoting Bowen, 487 U.S. at 895).\nMr. Mittelstadt’s APA claim challenging the Secretary’s decision denying\nreenrollment seeks “relief other than money damages,” and is “therefore\nwithin the waiver of sovereign immunity in section 702.” Maryland Dep’t\nof Human Res. v. Dep’t of Health & Human Servs., 763 F.2d 1441, 1448 (D.C.\nCir. 1985) (quoting 5 U.S.C. § 702). Additionally, because his breach of con-\ntract claim is, at base, an alternative request for administrative relief di-\nrecting the Secretary to make the payments to which Mr. Mittelstadt\nwould have been entitled under Contract 1710, this claim is simply a dif-\nferent way of characterizing his request for “the very thing to which he\nwas entitled” under the CRP. Columbus Reg’l Hosp., 708 F.3d at 896 (quot-\ning Bowen, 487 U.S. at 895). Jurisdiction over Mr. Mittelstadt’s breach of\ncontract claim was therefore proper under § 702. We have jurisdiction over\nthis appeal from the district court’s entry of summary judgment under 28\nU.S.C. § 1291.\n\f10 No. 17-2447\n\nbefore the district court and render an independent judgment\nas to whether the agency acted unreasonably.” Id. Under this\n“deferential standard,” we “will uphold a decision of less\nthan ideal clarity if the agency’s path may reasonably be dis-\ncerned.” St. Clair v. Sec’y of Navy, 155 F.3d 848, 851 (7th Cir.\n1998) (internal quotation marks omitted).\n A.\n We begin with an examination of the governing statutory\nscheme. As part of the Food Security Act of 1985,21 Congress\nestablished the CRP. This program incentivizes landowners\nto remove environmentally sensitive land from agricultural\nproduction in return for annual rental payments from the\nUSDA. S. Rep. 99-145, at 1971 (1985). The impetus for the de-\nvelopment of the CRP was an increased concern about soil\nerosion. Id. In 1982, the National Resources Inventory22 had\ndetermined that almost fifty percent of erosion occurred on\nonly ten percent of cropland in the United States. Id. The Soil\nConservation Service projected that the CRP would “reduce\nwind and water erosion on these acres by an average of nearly\n20 tons per acre per year.” Id. (capitalization omitted). Ac-\ncordingly, Congress directed the Secretary to “formulate and\ncarry out” the CRP by awarding contracts to encourage land-\nowners “to conserve and improve the soil, water, and wildlife\nresources of such land and to address issues raised by State,\n\n\n21 Pub. L. No. 99-198, §§ 1201, 1231–1236, 99 Stat. 1354, 1504–05, 1509–14\n(codified as amended at 16 U.S.C. §§ 3801, 3831–3836).\n22 Administered by the NRCS, the National Resources Inventory is a “sta-\ntistically-based survey” designed to “assess conditions and trends of soil,\nwater, and related resources on nonfederal lands in the United States.” 7\nC.F.R. § 601.1(f)(1)(v).\n\fNo. 17-2447 11\n\nregional, and national conservation initiatives.” 16 U.S.C.\n§ 3831(a).\n The USDA oversees the CRP, with funding provided by\nthe CCC, an entity owned and operated by the government.\n16 U.S.C. § 3841(a). Together with the FSA, the CCC is respon-\nsible for implementing the regulations governing the CRP. 7\nC.F.R. § 1410.1(a). The Agricultural Stabilization and Conser-\nvation Service, which operates through state and county com-\nmittees, administers the CRP on behalf of the CCC.\n The FSA and the Agricultural Stabilization and Conserva-\ntion Service also have issued, for use by the state and county\ncommittees, handbooks detailing the procedures and require-\nments for implementing and participating in the CRP. These\nhandbooks, which were not published in the Federal Register\nand therefore were not promulgated according to the require-\nments of the APA, are interpretive only and do not have the\nforce or effect of official regulations.23\n The statute limits the type and total acreage of land that\ncan be enrolled in the CRP. Land eligible for enrollment in-\ncludes certain highly erodible cropland, marginal pasture\nland, grasslands, and, at the Secretary’s determination, other-\nwise ineligible cropland that poses an environmental threat.\n16 U.S.C. § 3831(b). During fiscal year 2018, the Secretary\ncould maintain no more than twenty-four million acres of\nland in the program. Id. § 3831(d)(1)(E). Additionally, the\n\n\n23 See Westcott v. U.S. Dep’t of Agric., 765 F.2d 121, 122 (8th Cir. 1985) (per\ncuriam); see also Thomas v. Cty. Office Comm. of Cameron Cty., 327 F. Supp.\n1244, 1253 (S.D. Tex. 1971); Graham v. Lawrimore, 185 F. Supp. 761, 764\n(E.D.S.C. 1960); Hawkins v. State Agric. Stabilization & Conservation Comm.,\n149 F. Supp. 681, 686 (S.D. Tex. 1957).\n\f12 No. 17-2447\n\nSecretary cannot enroll more than twenty-five percent of the\ncropland in any county unless he determines that enrolling a\nlarger percentage “would not adversely affect the local econ-\nomy.” 16 U.S.C. § 3844(f).\n Landowners who wish to participate in the CRP must en-\ngage in a bid system. According to the legislative history, the\nstatute utilizes this system because “the competitive bid sys-\ntem is the most cost-effective means of identifying our least\nproductive and most erosion prone acreage, while at the same\ntime minimizing cost to the U.S. Treasury.” S. Rep. 99-145, at\n1971 (capitalization omitted). Congress determines, for a\ngiven year, the maximum acreage permitted to be enrolled in\nthe CRP each time it amends the authorizing statute.24 Indi-\nvidual rental payments are capped at $50,000 per year. 16\nU.S.C. § 3834(g)(1).\n To participate in the bidding process, landowners submit\noffers to the CCC indicating “the amounts they are willing to\naccept as rental payments to enroll their acreage in the CRP.”\n7 C.F.R. § 1410.31(a). The CCC may evaluate offers “on a com-\npetitive basis in which the offers selected will be those where\nthe greatest environmental benefits relative to cost are gener-\nated.” Id. In evaluating offers, the agency employs a national\nEBI, which “provides a relative ranking of estimated environ-\nmental benefits and cost for land offered for CRP.”25 “Ac-\nceptance or rejection of any offer” is “in the sole discretion of\nthe CCC[,] and offers may be rejected for any reason as\n\n\n24 See Agriculture Improvement Act of 2018, Pub. L. No. 115-334, §\n 2201(c)\n(amending 16 U.S.C. § 3831(d)); Agricultural Act of 2014, Pub. L. No.\n113-79, § 2001(d) (same).\n25 R.16-1 at 679.\n\fNo. 17-2447 13\n\ndetermined needed to accomplish the goals of CRP.” 7 C.F.R.\n§ 1410.31(a). When evaluating contract offers, the CCC may\nconsider such factors as soil erosion, water quality, wildlife\nbenefits, soil productivity, the “[l]ikelihood that enrolled land\nwill remain in non-agriculture use beyond the contract pe-\nriod,” air quality, and the cost of enrolling the land in the CRP.\nId. § 1410.31(b). Offers to enroll in the CRP are “irrevocable\nfor such period as is determined and announced by the Dep-\nuty Administrator” of the FSA. 7 C.F.R. § 1410.32(c)(2). If an\napplicant revokes his offer during the irrevocable period, he\nmay be liable to the CCC for liquidated damages. Id.\n Following CCC approval, the USDA awards CRP con-\ntracts for terms between ten and fifteen years, depending on\nthe type of land involved. 16 U.S.C. § 3831(e)(1).26 In return\nfor converting their land to less intensive uses, landowners\nreceive annual rental payments. 16 U.S.C. § 3833(a)(2). The\namounts of these payments are determined when the land-\nowners submit bids for CRP contracts. 16 U.S.C.\n§ 3834(d)(2)(A)(i).\n Participants in the CRP must obtain and implement a con-\nservation plan outlining required conservation practices for\nthe enrolled land. The conservation plan is considered part of\nthe CRP contract, 7 C.F.R. § 1410.20(a)(2), and must be ap-\nproved by the conservation district in which the land is\n\n26 Specifically, “[c]ontracts with land devoted to hardwood trees, shelter-\nbelts, windbreaks, or wildlife corridors will be for a term of 10 years to 15\nyears, as requested by the applicant.” 7 C.F.R. § 1410.7(a). By contrast,\n“[o]ther general and continuous signup contracts … will be for a term of\n10 to 15 years, as determined by the Deputy Administrator.” Id.\n§ 1410.7(b). “Grassland signup contracts will be for a term of 15 years.” Id.\n§ 1410.7(c).\n\f14 No. 17-2447\n\nlocated, 7 C.F.R. §§ 1410.3(b), 1410.22(a). Landowners must\n“[e]stablish and maintain” the required vegetative cover and\nthe required practices on the enrolled land, and must “take\nother actions that may be required by CCC to achieve the de-\nsired environmental benefits and to maintain the productive\ncapability of the soil throughout the contract period.” 7 C.F.R.\n§ 1410.20(a)(6). All conservation plans and revisions to such\nplans are subject to the approval of the Deputy Administrator\nof the FSA. 7 C.F.R. § 1410.22(e). Subject to fund availability,\nthe CCC must “[s]hare up to 50 percent of the cost” of estab-\nlishing conservation practices with CRP participants. 7 C.F.R.\n§ 1410.21(a). Rental payments combined with cost-sharing are\ndesigned to assure landowners of a return on the land with-\nout having to risk large sums of money to adopt conservation\npractices.27\n The CCC retains the authority to modify or terminate an\nexisting CRP contract. Specifically, the CCC can modify a CRP\ncontract if the Deputy Administrator determines that,\nthrough no fault of the participant, the “installed practice\nfailed to adequately provide for the desired environmental\nbenefit” or “deteriorated,” and that “[a]nother practice will\nachieve at least the same level of environmental benefit.” 7\nC.F.R. § 1410.33(b). Additionally, the CCC can terminate a\nCRP contract before expiration of the term if, among other\ngrounds, “[t]he participant is not in compliance with the\nterms and conditions of the contract,” “[t]he CRP practice fails\nor is not established after a certain time period,” the “contract\nwas approved based on erroneous eligibility determina-\ntions,” or “[t]he Deputy Administrator determines that such\n\n27See Michael W. Strain, Student Survey, The Conservation Reserve: A Bold\nStep Towards the Future, 31 S.D. L. Rev. 523, 529 (1986).\n\fNo. 17-2447 15\n\na termination is needed in the public interest, or is otherwise\nnecessary and appropriate to further the goals of CRP.” 7\nC.F.R. § 1410.32(f).\n This statutory and regulatory scheme places considerable\ndiscretion over CRP participation in the hands of the FSA. The\nimplementing regulations afford the agency broad discretion\nto evaluate offers for enrollment and reenrollment in the pro-\ngram:\n [O]ffers may, to the extent practicable, be evalu-\n ated on a competitive basis in which the offers\n selected will be those where the greatest envi-\n ronmental benefits relative to cost are gener-\n ated … . Acceptance or rejection of any offer,\n however, shall be in the sole discretion of the\n CCC and offers may be rejected for any reason\n as determined needed to accomplish the goals\n of CRP.\n7 C.F.R. § 1410.31(a). Although we have had no occasion to\ndescribe the scope of discretion under this particular regula-\ntion, our cases involving other statutory and regulatory\ngrants of “sole discretion” confirm that this language confers\nwide latitude upon the relevant actor.28\n\n\n\n28 See, e.g., Mahler v. U.S. Forest Serv., 128 F.3d 573, 577–78 (7th Cir. 1997)\n(concluding, where the Rescissions Act of 1995 required the Secretary of\nAgriculture to prepare an environmental assessment and a biological eval-\nuation “at the sole discretion of the Secretary concerned and to the extent\nthat the Secretary concerned considers appropriate and feasible,” that\n“this language clearly authorize[d] the Secretary to permit a shorter pe-\nriod for public comment than that usually required under the Public Par-\nticipation Law” (emphasis added)).\n\f16 No. 17-2447\n\n B.\n With this statutory and regulatory background in mind,\nwe turn first to Mr. Mittelstadt’s contention that the agency\nabused its discretion because it had not defined “mixed hard-\nwoods” when it considered his application for reenrollment\nunder Contract 653 in 1997 or under Contract 1710 in 2006.\nWe also consider his related argument that the agency’s ap-\nplication of a new interpretation of “mixed hardwoods,”\nadopted in 2006, when it denied his request for reenrollment\nunder Contract 1710 was an abuse of discretion.\n Here, the Secretary “readily acknowledge[d] that,\nthroughout the entire relevant time period, there was never a\npublished definition of ‘mixed hardwoods’ in FSA’s Hand-\nbook, in the regulations, or elsewhere.”29 Nevertheless, to\nevaluate Mr. Mittelstadt’s 2006 application for reenrollment,\nthe agency interpreted “mixed hardwoods” to mean “two\nspecies of hardwoods planted together in the same rows.”30\nGiven the great discretion vested in the Secretary to obtain\noptimal environmental return for every dollar appropriated\nfor the CRP, the FSA clearly had the capability to tighten the\ndefinition of “mixed hardwoods” for new contract periods.31\nThe very nature of the program affords the Secretary the au-\nthority to change the terms and conditions of participation in\n\n\n29 Appellee’s Br. 35.\n30 R.9 ¶ 70.\n31 Cf. Paragon Health Network, Inc. v. Thompson, 251 F.3d 1141, 1147 (7th Cir.\n\n2001) (noting that “Congress is presumed to have delegated the primary\npower to fill regulatory ambiguities to the agency, and courts owe defer-\nence to agency decisions that clarify a regulation regardless of the fact that\nthe agency waited to exercise this power”).\n\fNo. 17-2447 17\n\norder to achieve, given the resources available, the most ad-\nvantageous result. The USDA’s policy, therefore, was to\nmaintain a competitive program that allowed the Secretary to\nselect, based on currently available funding, the best land\navailable to attain the goals of the program. The agency did\nnot have to contract for the same conservation measures at the\nsame price upon each reenrollment.\n The Secretary’s decision to limit program participation to\nland with a different pattern of hardwoods, a pattern that he\ndeemed more favorable to the conservation ends of the pro-\ngram, cannot be characterized fairly as the reversal of an\nagency policy. Because there was no previous specific defini-\ntion applicable to all future contracts set forth in the regula-\ntions or even in the FSA Handbook, the Secretary did not re-\nverse a governing policy.32 For the same reason, the 2006 re-\nquirement cannot be characterized as such “a sudden and un-\nexpected change in agency policy” as to be arbitrary, capri-\ncious, or an abuse of discretion.33 The new requirement is\ngrounded firmly in the governing statutes and regulations\nand implements the Secretary’s decision that such a criterion\n\n\n32 Cf. Friends of the Boundary Waters Wilderness v. Dombeck, 164 F.3d 1115,\n1123 (8th Cir. 1999) (holding that, since no prior Forest Service or USDA\nplans provided a definition of the term “guest” for purposes of motorboat\nuse restrictions, the definition newly provided by the Forest Service to\navoid abuses of the motorboat use quota system could not “be considered\nas reversing a prior agency policy” and was entitled to deference).\n33 See id. (observing that “‘the mere fact that an agency interpretation con-\n\ntradicts a prior agency position is not fatal,’ unless the new position is a\nsudden and unexpected change in agency policy that can be characterized\nas arbitrary, capricious, or an abuse of discretion” (quoting Smiley v. Citi-\nbank (S.D.), N.A., 517 U.S. 735, 742 (1996)).\n\f18 No. 17-2447\n\nwill ensure that the available government funds are imple-\nmented in the most effective manner.34\n Mr. Mittelstadt conceded that “there were never areas of\n[his] acreage planted to more than one species of hard-\nwood.”35 He had understood that “the terminology ‘mixed\nhardwoods’ mean[t] only 1 hardwood species ‘mixed’ with\npine.”36 Accordingly, in 1989, he planted three sections of\ntrees on his land: (1) walnut and white pine trees, (2) red oak\nand white pine trees, and (3) solely white pine trees.37 Pine\ntrees are softwoods, whereas walnut and red oak trees are\nhardwoods, so that no section he planted had more than one\nspecies of hardwood tree mixed with pine. It follows that, by\n2006, his acreage did not meet the FSA’s new requirement,\nwhich required that “there be at least 2 species of hardwoods\n\n34 Mr. Mittelstadt asserts that the FSA was “affirmatively required” to in-\nform him of the new interpretation of “mixed hardwoods” and to “help[]\nhim craft a new plan that would elevate [Tract 9073’s] EBI score by chang-\ning the arrangement of hardwood species.” Appellant’s Br. 32. He relies\non the FSA Handbook, which states that the “FSA will review EBI scoring\nparameters with the producers and encourage the planting of cover types\nand conservation measures, if appropriate, that will provide higher envi-\nronmental benefits.” R.16-1 at 679. However, the agency did not discover\nthat Mr. Mittelstadt’s land did not meet the new requirement for “mixed\nhardwoods” until he began the reenrollment process, at which point the\nmaintenance inspections revealed CRP violations. The agency informed\nhim that, to reenroll his land, he could cure the violations by planting two\nor more species of hardwood trees mixed with a softwood tree. The FSA\nHandbook, which does not confer a legal right on Mr. Mittelstadt to par-\nticipate in the program, did not require more.\n35 R.19 at 36–37.\n36 Id. at 37.\n37 Id. at 28.\n\fNo. 17-2447 19\n\nmixed into the rows of hardwoods.”38 The FSA therefore did\nnot abuse its discretion when it determined that Mr. Mittel-\nstadt’s land did not satisfy the 2006 requirement of “mixed\nhardwoods.”39\n C.\n\n38 Id. at 37. Relatedly, Mr. Mittelstadt submits that it was error for the FSA\n\nnot to recalculate the EBI score for Tract 9073 using its new interpretation\nof “mixed hardwoods.” At multiple stages of the review process, how-\never, the agency concluded that there were “no areas of the contract that\nqualify as ‘mixed hardwoods’” under the 2006 requirement. R.19 at 38; see\nalso R.16-4 at 5. Nor does Mr. Mittelstadt contend that he engaged in other\nconservation practices that would contribute to Tract 9073’s EBI score. Ac-\ncordingly, no formal recalculation was needed to conclude that, under the\nnew interpretation, Tract 9073 “no longer had as high an EBI score as it\nonce did.” R.16-6 at 1. The FSA’s failure to formally recalculate the EBI\nscore for Tract 9073 was not an abuse of discretion.\n39 Mr. Mittelstadt’s claim that complying with the FSA’s new interpreta-\ntion of “mixed hardwoods” would have brought him in violation of the\nexisting conservation plan under either Contract 653 or Contract 1710 is\nunsubstantiated. The 1997 conservation plan for Contract 653 instructed:\n CRP-CP11. The existing tree planting will not be man-\n aged for Christmas trees and will be protected from fire\n and from grazing by domestic livestock for the duration\n of the CRP contract.\nR.19-2 at 13. Similarly, the 2006 conservation plan for Contract 1710 stated:\n CRP-CP11. Vegetative Cover, Trees Already Estab-\n lished. … The existing tree planting will not be managed\n for Christmas trees and will be protected from fire and\n from grazing by livestock for the duration of the CRP con-\n tract. Spot treat for weed and brush control … .\nR.19-1 at 39. Nothing in either conservation plan suggests that Mr. Mittel-\nstadt would have violated those terms by planting “two species of hard-\nwoods … together in the same rows.” R.9 ¶ 70.\n\f20 No. 17-2447\n\n We turn next to Mr. Mittelstadt’s contention that the FSA\nerroneously relied on 7 C.F.R. § 1410.31(a) to uphold the\nCCC’s denial of reenrollment under Contract 1710. According\nto Mr. Mittelstadt, this provision “has nothing to do with the\npost-award process through which Tract 9073 was disquali-\nfied from Contract 1710,” and “instead describes the\npre-award process” through which Contract 1710 was\nawarded.40 We cannot accept this argument because it is\npremised on a nonexistent temporal distinction.\n The FSA Handbook instructs that, “[w]hen the producer\nis ready to submit an offer, County Offices shall provide … to\nthe producer” Form CRP-1.41 Once a producer submits an\n\n\n\n40 Appellant’s Br. 35–36.\n41 R.16-1 at 179. As an alternative theory of recovery, Mr. Mittelstadt as-\nserts that, when the agency sent him Form CRP-1 for Contract 1710, it had\naccepted his offer of reenrollment, and there was a binding contract. But\nthat argument ignores the FSA’s express description of Form CRP-1 as a\nform document that constitutes the producer’s “offer” of enrollment in the\nCRP, not the agency’s acceptance of that offer. Further, the FSA Handbook\nstates that “[p]roducers withdrawing CRP-1 during the irrevocable period\nshall be subject to liquidated damages,” id., and Form CRP-1 reiterates\nthat, by signing the form, the participant “agrees to pay such liquidated\ndamages … if the Participant withdraws prior to CCC acceptance or rejec-\ntion.” R.19-1 at 45. These provisions confirm that Form CRP-1 constitutes\nan offer to be considered by the CCC, not a binding contract. Given that\nthe regulations similarly require that a producer pay liquidated damages\nto the CCC if he “revokes an offer during the period in which the offer is\nirrevocable,” 7 C.F.R. § 1410.32(c)(2) (emphases added), the prospect of\nhaving to pay liquidated damages provides no support to Mr. Mittel-\nstadt’s position that a binding contract existed. Finally, the FSA Handbook\nrequires that Form CRP-1 “be signed and dated by all required signato-\nries,” R.16-2 at 183, but Mr. Mittelstadt never received a countersigned\n\fNo. 17-2447 21\n\noffer on Form CRP-1, the FSA County Committee “shall sub-\nmit all offers … to the national level for review and evalua-\ntion.”42 The regulation at issue, 7 C.F.R. § 1410.31(a), confers\n“sole discretion” upon the CCC to evaluate offers of enroll-\nment in the CRP “on a competitive basis in which the offers\nselected will be those where the greatest environmental ben-\nefits relative to cost are generated.” The regulations further\nprovide that, “[i]n order to be eligible to be placed in the CRP,\nland must” qualify under an enumerated eligibility category,\nsuch as “[a]creage enrolled in CRP during the final year of the\nCRP contract.” 7 C.F.R. § 1410.6(a).\n In 2006, when the FSA County Committee concluded that\nthe 1997 eligibility determination had been incorrect and ter-\nminated Contract 653, Tract 9073 no longer qualified as eligi-\nble “[a]creage enrolled in CRP.” Id. However, when the Dep-\nuty Director of the National Appeals Division reversed that\ndetermination and reinstated Contract 653, the effect of his or-\nder was only to reinstate Tract 9073’s ground for eligibility\nunder 7 C.F.R. § 1410.6(a)(3).43 Mr. Mittelstadt’s bid to\n\n\ncopy of Contract 1710. Because there was no binding contract, Mr. Mittel-\nstadt cannot state a claim for breach.\n42 R.16-1 at 185 (emphasis omitted).\n43 Mr. Mittelstadt further contends that the Deputy Director’s ruling on\nthe reenrollment of Contract 1710 was improper because, at the pre-hear-\ning before the Hearing Officer, “the parties stipulated that the sole issue\non appeal was the erroneous eligibility determination that was made in\n1997.” R.16-5 at 4. The Hearing Officer found that the “FSA correctly de-\ntermined that Appellant did not establish a mixed stand of hardwood\ntrees on the contract acreage” and that “Appellant based his request for\nCRP reenrollment under contract 1710 on the same inaccurate EBI scoring\nused in CRP contract 653.” R.16-4 at 5–6. Accordingly, the Hearing Officer\ndetermined both that “FSA correctly terminated contract 653 because of\n\f22 No. 17-2447\n\nreenroll was still subject to the CCC’s discretion to evaluate\nhis offer based on its relative competitiveness, see 7 C.F.R.\n§ 1410.31(a), and actual reenrollment required CCC approval.\nThe FSA Director recognized precisely this degree of discre-\ntion when he denied Mr. Mittelstadt’s request for reconsider-\nation, explaining that “agency regulations at 7 C.F.R.\n§ 1410.31(a) provide that acceptance or rejection of any offer\nof land by an owner for CRP participation shall be in the sole\ndiscretion of the CCC and offers may be rejected for any rea-\nson as determined to accomplish the goals of the program.”44\nAccording to the Director, “[w]hile not cited in the determi-\nnation, this regulation was the basis” for the Deputy Direc-\ntor’s decision.45 It was no abuse of discretion for the FSA to\nrely on 7 C.F.R. § 1410.31(a) to uphold the CCC’s decision.\n Relatedly, Mr. Mittelstadt claims that the agency was first\nrequired to change his conservation plan to comply with its\nnew interpretation of “mixed hardwoods” and that, if he “re-\nfused to conform Tract 9073 to the corrected Conservation\n\n\n\n\nan inaccurate EBI score” and that FSA “correctly denied Appellant’s reen-\nrollment request under CRP contract 1710.” Id. at 6. Thus, the Deputy Di-\nrector’s review of the Hearing Officer’s decision necessarily encompassed\nboth the Hearing Officer’s findings with regard to the termination of Con-\ntract 653 and the reenrollment under Contract 1710, which were “based”\non “the same inaccurate EBI scor[e].” Id. The district court correctly con-\ncluded that “the parties’ stipulation … ma[de] little practical sense on its\nface,” R.25 at 18, given that the Deputy Director could not properly review\nthe Hearing Officer’s decision without considering the grounds for that\ndecision in full.\n44 R.16-6 at 1.\n45 Id.\n\fNo. 17-2447 23\n\nPlan, the Tract would then be in violation.”46 But Mr. Mittel-\nstadt confuses the order of procedure required. The FSA\nHandbook instructs that, “[i]f [an] offer is determined ac-\nceptable,” then “a conservation plan must be developed by\nNRCS … and approved by the Conservation District before\nCRP-1 can be approved” by the FSA County Committee.47 Be-\ncause the FSA never accepted Mr. Mittelstadt’s offer to reen-\nroll his land, the agency was under no obligation to develop\na new conservation plan for Tract 9073 before denying reen-\nrollment. The FSA’s course of proceeding simply was not an\nabuse of discretion.\n Conclusion\n For the foregoing reasons, we affirm the judgment of the\ndistrict court.\n AFFIRMED\n\n\n\n\n46 Appellant’s Br. 49 (emphasis in original).\n47 R.16-1 at 186.\n[END_CASE]", "role": "user" } ]
4,581,740		William Rainsberger v. Charles Benner	2019-01-15	17-2521	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before WOOD, Chief Judge, and HAMILTON and BARRETT, Circuit Judges.", "parties": "", "opinions": [{"author": "BARRETT, Circuit Judge", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________ \nNo. 17‐2521 \nWILLIAM RAINSBERGER, \n Plaintiff‐Appellee, \n v. \n\nCHARLES BENNER, \n Defendant‐Appellant. \n ____________________ \n\n Appeal from the United States District Court for the \n Southern District of Indiana, Indianapolis Division. \n No. 1:16‐cv‐00103‐WTL‐MJD — William T. Lawrence, Judge. \n ____________________ \n\n ARGUED JANUARY 4, 2018 — DECIDED JANUARY 15, 2019 \n ____________________ \n\n Before WOOD, Chief Judge, and HAMILTON and BARRETT, \nCircuit Judges. \n BARRETT, Circuit Judge. William Rainsberger was charged \nwith murdering his elderly mother. But the detective who \nbuilt the case against him, Charles Benner, may have been dis‐\nhonest. According to Rainsberger, Benner submitted a proba‐\nble cause aﬃdavit that was riddled with lies and undercut by \nthe omission of exculpatory evidence. Based on that aﬃdavit, \nRainsberger was arrested, charged, and imprisoned for two \n\f2 No. 17‐2521 \n\nmonths. When the prosecutor dismissed the case because of \nevidentiary problems, Rainsberger sued Benner under 42 \nU.S.C. § 1983 for violating his Fourth Amendment rights. Ben‐\nner moved for summary judgment, arguing that he was enti‐\ntled to qualified immunity. The district court denied his mo‐\ntion, and he now asks us to reverse the district court. \n We decline to do so. Benner concedes for purposes of this \nappeal that he knowingly or recklessly made false statements \nin the probable cause affidavit. He emphasizes, however, that \nknowingly or recklessly misleading the magistrate in a prob‐\nable cause affidavit—whether by omissions or outright lies—\nonly violates the Fourth Amendment if the omissions and lies \nwere material to probable cause. He claims that his weren’t, \nbut we disagree. Materiality depends on whether the affidavit \ndemonstrates probable cause when the lies are taken out and \nthe exculpatory evidence is added in. And when that is done \nhere, Benner’s affidavit fails to establish probable cause to be‐\nlieve that Rainsberger murdered his mother. Because it is \nclearly established that it violates the Fourth Amendment “to \nuse deliberately falsified allegations to demonstrate probable \ncause,” Franks v. Delaware, 438 U.S. 154, 168 (1978), Benner is \nnot entitled to qualified immunity. \n I. \n We start with an issue that affects both appellate jurisdic‐\ntion and our rendition of the facts. This is an appeal from the \ndistrict court’s order denying Benner’s motion for summary \njudgment on the ground of qualified immunity. In the normal \ncourse, we lack jurisdiction to review an order denying sum‐\nmary judgment because it is not a “final decision” under 28 \nU.S.C. § 1291. See Gutierrez v. Kermon, 722 F.3d 1003, 1009 (7th \n\fNo. 17‐2521 3 \n\nCir. 2013). But because “qualified immunity is in part an enti‐\ntlement not to be forced to litigate the consequences of official \nconduct,” Mitchell v. Forsyth, 472 U.S. 511, 527 (1985), the de‐\nnial of qualified immunity is an appealable interlocutory de‐\ncision—at least insofar as it turns exclusively on a question of \nlaw, id. at 530. That qualification is significant: because our \nauthority extends only to questions of law, an officer can ob‐\ntain interlocutory review only if he refrains from contesting \nany fact that a reasonable jury could resolve against him. See \nJones v. Clark, 630 F.3d 677, 680 (7th Cir.2011) (“In a collateral‐\norder appeal …, where the defendants say that they accept \nthe plaintiff’s version of the facts, we will take them at their \nword and consider their legal arguments in that light. If, how‐\never, we detect a back‐door effort to contest the facts, we will \nreject it and dismiss the appeal for want of jurisdiction.”). \nBenner does so here. For purposes of this appeal, he accepts \nas true Rainsberger’s version of all facts that are in material \ndispute—most significantly, that he knowingly or recklessly \nmade false or misleading statements in the affidavit that se‐\ncured Rainsberger’s arrest. In what follows, then, we recount \nthe facts that we must take as true, drawing all inferences in \nRainsberger’s favor. The legal question that we must decide \nis whether Benner is entitled to qualified immunity on these \nfacts. \n A. \n Rainsberger was the primary caregiver for his mother, \nRuth, who was 88 years old and suﬀering from dementia.1 \nRuth lived alone in an apartment in a high‐crime area; Rains‐\nberger lived nearby. He checked on her daily, did her grocery \n \n1 We will refer to the other members of the Rainsberger family by their \n\nfirst names for the sake of clarity. \n\f4 No. 17‐2521 \n\nshopping, and handled her finances. His siblings Robert and \nRebecca also helped care for Ruth, although they saw her less \nfrequently. \n At approximately 3:30 p.m. on November 19, 2013, Rains‐\nberger went to Ruth’s apartment and found the door un‐\nlocked. When he entered, he discovered Ruth lying facedown \non the floor with a blanket covering her shoulders and head. \nShe was breathing, but with diﬃculty. There was a large circle \nof dried blood on the blanket and a pool of congealed blood \non the floor. Rainsberger did not remove the blanket because \nhe believed that it was acting as a bandage, and he feared that \nthe bleeding would increase if he pulled it oﬀ. \n Rainsberger called 911 from his mother’s landline at 3:37 \np.m. He told the operator that someone had “bashed [his \nmother’s] head in.” He then called his brother Robert and told \nhim to come to the apartment immediately. Rainsberger \nwaited outside for the ambulance because Ruth’s apartment \nwas diﬃcult to locate within the complex. \n When paramedic Carl Wooldridge arrived, Rainsberger \ntold him that someone had “caved his mother’s head in.” \nWooldridge observed that the blanket covering Ruth’s head \nappeared to be stuck to a wound. He noticed “somewhat of a \nhole in [the blanket] where the wound was,” and when he \npeeled the blanket oﬀ, “there was a mark … on her forehead \nthat [he] believed to be an entrance wound.” Based on those \nobservations, Wooldridge told fire and ambulance personnel \nthat Ruth had been shot—a conclusion that the emergency \npersonnel thought odd, given the lack of blood splatter on the \nwalls or ceiling. As it turned out, Rainsberger, not \nWooldridge, had it right: Ruth died of blunt force trauma to \nthe head. Wooldridge later told Charles Benner, the detective \n\fNo. 17‐2521 5 \n\ninvestigating the murder, that he found it suspicious that \nRainsberger said that his mother’s head had been caved in \neven though he had not removed the blanket to look at her \ninjuries. \n Benner came to Ruth’s apartment roughly 40 minutes after \nRainsberger placed the 911 call. There was no sign of forced \nentry, and while some dresser drawers in Ruth’s bedroom \nwere open, their contents were undisturbed. Ruth’s check‐\nbook, credit cards, and some cash were found in the apart‐\nment. Her purse and prescription medication were not. \n Rainsberger and Robert, who had since arrived, voluntar‐\nily went to police headquarters to give statements to Benner. \nRainsberger said that he had last seen his mother the previous \nevening. After visiting her, he drove to Plainfield, which is \nroughly 25 miles away, to spend the evening with his wife. \nHe returned to his house the next morning, where he stayed \nuntil around 3:30 p.m. He then left home to check on his \nmother, stopping at Kroger on the way to buy an iced tea. He \ntold Benner that Ruth’s apartment was unlocked when he ar‐\nrived and that he found her lying wounded on the floor. He \nchecked the apartment for intruders and, finding none, called \n911. Rainsberger informed Benner that his mother was not \nphysically able to stand up and see through the peephole, so \nshe typically had to open the door to see who was there. And \nRainsberger said that Ruth had $80,000 to $100,000 in savings \nthat would be distributed to her three children upon her \ndeath. \n Robert told Benner that he had not seen Ruth for a few \ndays. He said that he had been at Rainsberger’s house when \nRainsberger called to tell him to come to Ruth’s apartment im‐\n\f6 No. 17‐2521 \n\nmediately. He explained that he had been living with Rains‐\nberger for a few months because he had lost his own home to \nforeclosure. \n Benner talked to Rainsberger’s sister Rebecca the next day. \nRebecca told Benner that she typically checked on her mother \nonce a week and had last seen her the day before the attack. \nSometime after his call with Rebecca, Benner asked the three \nsiblings to come to the station to review the results of Ruth’s \nautopsy. When they got there, however, Benner did not talk \nabout the autopsy. Instead, he accused Rainsberger and Rob‐\nert of murdering their mother for her money and asked them \nto take a polygraph. Upset at the accusation and at being \nlured to the station under false pretenses, they refused and \nleft. Roughly a week later, after obtaining counsel to represent \nthem, both Rainsberger and Robert agreed to go to the station \nto give fingerprints and submit to a DNA buccal swab. \n Benner did not wait for the results of the DNA tests before \nseeking to have Rainsberger arrested and charged. In early \nDecember 2013, Benner submitted a probable cause aﬃdavit \nto the Marion County prosecutor. But the prosecutor declined \nto pursue it, and Benner went back to find more evidence. \n Benner hoped that the results of the DNA tests would \nmake his case against Rainsberger. In March 2014, he noted in \nan email to a colleague that “[t]he victim’s sons are the sus‐\npects in this case and I am waiting for DNA results before any \narrest may be made.” But when the laboratory report came \nout in April 2014, it did not implicate Rainsberger—the DNA \nof two males was found on Ruth’s blanket and clothing, but \nneither Rainsberger nor Robert was a match. Benner took that \nresult in stride. Although the DNA test did not incriminate \n\fNo. 17‐2521 7 \n\nRainsberger, Benner did not think that it exonerated him ei‐\nther. (The same, of course, was true of Robert, but Benner was \nfocused on Rainsberger.) Benner reasoned that the unknown \nmale DNA on Ruth’s blanket and clothing might have been \nleft by emergency personnel rather than the killer. \n In May 2014, Benner went to the prosecutor with a second \nprobable cause aﬃdavit that was almost identical to the first. \nThe second aﬃdavit did not disclose the results of the DNA \ntest. But it added two pieces of evidence that Benner had ac‐\nquired since he presented the prosecutor with the first aﬃda‐\nvit. First, Benner used cell phone records to suggest that \nRainsberger had called Robert from Ruth’s apartment at 2:40 \np.m.—hours after Ruth was attacked and a little more than an \nhour before Rainsberger called 911. Second, he stated that cell \nphone tower location data could not place Rainsberger out‐\nside the area of his mother’s apartment during the relevant \nperiod. After receiving the second probable cause aﬃdavit, \nthe prosecutor went to Marion County Court and obtained a \nwarrant for Rainsberger’s arrest. Rainsberger was charged \nwith his mother’s murder and spent two months in jail before \nhe was released on bail. The prosecutor dismissed the case a \nyear later because of evidentiary problems. \n B. \n After the charges were dropped, Rainsberger sued Benner \nunder 42 U.S.C. § 1983, alleging that Benner had violated his \nFourth Amendment rights. Benner moved for summary judg‐\nment on the basis of qualified immunity, but the district court \ndenied the motion. It decided that a reasonable jury could find \nthat Benner knowingly or with reckless disregard for the truth \nmade false or misleading statements in the aﬃdavit. Probable \ncause did not exist without the false or misleading statements, \n\f8 No. 17‐2521 \n\nthe district court said, and because an oﬃcer who submits a \nmaterially misleading probable cause aﬃdavit violates \nclearly established Fourth Amendment law, it denied Benner \nqualified immunity. The district court’s order turned on the \nfollowing omissions and alleged lies.2 \n The phone records. The most damning addition to the sec‐\nond probable cause aﬃdavit was the suggestion that Rains‐\nberger called Robert’s cell phone from Ruth’s landline at 2:40 \np.m. on November 19. This placed Rainsberger at Ruth’s \napartment after she was injured and almost an hour before he \ncalled 911 for help. But the time stamp was inaccurate—and \nfor purposes of this appeal, we must assume that Benner \nknew it. A phone expert at the police department had ana‐\nlyzed the records and told Benner that the call had been \nrouted through a cell tower in Chicago, where it was one hour \nearlier. Thus, despite the 2:40 p.m. time stamp, the call had \nbeen placed at 3:40 p.m. Indianapolis time. It was the call that \nRainsberger had made to Robert just after he found Ruth and \ncalled 911. Benner chose to use the inaccurate and incriminat‐\ning time in his aﬃdavit. \n The Kroger video. Rainsberger had stopped at Kroger to buy \nan iced tea before going to Ruth’s apartment on the day of the \n\n \n2 Rainsberger complains about omissions in addition to those we detail \n\nhere. For example, he faults Benner for failing to include the results of the \nDNA test, the fact that Ruth lived in a high‐crime area, and the fact that \nshe would often open the door to strangers because she couldn’t see \nthrough the peephole. The district court chose not to determine whether \nthis information was material because it found probable cause lacking \neven without it. Because we agree that the hypothetical affidavit fails to \nestablish probable cause even without this evidence, we take the same ap‐\nproach as the district court. \n\fNo. 17‐2521 9 \n\nmurder. In the probable cause aﬃdavit, Benner described sur‐\nveillance video from Kroger that showed Rainsberger making \na trip to a trash can. According to Benner, Rainsberger “ap‐\npeared to pull out a straight object from his person which he \nplaced in the garbage can.” But the district court observed that \nnothing on the video shows Rainsberger “‘pulling’ the object \nfrom anywhere.” Benner also claimed that “[a]s [Rainsberger] \nplaced the object in the trash he appeared to look around for \ncameras.” But as the district court said, a reasonable jury \ncould find that Benner deliberately mischaracterized Rains‐\nberger’s behavior, which does not appear furtive on the video. \nAnd after watching the video ourselves, we agree with Rains‐\nberger that a reasonable jury could find that Benner intention‐\nally misled the prosecutor and magistrate in yet another re‐\nspect: by describing Rainsberger’s trash as a “straight object.” \nThat phrase was obviously designed to imply that Rains‐\nberger disposed of the murder weapon, but the object that \nRainsberger threw away looks far more like a soda can than a \n“straight object.”3 Viewed in Rainsberger’s favor, the video \ndepicts him carrying a small nondescript piece of trash \nthrough a parking lot and throwing it away near the entrance \nto the grocery store—in broad daylight and while other pa‐\ntrons are walking by. \n The evidence of burglary. Benner believed that Ruth’s at‐\ntacker was someone she knew rather than a thief. Consistent \nwith that theory, Benner swore in the aﬃdavit that nothing \n\n \n3 The district court did not address the shape of the trash, and its hypo‐\n\nthetical affidavit left intact Benner’s statement that “Rainsberger placed \nwhat appeared to be a straight object in the garbage can.” After viewing \nthe video in the light most favorable to Rainsberger, we refer to the waste \nsimply as “trash” in evaluating the affidavit. \n\f10 No. 17‐2521 \n\nhad been taken from the apartment. He noted that there was \nno sign of forced entry; that cash, a checkbook, and credit \ncards were still in the apartment; and that things were undis‐\nturbed apart from a few open drawers. But the district court \nconcluded that a jury could find that Benner intentionally \nmisled the prosecutor and magistrate in two respects. First, he \nfailed to tell them that Ruth’s purse and prescription medica‐\ntion were missing. Second, he stated that a lockbox containing \nsavings bonds was untouched and in plain view, even though \nthe lockbox was neither in plain view nor a repository of sav‐\nings bonds. \n Rainsberger’s concern for his mother. Benner described \nRainsberger as lacking concern for his mother. He stated that \nafter Rainsberger called 911, he “went outside to wait for the \nambulance” and “left his mother unattended until the police \narrived.” Benner conspicuously omitted Rainsberger’s expla‐\nnation for doing so—that he wanted to direct the ambulance \nto Ruth’s apartment, which was hard to find. And continuing \nwith this “callous son” theme, Benner asserted that when they \nwere questioned on the day of the attack, “[a]t no time did \nRobert or his brother, Rainsberger, ever ask me how their \nmom was doing or if they could get to the hospital to see her.” \nBenner knew, however, that Rainsberger was receiving up‐\ndates by text from his sister Rebecca, who was at the hospital, \nand that Rainsberger had expressed concern about how he \nwould get to the hospital from the police station. The district \ncourt concluded that a reasonable jury could find that Benner \nintentionally misled the prosecutor and magistrate. \n The polygraph. Benner claimed in the aﬃdavit that the \nRainsberger children “stormed out” of the police station after \nhe asked Rainsberger and Robert to take a polygraph test and \n\fNo. 17‐2521 11 \n\nthat he did not hear from them again. According to the district \ncourt, a reasonable jury could agree with Rainsberger that \nBenner’s description of the Rainsbergers’ departure was a lie, \nas was his claim that he didn’t hear from them again. \n II. \n Before us, Benner insists that he is entitled to qualified im‐\nmunity even if all of the disputed facts are true. Qualified im‐\nmunity involves a two‐pronged inquiry: (1) whether the facts, \nread in favor of the non‐moving party, amount to a constitu‐\ntional violation; and (2) whether the constitutional right was \nclearly established at the time of the alleged violation. McCo‐\nmas v. Brickley, 673 F.3d 722, 725 (7th Cir. 2012). The oﬃcer \nwins if the answer to either question is “no.” Jacobs v. City of \nChicago, 215 F.3d 758, 766 (7th Cir. 2000). Courts often start \nwith the second question, because if the law was not clearly \nestablished, there is no need to tackle the (often harder) ques‐\ntion whether the challenged conduct violated the Constitu‐\ntion. See Pearson v. Callahan, 555 U.S. 223, 236–42 (2009). This \ncase requires us to confront both issues, however, so we begin \nby analyzing whether Benner’s alleged conduct violated \nRainsberger’s Fourth Amendment rights. \n A. \n An officer violates the Fourth Amendment if he intention‐\nally or recklessly includes false statements in a warrant appli‐\ncation and those false statements were material to a finding of \nprobable cause. Hart v. Mannina, 798 F.3d 578, 591 (7th Cir. \n2015). An officer similarly violates the Fourth Amendment if \nhe intentionally or recklessly withholds material information \nfrom a probable cause affidavit. Whitlock v. Brown, 596 F.3d \n406, 410–11 (7th Cir. 2010). We use a straightforward method \n\f12 No. 17‐2521 \n\nto determine whether the alleged lies or omissions are mate‐\nrial: “We eliminate the alleged false statements, incorporate \nany allegedly omitted facts, and then evaluate whether the re‐\nsulting ‘hypothetical’ affidavit would establish probable \ncause.” Betker v. Gomez, 692 F.3d 854, 862 (7th Cir. 2012). \n With the lies stripped and the omissions added, Benner’s \ncase for probable cause boils down to this: Ruth’s murderer \nmight have been someone she knew, because the attack was \nnot necessarily connected to a burglary. Some drawers had \nbeen opened and her purse and medication were missing; at \nthe same time, there was no sign of a forced entry, and Ruth’s \ncheckbook, credit cards, and some cash were still in the apart‐\nment. Rainsberger had a key to her apartment, and cell phone \nrecords did not rule out the possibility that he was in the vi‐\ncinity of her apartment complex when the attack happened. \nShortly before he found his mother and called 911, Rains‐\nberger stopped at a Kroger across the street from his mother’s \napartment to buy an iced tea. He walked in plain view \nthrough the Kroger parking lot carrying a piece of trash, \nwhich he threw away in a receptacle by a Redbox machine on \nhis way into the store. He correctly described Ruth’s injury as \na blow to the head, even though he had not removed the blan‐\nket to see the wound. In contrast, the first responder, who did \nremove the blanket, initially thought that Ruth had been shot. \nRainsberger and his two siblings would inherit about $33,000 \napiece if his mother died. When Benner brought the Rains‐\nberger children to the police station under false pretenses, \nRainsberger and his brother refused Benner’s request that \nthey take a polygraph test. A week later, they voluntarily gave \nfingerprints and submitted to a DNA buccal swab. \n\fNo. 17‐2521 13 \n\n As we have explained before, “probable cause is a \ncommon‐sense inquiry requiring only a probability of \ncriminal activity; it exists whenever an officer or a court has \nenough information to warrant a prudent person to believe \ncriminal conduct has occurred.” Whitlock, 596 F.3d at 411. It \ndoes not require proof of a crime; it is about “the degree of \nsuspicion that attaches to particular types of non‐criminal \nacts.” Illinois v. Gates, 462 U.S. 213, 243 n.13 (1983). \nImportantly, a probable cause inquiry does not take each fact \nin isolation; it depends on the totality of the circumstances. \nDistrict of Columbia v. Wesby, 138 S. Ct. 577, 588 (2018). \nAssessing the hypothetical affidavit therefore requires us to \ndetermine whether Rainsberger’s behavior was suspicious \nenough that a prudent person aware of the full picture \npainted in the hypothetical affidavit could believe that \nRainsberger murdered his mother. \n A prudent person could not draw that conclusion on these \nfacts. Many of them would be true of most children of aging \nparents: that Rainsberger had a key to her apartment, checked \non her frequently, and stood (along with his siblings) to in‐\nherit whatever she left behind. These unremarkable facts \nwould be reason to suspect Rainsberger only if other infor‐\nmation cast them in a suspicious light. Benner sought that \nlight with his theory that Ruth was murdered by someone she \nknew rather than a thief. Yet the evidence on that score was \nconflicting: while some valuables remained in the apartment, \nothers were missing. Benner also suggested that Rains‐\nberger’s refusal to take a polygraph test reflected his con‐\nsciousness of guilt. But that inference is weak, given that Ben‐\nner had lured the Rainsberger children to the station with a \nlie and met them with a hostile demand for a polygraph test \nwhen they arrived. And the fact that Rainsberger tossed a \n\f14 No. 17‐2521 \n\npiece of trash into a garbage can in broad daylight on his way \ninto Kroger is neither here nor there. Without what a jury \ncould reasonably consider to be a grossly misleading descrip‐\ntion of the surveillance video, this trip to a trash can certainly \ndoes not support the inference that Rainsberger disposed of \nthe murder weapon before going to Ruth’s apartment. \n Benner’s best argument for turning this package of facts \ninto grounds for probable cause is that Rainsberger correctly \ndescribed his mother as having been hit in the head even \nthough he had not looked under the blanket. But this fact can‐\nnot carry the weight Benner needs it to. Rainsberger’s state‐\nment was a reasonable inference from observable evidence; \nhe walked into his mother’s house, saw her lying on the floor \nand bleeding from her head, and concluded that someone had \nhit her over the head. The cause of her injury was not so diffi‐\ncult to discern that knowing it suggested inside knowledge. \nIndeed, the emergency personnel thought that the first re‐\nsponder’s competing theory—that Ruth had been shot—was \ncounterintuitive, given the lack of telltale blood splatter on the \nwalls or ceiling. \n The totality of these circumstances supports nothing more \nthan bare suspicion, and the Court has emphasized that prob‐\nable cause requires more than that. See Brinegar v. United \nStates, 338 U.S. 160, 175 (1949) (probable cause “mean[s] more \nthan bare suspicion”); Henry v. United States, 361 U.S. 98, 104 \n(1959) (“Under our system suspicion is not enough for an of‐\nficer to lay hands on a citizen.”); see also Ebert v. Gaetz, 610 F.3d \n404, 413 (7th Cir. 2010) (“The officers must have more than a \nbare suspicion that they have the right guy … .”); Sherouse v. \nRatchner, 573 F.3d 1055, 1062 (10th Cir. 2009) (“Where an of‐\n\fNo. 17‐2521 15 \n\nficer observes inherently innocuous behavior that has plausi‐\nble innocent explanations, it takes more than speculation or \nmere possibility to give rise to probable cause to arrest.”). If \nprobable cause exists here, then anyone who experiences the \ntragedy of discovering a murdered family member—and who \ncorrectly assesses the cause of the injury and recently threw \nsomething away in a public trash can—can be arrested for \nmurder. Probable cause is a low bar, but this evidence does \nnot clear it. \n B. \n Benner tries to bolster the case for probable cause with in‐\nculpatory facts that he did not include in the aﬃdavit. For ex‐\nample, he asserts that in his training and experience as a hom‐\nicide detective, an attacker who covers his victim’s head often \nhas a personal relationship with the victim. He also says that \nin his experience, family members are typically eager to take \npolygraph tests so that the oﬃcer can get to work on finding \nthe real culprit. According to Benner, this additional infor‐\nmation can make up the diﬀerence if we think that the incul‐\npatory evidence recited in the aﬃdavit falls short. \n Benner recognizes that we have never incorporated incul‐\npatory evidence into a hypothetical aﬃdavit in a civil suit like \nthis.4 But we have never expressly refused to do so either, and \n\n \n4 That said, he does stretch for some support from Knox v. Smith, 342 F.3d \n\n651 (2003), which arose in the distinct context of a parole violation. In \nKnox, the plaintiff alleged that his parole officer lacked reasonable suspi‐\ncion to believe that he had violated the conditions of his parole when she \nrequested a warrant for his arrest on that ground. Id. at 656. He also al‐\nleged that at least one of the facts in the parole violation report prepared \nby the defendant and her supervisor was a lie. Id. at 658. According to \nBenner, Knox supports his “beyond the four corners” approach because \n\f16 No. 17‐2521 \n\nhe argues that now is the time for us to embrace this approach. \nAfter all, he says, we go outside the four corners of the aﬃda‐\nvit to consider omitted exculpatory evidence, so why not do \nthe same for omitted inculpatory evidence? He emphasizes \nthat oﬃcers do not have an obligation to include every incul‐\npatory detail in a probable cause aﬃdavit and warns that if \nwe decline to consider omitted inculpatory facts, oﬃcers will \nfeel forced to recite every detail in an aﬃdavit to bolster any \nlater claim of qualified immunity. He maintains that this \nwould be ineﬃcient and burdensome, particularly when the \ntimeline is tight. And he contends that this rule might prompt \noﬃcers to forgo warrants altogether, because if they are sued \nfor making a warrantless arrest, they can defend by drawing \non all available facts—not merely those they chose to include \nin an aﬃdavit—to demonstrate that probable cause existed. \n Benner’s argument is misguided. It assumes that this suit \nis about whether Benner violated the Fourth Amendment’s \nprohibition on “unreasonable searches and seizures” by ar‐\nresting Rainsberger without probable cause. But that is not \nthe allegation here. Rainsberger has sued Benner for violating \nthe Fourth Amendment’s guarantee that “no Warrants shall \n\n\n \nwe relied on inculpatory information that was outside the parole violation \nreport in concluding that the officer was entitled to qualified immunity. \nBut the parole violation report in Knox was not the same thing as a proba‐\nble cause affidavit; it was a document that the officer and her supervisor \nprepared the day after the warrant had issued. Id. at 655. Indeed, there \nwas no affidavit in Knox that could have marked the boundaries of our \ninquiry, because the parole officer requested a warrant via a page sent to \nher supervisor. Id. And Knox contains no discussion of what the officer’s \nsupervisor knew when the officer requested the warrant, much less the \n“four corners” issue that Benner raises. \n\fNo. 17‐2521 17 \n\nissue, but upon probable cause, supported by Oath or affir‐\nmation … .” U.S. CONST. amend. IV. The Warrant Clause is \nnot merely a probable‐cause guarantee. It is a guarantee that \na warrant will not issue unless a neutral and disinterested \nmagistrate independently decides that probable cause exists. \nFranks v. Delaware, 438 U.S. 154, 164 (1978) (“The bulwark of \nFourth Amendment protection, of course, is the Warrant \nClause, requiring that, absent certain exceptions, police obtain \na warrant from a neutral and disinterested magistrate before \nembarking upon a search.”); Johnson v. United States, 333 U.S. \n10, 14 (1948) (“Its protection consists in requiring that [eviden‐\ntiary] inferences be drawn by a neutral and detached magis‐\ntrate instead of being judged by the officer engaged in the of‐\nten competitive enterprise of ferreting out crime.”). A magis‐\ntrate can assess only the information that she is given; there‐\nfore, in testing the validity of a warrant, we consider only ev‐\nidence that the magistrate had.5 And “[i]f an affidavit is the \nonly matter presented to the issuing magistrate … the war‐\nrant must stand or fall solely on the contents of the affidavit.” \nUnited States v. Roth, 391 F.2d 507, 509 (1967); see also United \nStates v. Orozco, 576 F.3d 745, 748 (7th Cir. 2009) (“When, as \nhere, an affidavit is the only evidence presented to a judge to \nsupport a search warrant, the ‘validity of the warrant rests \n\n\n \n5 For the sake of clarity, we emphasize that inculpatory evidence not in‐\n\ncluded in the affidavit may be admissible with respect to an issue other \nthan whether the warrant demonstrates probable cause. For example, it \nmight be evidence of whether an officer acted knowingly or recklessly \nwhen he prepared the affidavit. See, e.g., United States v. Williams, 718 F.3d \n644, 650 (7th Cir. 2013) (noting that the officers’ omission of additional in‐\nculpatory evidence provided “a reasonable basis to believe that the police \ndid not intend to mislead”). \n\f18 No. 17‐2521 \n\nsolely on the strength of the affidavit.’” (citation omitted)). Ex‐\ntrinsic evidence of guilt “cannot be used … to augment an \notherwise defective affidavit.” Roth, 391 F.2d at 509; see also \nUnited States v. Harris, 464 F.3d 733, 739 (7th Cir. 2006) (“Con‐\nsidering new information … that supported a finding of prob‐\nable cause was beyond the trial court’s analytical reach. Ra‐\nther, its consideration of new information omitted from the \nwarrant affidavit should have been limited to facts that did \nnot support a finding of probable cause.”). \n Benner argues that a different rule should apply in a civil \ncase to give the police officer greater protection when his in‐\ndividual liability is on the line. But the first prong of the qual‐\nified immunity analysis is not the one designed to specially \nprotect the officer—that comes at the second prong, which \nlimits the officer’s liability to violations of clearly established \nlaw. In the first inquiry, we analyze whether the facts before \nus “make out a violation of a constitutional right.” Pearson, \n555 U.S. at 232. And the Fourth Amendment is violated when \nthe magistrate’s probable‐cause determination is made based \non an affidavit that fails to establish probable cause, no matter \nwhat extra‐affidavit information the officer had. Roth, 391 \nF.2d at 509; see also Orozco, 576 F.3d at 748. Moreover, while \nwe have never addressed the issue that Benner raises, we \nhave held that other aspects of Franks apply equally in civil \nand criminal cases. See Perlman v. City of Chicago, 801 F.2d 262, \n264–65 (7th Cir. 1986) (holding that Franks’s requirement of a \n“substantial preliminary showing” that the officer deliber‐\nately misrepresented facts in a warrant affidavit applies in \ncivil as well as criminal actions). There is no reason to follow \na different course here. See id. (asserting that there is “no rea‐\nson to apply a standard different than that established by \nFranks to a civil action for damages based on an allegation that \n\fNo. 17‐2521 19 \n\na police officer deliberately misrepresented facts in a warrant \naffidavit”). \n It bears emphasis that there is no lack of symmetry be‐\ntween our willingness to go beyond the affidavit to consider \nevidence of innocence while staying strictly within it for evi‐\ndence of guilt. Both rules are designed to protect the integrity \nof the warrant process. Refusing to add inculpatory infor‐\nmation to a hypothetical affidavit enforces the Warrant \nClause’s requirement that warrants issue based on the judg‐\nment of a neutral magistrate rather than that of an interested \npolice officer. Adding exculpatory information to a hypothet‐\nical affidavit permits us to determine whether the officer dis‐\ntorted the magistrate’s judgment by suppressing material ev‐\nidence.6 An affidavit that misleads by lies or omission under‐\ncuts the magistrate’s ability to make an independent probable \ncause determination. See Franks, 438 U.S. at 165 (“Because it is \nthe magistrate who must determine independently whether \nthere is probable cause, it would be an unthinkable imposi‐\ntion upon his authority if a warrant affidavit, revealed after \nthe fact to contain a deliberately or recklessly false statement, \nwere to stand beyond impeachment.” (citations omitted)). It \nalso vitiates the Clause’s requirement that probable cause be \nsupported by “Oath or affirmation.” As the Court has ob‐\nserved, this language demands a “truthful” showing “in the \n\n \n6 The same concern drives our practice of excluding false information from \n\na hypothetical affidavit. An affidavit that contains material lies contami‐\nnates the magistrate’s assessment of probable cause. If probable cause ex‐\nists without the lies, then the warrant issued on the strength of the hon‐\nestly sworn facts. It therefore satisfies the Fourth Amendment’s require‐\nment that a warrant issue only “upon probable cause” demonstrated by \nfacts “supported by Oath or affirmation.” U.S. CONST. amend. IV. \n\f20 No. 17‐2521 \n\nsense that the information put forth is believed or appropri‐\nately accepted by the affiant as true.” Id. An officer who \nswears that presented facts support probable cause when he \nknows that suppressed facts destroy it does not act truthfully. \nHe therefore violates the Warrant Clause, which “surely takes \nthe affiant’s good faith as its premise.” Id. at 164. \n In sum, Benner’s argument that he could have obtained a \nvalid warrant if he had proceeded differently is beside the \npoint. A hypothetical affidavit is not designed to determine \nwhether an officer could have satisfied the Warrant Clause; it \nis to determine whether he actually satisfied it. And Benner \ndid not, at least if the disputed facts are resolved in Rains‐\nberger’s favor. \n III. \n We now turn to the second prong of the qualified immun‐\nity analysis: whether it would have been “clear to a reasonable \noﬃcial that his or her conduct was unlawful in the situation.” \nCarvajal v. Dominguez, 542 F.3d 561, 566 (7th Cir. 2008). Benner \nargues that even if he violated Rainsberger’s Fourth Amend‐\nment rights, the district court still wrongfully denied him \nqualified immunity. He concedes—as he must—that it vio‐\nlates clearly established law “to use deliberately falsified alle‐\ngations to demonstrate probable cause.” Franks, 438 U.S. at \n168. Even so, Benner says, he is entitled to qualified immunity \nif the facts of the hypothetical aﬃdavit demonstrate “arguable \nprobable cause”—in other words, if a competent oﬃcer faced \nwith the facts in the hypothetical aﬃdavit could reasonably if \nmistakenly believe that those facts were suﬃcient to establish \nprobable cause. Benner’s argument takes some untangling, \nbut its logic is this: (1) only material lies and omissions violate \nthe Fourth Amendment, so the materiality of those lies and \n\fNo. 17‐2521 21 \n\nomissions must be clearly established; (2) the court evaluates \nmateriality by determining whether a hypothetical aﬃdavit \nwould demonstrate probable cause; (3) if a competent oﬃcer \nreviewing the hypothetical aﬃdavit could reasonably but \nmistakenly conclude that it established probable cause, then \nthe materiality of the false or omitted information was not \n“clearly established.” \n We have never applied the test that Benner proposes. \nThere is a reason: it doesn’t make sense. To begin with, Ben‐\nner’s framing has the proverbial reasonable oﬃcer facing a \nsituation diﬀerent from the one Benner did. Qualified immun‐\nity depends on whether it would have been “clear to a reason‐\nable oﬃcer that his conduct was unlawful in the situation he \nconfronted.” Wesby, 138 S. Ct. at 590 (emphasis added) (citation \nomitted). In other words, the court puts a competent oﬃcer in \nthe defendant’s shoes, facing the same choice that the defend‐\nant did. Benner did not face a choice about whether the facts \nin the hypothetical aﬃdavit established probable cause. He \nfaced a choice about whether to make false or misleading \nstatements in the aﬃdavit. (He has also been faulted for ex‐\ncluding exculpatory evidence, but that presents diﬀerent is‐\nsues that we’ll get to below.) Thus, the relevant question is \nwhat a well‐trained oﬃcer would have thought about the law‐\nfulness of that action. What Benner is really arguing, then, is \nthat he is entitled to qualified immunity if a well‐trained of‐\nficer could “reasonably but mistakenly conclude” that it was \nlawful to include an incriminating lie in an aﬃdavit because \nthe lie wasn’t material to the probable cause determination. \nSee Anderson v. Creighton, 483 U.S. 635, 641 (1987). \n Of course, a competent oﬃcer would not even entertain \nthe question whether it was lawful for him to lie in a probable \n\f22 No. 17‐2521 \n\ncause aﬃdavit. The hypothetical oﬃcer in the qualified im‐\nmunity analysis is one who acts in good faith. That is what the \nstandard of “objective reasonableness” is designed to capture. \nSee Harlow v. Fitzgerald, 457 U.S. 800, 815–19 (1982); Malley v. \nBriggs, 475 U.S. 335, 345 (1986); cf. United States v. Leon, 468 \nU.S. 897, 922–23 (1984) (establishing the “good faith excep‐\ntion” to the exclusionary rule). Indeed, protecting oﬃcers \nwho act in objective good faith is the justification for qualified \nimmunity. Harlow, 457 U.S. at 815, 819 n.34 (explaining that \nqualified immunity applies to suits “arising from actions \nwithin the scope of an oﬃcial’s duties and in objective good \nfaith” (emphasis added) (internal quotation omitted)). It \nwould be flatly inconsistent with that justification to imagine \na competent oﬃcer considering the question whether a lie \nhelpful to demonstrating probable cause is so helpful that he \nshould not tell it. That is neither a reasonable question to ask \nnor a reasonable mistake to make. \n Nonetheless, Benner maintains that we have previously \nembraced his approach. He seizes on a sentence in Betker v. \nGomez, in which we asserted that “[a]n officer who knowingly \nor recklessly submitted an affidavit containing false state‐\nments may still get qualified immunity if he can establish that \nhe had an objectively reasonable basis for believing the facts \nin the affidavit were sufficient to establish probable cause.” \nSee 692 F.3d at 860. Taken out of context, this sentence super‐\nficially supports Benner’s position that he is entitled to quali‐\nfied immunity if the hypothetical affidavit establishes “argu‐\nable probable cause.” But his cherry‐picking distorts what we \nactually said. In the very next sentence we explained: “But \nqualified immunity does not extend where an officer know‐\ningly or recklessly made false statements and ‘no accurate in‐\nformation sufficient to constitute probable cause attended the \n\fNo. 17‐2521 23 \n\nfalse statements.’” Id. (quoting Lawson v. Veruchi, 637 F.3d 699, \n705 (7th Cir. 2011)). Our analysis then proceeded as we do \nhere: we constructed a hypothetical affidavit, determined \nwhether it established actual probable cause, and denied \nqualified immunity because “immunity does not extend \n‘[w]here the judicial finding of probable cause is based solely \non information the officer knew to be false or would have \nknown was false had he not recklessly disregarded the \ntruth.’” Id. (alteration in original) (quoting Olson v. Tyler, 771 \nF.2d 277, 282 (7th Cir. 1985)). We never asked, much less ana‐\nlyzed, whether the officer in Betker had made a reasonable \nmistake about the materiality of his lies. \n To summarize: if an officer knowingly or recklessly in‐\ncludes false information in an affidavit and that information \nis not material, he will not be liable in a § 1983 action because \nthe plaintiff will not be able to prove a constitutional viola‐\ntion. But if that information is material, the officer is not enti‐\ntled to qualified immunity. The unlawfulness of using delib‐\nerately falsified allegations to establish probable cause could \nnot be clearer. See, e.g., Lawson, 637 F.3d at 705 (“[I]t [i]s clearly \nestablished ‘that a warrant request violates the Fourth \nAmendment if the requesting officer knowingly, intention‐\nally, or with reckless disregard for the truth, makes false state‐\nments in requesting the warrant and the false statements were \nnecessary to the determination that a warrant should issue.’” \n(citation omitted)); Olson, 771 F.2d at 281 (“If an officer sub‐\nmitted an affidavit that contained statements he knew to be \nfalse or would have known were false had he not recklessly \ndisregarded the truth and no accurate information sufficient \nto constitute probable cause attended the false statements, not \nonly is his conduct the active cause of the illegal arrest, but he \n\f24 No. 17‐2521 \n\ncannot be said to have acted in an objectively reasonable man‐\nner.”). And the plaintiff need not show that the materiality of \nthe lie would have been clear to a competent officer. The qual‐\nified immunity analysis uses the perspective of an officer act‐\ning in good faith, and an officer acting in good faith would \nnot entertain that question. \n An officer sued for failing to include materially \nexculpatory facts in a probable cause affidavit is differently \nsituated. It violates clearly established law to “intentionally or \nrecklessly withhold material information from a warrant \napplication.” Whitlock, 596 F.3d at 408. But while a competent \nofficer would not ask whether the Fourth Amendment \npermits him to tell a particular lie, a competent officer \nwould—indeed, must—consider whether the Fourth \nAmendment obligates him to disclose particular evidence. \nBecause an officer acting in good faith could make a \nreasonable mistake about his disclosure obligation, the \nmateriality of omitted facts, unlike the materiality of false \nstatements, is properly part of the qualified‐immunity \nanalysis. We have repeatedly held, therefore, that an officer \nviolates the Fourth Amendment by omission only if “it would \nhave been clear to a reasonable officer that the omitted fact \nwas material to the probable‐cause determination.” See Leaver \nv. Shortess, 844 F.3d 665, 669 (7th Cir. 2016); see also Olson v. \nTyler, 825 F.2d 1116, 1121 (7th Cir. 1987) (“[O]nly where a \nreasonable officer can conclude that a withheld fact is \nirrelevant to probable cause should such an officer who \nwithholds a known (or recklessly disregarded) fact be \nprotected with qualified immunity.”). \n Whitlock provides an illustration. See 596 F.3d 406. There, \ncampers picked up apparently abandoned bags in an Indiana \n\fNo. 17‐2521 25 \n\nstate park, intending to turn them in to park authorities so \nthat the property could be returned to its rightful owner. Id. \nat 408–09. But they forgot for several hours, the bags were re‐\nported stolen, and the campers were arrested for criminal \nconversion. Id. at 409. They sued the officer who obtained the \nwarrant, alleging that he withheld a material fact by failing to \ninclude the campers’ innocent explanation for taking the bags \nin his probable cause affidavit. Id. at 410. We held that the of‐\nficer was entitled to qualified immunity. Because Indiana law \non criminal conversion was undeveloped, a reasonable officer \nwould not necessarily have known that the campers’ explana‐\ntion for taking the bags was material to the probable cause \ndetermination. Id. at 413. A well‐trained officer could make a \nreasonable mistake about whether a given fact would negate \nprobable cause. \n Here, Benner has not argued that it would have been un‐\nclear to a reasonable oﬃcer that any of the information that \nhe omitted was material to the probable cause determination. \nThus, we need not address whether he made any reasonable \nmistakes in that regard. \n * * * \n The district court correctly held that Benner is not entitled \nto qualified immunity, and its judgment is AFFIRMED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4358993/", "author_raw": "BARRETT, Circuit Judge"}]}	WOOD	HAMILTON	BARRETT	1		{"WOOD": ", Chief", "HAMILTON": ", Circuit", "BARRETT": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4581740/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: William Rainsberger v. Charles Benner\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-15\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________ \nNo. 17‐2521 \nWILLIAM RAINSBERGER, \n Plaintiff‐Appellee, \n v. \n\nCHARLES BENNER, \n Defendant‐Appellant. \n ____________________ \n\n Appeal from the United States District Court for the \n Southern District of Indiana, Indianapolis Division. \n No. 1:16‐cv‐00103‐WTL‐MJD — William T. Lawrence, Judge. \n ____________________ \n\n ARGUED JANUARY 4, 2018 — DECIDED JANUARY 15, 2019 \n ____________________ \n\n Before WOOD, Chief Judge, and HAMILTON and BARRETT, \nCircuit Judges. \n BARRETT, Circuit Judge. William Rainsberger was charged \nwith murdering his elderly mother. But the detective who \nbuilt the case against him, Charles Benner, may have been dis‐\nhonest. According to Rainsberger, Benner submitted a proba‐\nble cause aﬃdavit that was riddled with lies and undercut by \nthe omission of exculpatory evidence. Based on that aﬃdavit, \nRainsberger was arrested, charged, and imprisoned for two \n\f2 No. 17‐2521 \n\nmonths. When the prosecutor dismissed the case because of \nevidentiary problems, Rainsberger sued Benner under 42 \nU.S.C. § 1983 for violating his Fourth Amendment rights. Ben‐\nner moved for summary judgment, arguing that he was enti‐\ntled to qualified immunity. The district court denied his mo‐\ntion, and he now asks us to reverse the district court. \n We decline to do so. Benner concedes for purposes of this \nappeal that he knowingly or recklessly made false statements \nin the probable cause affidavit. He emphasizes, however, that \nknowingly or recklessly misleading the magistrate in a prob‐\nable cause affidavit—whether by omissions or outright lies—\nonly violates the Fourth Amendment if the omissions and lies \nwere material to probable cause. He claims that his weren’t, \nbut we disagree. Materiality depends on whether the affidavit \ndemonstrates probable cause when the lies are taken out and \nthe exculpatory evidence is added in. And when that is done \nhere, Benner’s affidavit fails to establish probable cause to be‐\nlieve that Rainsberger murdered his mother. Because it is \nclearly established that it violates the Fourth Amendment “to \nuse deliberately falsified allegations to demonstrate probable \ncause,” Franks v. Delaware, 438 U.S. 154, 168 (1978), Benner is \nnot entitled to qualified immunity. \n I. \n We start with an issue that affects both appellate jurisdic‐\ntion and our rendition of the facts. This is an appeal from the \ndistrict court’s order denying Benner’s motion for summary \njudgment on the ground of qualified immunity. In the normal \ncourse, we lack jurisdiction to review an order denying sum‐\nmary judgment because it is not a “final decision” under 28 \nU.S.C. § 1291. See Gutierrez v. Kermon, 722 F.3d 1003, 1009 (7th \n\fNo. 17‐2521 3 \n\nCir. 2013). But because “qualified immunity is in part an enti‐\ntlement not to be forced to litigate the consequences of official \nconduct,” Mitchell v. Forsyth, 472 U.S. 511, 527 (1985), the de‐\nnial of qualified immunity is an appealable interlocutory de‐\ncision—at least insofar as it turns exclusively on a question of \nlaw, id. at 530. That qualification is significant: because our \nauthority extends only to questions of law, an officer can ob‐\ntain interlocutory review only if he refrains from contesting \nany fact that a reasonable jury could resolve against him. See \nJones v. Clark, 630 F.3d 677, 680 (7th Cir.2011) (“In a collateral‐\norder appeal …, where the defendants say that they accept \nthe plaintiff’s version of the facts, we will take them at their \nword and consider their legal arguments in that light. If, how‐\never, we detect a back‐door effort to contest the facts, we will \nreject it and dismiss the appeal for want of jurisdiction.”). \nBenner does so here. For purposes of this appeal, he accepts \nas true Rainsberger’s version of all facts that are in material \ndispute—most significantly, that he knowingly or recklessly \nmade false or misleading statements in the affidavit that se‐\ncured Rainsberger’s arrest. In what follows, then, we recount \nthe facts that we must take as true, drawing all inferences in \nRainsberger’s favor. The legal question that we must decide \nis whether Benner is entitled to qualified immunity on these \nfacts. \n A. \n Rainsberger was the primary caregiver for his mother, \nRuth, who was 88 years old and suﬀering from dementia.1 \nRuth lived alone in an apartment in a high‐crime area; Rains‐\nberger lived nearby. He checked on her daily, did her grocery \n \n1 We will refer to the other members of the Rainsberger family by their \n\nfirst names for the sake of clarity. \n\f4 No. 17‐2521 \n\nshopping, and handled her finances. His siblings Robert and \nRebecca also helped care for Ruth, although they saw her less \nfrequently. \n At approximately 3:30 p.m. on November 19, 2013, Rains‐\nberger went to Ruth’s apartment and found the door un‐\nlocked. When he entered, he discovered Ruth lying facedown \non the floor with a blanket covering her shoulders and head. \nShe was breathing, but with diﬃculty. There was a large circle \nof dried blood on the blanket and a pool of congealed blood \non the floor. Rainsberger did not remove the blanket because \nhe believed that it was acting as a bandage, and he feared that \nthe bleeding would increase if he pulled it oﬀ. \n Rainsberger called 911 from his mother’s landline at 3:37 \np.m. He told the operator that someone had “bashed [his \nmother’s] head in.” He then called his brother Robert and told \nhim to come to the apartment immediately. Rainsberger \nwaited outside for the ambulance because Ruth’s apartment \nwas diﬃcult to locate within the complex. \n When paramedic Carl Wooldridge arrived, Rainsberger \ntold him that someone had “caved his mother’s head in.” \nWooldridge observed that the blanket covering Ruth’s head \nappeared to be stuck to a wound. He noticed “somewhat of a \nhole in [the blanket] where the wound was,” and when he \npeeled the blanket oﬀ, “there was a mark … on her forehead \nthat [he] believed to be an entrance wound.” Based on those \nobservations, Wooldridge told fire and ambulance personnel \nthat Ruth had been shot—a conclusion that the emergency \npersonnel thought odd, given the lack of blood splatter on the \nwalls or ceiling. As it turned out, Rainsberger, not \nWooldridge, had it right: Ruth died of blunt force trauma to \nthe head. Wooldridge later told Charles Benner, the detective \n\fNo. 17‐2521 5 \n\ninvestigating the murder, that he found it suspicious that \nRainsberger said that his mother’s head had been caved in \neven though he had not removed the blanket to look at her \ninjuries. \n Benner came to Ruth’s apartment roughly 40 minutes after \nRainsberger placed the 911 call. There was no sign of forced \nentry, and while some dresser drawers in Ruth’s bedroom \nwere open, their contents were undisturbed. Ruth’s check‐\nbook, credit cards, and some cash were found in the apart‐\nment. Her purse and prescription medication were not. \n Rainsberger and Robert, who had since arrived, voluntar‐\nily went to police headquarters to give statements to Benner. \nRainsberger said that he had last seen his mother the previous \nevening. After visiting her, he drove to Plainfield, which is \nroughly 25 miles away, to spend the evening with his wife. \nHe returned to his house the next morning, where he stayed \nuntil around 3:30 p.m. He then left home to check on his \nmother, stopping at Kroger on the way to buy an iced tea. He \ntold Benner that Ruth’s apartment was unlocked when he ar‐\nrived and that he found her lying wounded on the floor. He \nchecked the apartment for intruders and, finding none, called \n911. Rainsberger informed Benner that his mother was not \nphysically able to stand up and see through the peephole, so \nshe typically had to open the door to see who was there. And \nRainsberger said that Ruth had $80,000 to $100,000 in savings \nthat would be distributed to her three children upon her \ndeath. \n Robert told Benner that he had not seen Ruth for a few \ndays. He said that he had been at Rainsberger’s house when \nRainsberger called to tell him to come to Ruth’s apartment im‐\n\f6 No. 17‐2521 \n\nmediately. He explained that he had been living with Rains‐\nberger for a few months because he had lost his own home to \nforeclosure. \n Benner talked to Rainsberger’s sister Rebecca the next day. \nRebecca told Benner that she typically checked on her mother \nonce a week and had last seen her the day before the attack. \nSometime after his call with Rebecca, Benner asked the three \nsiblings to come to the station to review the results of Ruth’s \nautopsy. When they got there, however, Benner did not talk \nabout the autopsy. Instead, he accused Rainsberger and Rob‐\nert of murdering their mother for her money and asked them \nto take a polygraph. Upset at the accusation and at being \nlured to the station under false pretenses, they refused and \nleft. Roughly a week later, after obtaining counsel to represent \nthem, both Rainsberger and Robert agreed to go to the station \nto give fingerprints and submit to a DNA buccal swab. \n Benner did not wait for the results of the DNA tests before \nseeking to have Rainsberger arrested and charged. In early \nDecember 2013, Benner submitted a probable cause aﬃdavit \nto the Marion County prosecutor. But the prosecutor declined \nto pursue it, and Benner went back to find more evidence. \n Benner hoped that the results of the DNA tests would \nmake his case against Rainsberger. In March 2014, he noted in \nan email to a colleague that “[t]he victim’s sons are the sus‐\npects in this case and I am waiting for DNA results before any \narrest may be made.” But when the laboratory report came \nout in April 2014, it did not implicate Rainsberger—the DNA \nof two males was found on Ruth’s blanket and clothing, but \nneither Rainsberger nor Robert was a match. Benner took that \nresult in stride. Although the DNA test did not incriminate \n\fNo. 17‐2521 7 \n\nRainsberger, Benner did not think that it exonerated him ei‐\nther. (The same, of course, was true of Robert, but Benner was \nfocused on Rainsberger.) Benner reasoned that the unknown \nmale DNA on Ruth’s blanket and clothing might have been \nleft by emergency personnel rather than the killer. \n In May 2014, Benner went to the prosecutor with a second \nprobable cause aﬃdavit that was almost identical to the first. \nThe second aﬃdavit did not disclose the results of the DNA \ntest. But it added two pieces of evidence that Benner had ac‐\nquired since he presented the prosecutor with the first aﬃda‐\nvit. First, Benner used cell phone records to suggest that \nRainsberger had called Robert from Ruth’s apartment at 2:40 \np.m.—hours after Ruth was attacked and a little more than an \nhour before Rainsberger called 911. Second, he stated that cell \nphone tower location data could not place Rainsberger out‐\nside the area of his mother’s apartment during the relevant \nperiod. After receiving the second probable cause aﬃdavit, \nthe prosecutor went to Marion County Court and obtained a \nwarrant for Rainsberger’s arrest. Rainsberger was charged \nwith his mother’s murder and spent two months in jail before \nhe was released on bail. The prosecutor dismissed the case a \nyear later because of evidentiary problems. \n B. \n After the charges were dropped, Rainsberger sued Benner \nunder 42 U.S.C. § 1983, alleging that Benner had violated his \nFourth Amendment rights. Benner moved for summary judg‐\nment on the basis of qualified immunity, but the district court \ndenied the motion. It decided that a reasonable jury could find \nthat Benner knowingly or with reckless disregard for the truth \nmade false or misleading statements in the aﬃdavit. Probable \ncause did not exist without the false or misleading statements, \n\f8 No. 17‐2521 \n\nthe district court said, and because an oﬃcer who submits a \nmaterially misleading probable cause aﬃdavit violates \nclearly established Fourth Amendment law, it denied Benner \nqualified immunity. The district court’s order turned on the \nfollowing omissions and alleged lies.2 \n The phone records. The most damning addition to the sec‐\nond probable cause aﬃdavit was the suggestion that Rains‐\nberger called Robert’s cell phone from Ruth’s landline at 2:40 \np.m. on November 19. This placed Rainsberger at Ruth’s \napartment after she was injured and almost an hour before he \ncalled 911 for help. But the time stamp was inaccurate—and \nfor purposes of this appeal, we must assume that Benner \nknew it. A phone expert at the police department had ana‐\nlyzed the records and told Benner that the call had been \nrouted through a cell tower in Chicago, where it was one hour \nearlier. Thus, despite the 2:40 p.m. time stamp, the call had \nbeen placed at 3:40 p.m. Indianapolis time. It was the call that \nRainsberger had made to Robert just after he found Ruth and \ncalled 911. Benner chose to use the inaccurate and incriminat‐\ning time in his aﬃdavit. \n The Kroger video. Rainsberger had stopped at Kroger to buy \nan iced tea before going to Ruth’s apartment on the day of the \n\n \n2 Rainsberger complains about omissions in addition to those we detail \n\nhere. For example, he faults Benner for failing to include the results of the \nDNA test, the fact that Ruth lived in a high‐crime area, and the fact that \nshe would often open the door to strangers because she couldn’t see \nthrough the peephole. The district court chose not to determine whether \nthis information was material because it found probable cause lacking \neven without it. Because we agree that the hypothetical affidavit fails to \nestablish probable cause even without this evidence, we take the same ap‐\nproach as the district court. \n\fNo. 17‐2521 9 \n\nmurder. In the probable cause aﬃdavit, Benner described sur‐\nveillance video from Kroger that showed Rainsberger making \na trip to a trash can. According to Benner, Rainsberger “ap‐\npeared to pull out a straight object from his person which he \nplaced in the garbage can.” But the district court observed that \nnothing on the video shows Rainsberger “‘pulling’ the object \nfrom anywhere.” Benner also claimed that “[a]s [Rainsberger] \nplaced the object in the trash he appeared to look around for \ncameras.” But as the district court said, a reasonable jury \ncould find that Benner deliberately mischaracterized Rains‐\nberger’s behavior, which does not appear furtive on the video. \nAnd after watching the video ourselves, we agree with Rains‐\nberger that a reasonable jury could find that Benner intention‐\nally misled the prosecutor and magistrate in yet another re‐\nspect: by describing Rainsberger’s trash as a “straight object.” \nThat phrase was obviously designed to imply that Rains‐\nberger disposed of the murder weapon, but the object that \nRainsberger threw away looks far more like a soda can than a \n“straight object.”3 Viewed in Rainsberger’s favor, the video \ndepicts him carrying a small nondescript piece of trash \nthrough a parking lot and throwing it away near the entrance \nto the grocery store—in broad daylight and while other pa‐\ntrons are walking by. \n The evidence of burglary. Benner believed that Ruth’s at‐\ntacker was someone she knew rather than a thief. Consistent \nwith that theory, Benner swore in the aﬃdavit that nothing \n\n \n3 The district court did not address the shape of the trash, and its hypo‐\n\nthetical affidavit left intact Benner’s statement that “Rainsberger placed \nwhat appeared to be a straight object in the garbage can.” After viewing \nthe video in the light most favorable to Rainsberger, we refer to the waste \nsimply as “trash” in evaluating the affidavit. \n\f10 No. 17‐2521 \n\nhad been taken from the apartment. He noted that there was \nno sign of forced entry; that cash, a checkbook, and credit \ncards were still in the apartment; and that things were undis‐\nturbed apart from a few open drawers. But the district court \nconcluded that a jury could find that Benner intentionally \nmisled the prosecutor and magistrate in two respects. First, he \nfailed to tell them that Ruth’s purse and prescription medica‐\ntion were missing. Second, he stated that a lockbox containing \nsavings bonds was untouched and in plain view, even though \nthe lockbox was neither in plain view nor a repository of sav‐\nings bonds. \n Rainsberger’s concern for his mother. Benner described \nRainsberger as lacking concern for his mother. He stated that \nafter Rainsberger called 911, he “went outside to wait for the \nambulance” and “left his mother unattended until the police \narrived.” Benner conspicuously omitted Rainsberger’s expla‐\nnation for doing so—that he wanted to direct the ambulance \nto Ruth’s apartment, which was hard to find. And continuing \nwith this “callous son” theme, Benner asserted that when they \nwere questioned on the day of the attack, “[a]t no time did \nRobert or his brother, Rainsberger, ever ask me how their \nmom was doing or if they could get to the hospital to see her.” \nBenner knew, however, that Rainsberger was receiving up‐\ndates by text from his sister Rebecca, who was at the hospital, \nand that Rainsberger had expressed concern about how he \nwould get to the hospital from the police station. The district \ncourt concluded that a reasonable jury could find that Benner \nintentionally misled the prosecutor and magistrate. \n The polygraph. Benner claimed in the aﬃdavit that the \nRainsberger children “stormed out” of the police station after \nhe asked Rainsberger and Robert to take a polygraph test and \n\fNo. 17‐2521 11 \n\nthat he did not hear from them again. According to the district \ncourt, a reasonable jury could agree with Rainsberger that \nBenner’s description of the Rainsbergers’ departure was a lie, \nas was his claim that he didn’t hear from them again. \n II. \n Before us, Benner insists that he is entitled to qualified im‐\nmunity even if all of the disputed facts are true. Qualified im‐\nmunity involves a two‐pronged inquiry: (1) whether the facts, \nread in favor of the non‐moving party, amount to a constitu‐\ntional violation; and (2) whether the constitutional right was \nclearly established at the time of the alleged violation. McCo‐\nmas v. Brickley, 673 F.3d 722, 725 (7th Cir. 2012). The oﬃcer \nwins if the answer to either question is “no.” Jacobs v. City of \nChicago, 215 F.3d 758, 766 (7th Cir. 2000). Courts often start \nwith the second question, because if the law was not clearly \nestablished, there is no need to tackle the (often harder) ques‐\ntion whether the challenged conduct violated the Constitu‐\ntion. See Pearson v. Callahan, 555 U.S. 223, 236–42 (2009). This \ncase requires us to confront both issues, however, so we begin \nby analyzing whether Benner’s alleged conduct violated \nRainsberger’s Fourth Amendment rights. \n A. \n An officer violates the Fourth Amendment if he intention‐\nally or recklessly includes false statements in a warrant appli‐\ncation and those false statements were material to a finding of \nprobable cause. Hart v. Mannina, 798 F.3d 578, 591 (7th Cir. \n2015). An officer similarly violates the Fourth Amendment if \nhe intentionally or recklessly withholds material information \nfrom a probable cause affidavit. Whitlock v. Brown, 596 F.3d \n406, 410–11 (7th Cir. 2010). We use a straightforward method \n\f12 No. 17‐2521 \n\nto determine whether the alleged lies or omissions are mate‐\nrial: “We eliminate the alleged false statements, incorporate \nany allegedly omitted facts, and then evaluate whether the re‐\nsulting ‘hypothetical’ affidavit would establish probable \ncause.” Betker v. Gomez, 692 F.3d 854, 862 (7th Cir. 2012). \n With the lies stripped and the omissions added, Benner’s \ncase for probable cause boils down to this: Ruth’s murderer \nmight have been someone she knew, because the attack was \nnot necessarily connected to a burglary. Some drawers had \nbeen opened and her purse and medication were missing; at \nthe same time, there was no sign of a forced entry, and Ruth’s \ncheckbook, credit cards, and some cash were still in the apart‐\nment. Rainsberger had a key to her apartment, and cell phone \nrecords did not rule out the possibility that he was in the vi‐\ncinity of her apartment complex when the attack happened. \nShortly before he found his mother and called 911, Rains‐\nberger stopped at a Kroger across the street from his mother’s \napartment to buy an iced tea. He walked in plain view \nthrough the Kroger parking lot carrying a piece of trash, \nwhich he threw away in a receptacle by a Redbox machine on \nhis way into the store. He correctly described Ruth’s injury as \na blow to the head, even though he had not removed the blan‐\nket to see the wound. In contrast, the first responder, who did \nremove the blanket, initially thought that Ruth had been shot. \nRainsberger and his two siblings would inherit about $33,000 \napiece if his mother died. When Benner brought the Rains‐\nberger children to the police station under false pretenses, \nRainsberger and his brother refused Benner’s request that \nthey take a polygraph test. A week later, they voluntarily gave \nfingerprints and submitted to a DNA buccal swab. \n\fNo. 17‐2521 13 \n\n As we have explained before, “probable cause is a \ncommon‐sense inquiry requiring only a probability of \ncriminal activity; it exists whenever an officer or a court has \nenough information to warrant a prudent person to believe \ncriminal conduct has occurred.” Whitlock, 596 F.3d at 411. It \ndoes not require proof of a crime; it is about “the degree of \nsuspicion that attaches to particular types of non‐criminal \nacts.” Illinois v. Gates, 462 U.S. 213, 243 n.13 (1983). \nImportantly, a probable cause inquiry does not take each fact \nin isolation; it depends on the totality of the circumstances. \nDistrict of Columbia v. Wesby, 138 S. Ct. 577, 588 (2018). \nAssessing the hypothetical affidavit therefore requires us to \ndetermine whether Rainsberger’s behavior was suspicious \nenough that a prudent person aware of the full picture \npainted in the hypothetical affidavit could believe that \nRainsberger murdered his mother. \n A prudent person could not draw that conclusion on these \nfacts. Many of them would be true of most children of aging \nparents: that Rainsberger had a key to her apartment, checked \non her frequently, and stood (along with his siblings) to in‐\nherit whatever she left behind. These unremarkable facts \nwould be reason to suspect Rainsberger only if other infor‐\nmation cast them in a suspicious light. Benner sought that \nlight with his theory that Ruth was murdered by someone she \nknew rather than a thief. Yet the evidence on that score was \nconflicting: while some valuables remained in the apartment, \nothers were missing. Benner also suggested that Rains‐\nberger’s refusal to take a polygraph test reflected his con‐\nsciousness of guilt. But that inference is weak, given that Ben‐\nner had lured the Rainsberger children to the station with a \nlie and met them with a hostile demand for a polygraph test \nwhen they arrived. And the fact that Rainsberger tossed a \n\f14 No. 17‐2521 \n\npiece of trash into a garbage can in broad daylight on his way \ninto Kroger is neither here nor there. Without what a jury \ncould reasonably consider to be a grossly misleading descrip‐\ntion of the surveillance video, this trip to a trash can certainly \ndoes not support the inference that Rainsberger disposed of \nthe murder weapon before going to Ruth’s apartment. \n Benner’s best argument for turning this package of facts \ninto grounds for probable cause is that Rainsberger correctly \ndescribed his mother as having been hit in the head even \nthough he had not looked under the blanket. But this fact can‐\nnot carry the weight Benner needs it to. Rainsberger’s state‐\nment was a reasonable inference from observable evidence; \nhe walked into his mother’s house, saw her lying on the floor \nand bleeding from her head, and concluded that someone had \nhit her over the head. The cause of her injury was not so diffi‐\ncult to discern that knowing it suggested inside knowledge. \nIndeed, the emergency personnel thought that the first re‐\nsponder’s competing theory—that Ruth had been shot—was \ncounterintuitive, given the lack of telltale blood splatter on the \nwalls or ceiling. \n The totality of these circumstances supports nothing more \nthan bare suspicion, and the Court has emphasized that prob‐\nable cause requires more than that. See Brinegar v. United \nStates, 338 U.S. 160, 175 (1949) (probable cause “mean[s] more \nthan bare suspicion”); Henry v. United States, 361 U.S. 98, 104 \n(1959) (“Under our system suspicion is not enough for an of‐\nficer to lay hands on a citizen.”); see also Ebert v. Gaetz, 610 F.3d \n404, 413 (7th Cir. 2010) (“The officers must have more than a \nbare suspicion that they have the right guy … .”); Sherouse v. \nRatchner, 573 F.3d 1055, 1062 (10th Cir. 2009) (“Where an of‐\n\fNo. 17‐2521 15 \n\nficer observes inherently innocuous behavior that has plausi‐\nble innocent explanations, it takes more than speculation or \nmere possibility to give rise to probable cause to arrest.”). If \nprobable cause exists here, then anyone who experiences the \ntragedy of discovering a murdered family member—and who \ncorrectly assesses the cause of the injury and recently threw \nsomething away in a public trash can—can be arrested for \nmurder. Probable cause is a low bar, but this evidence does \nnot clear it. \n B. \n Benner tries to bolster the case for probable cause with in‐\nculpatory facts that he did not include in the aﬃdavit. For ex‐\nample, he asserts that in his training and experience as a hom‐\nicide detective, an attacker who covers his victim’s head often \nhas a personal relationship with the victim. He also says that \nin his experience, family members are typically eager to take \npolygraph tests so that the oﬃcer can get to work on finding \nthe real culprit. According to Benner, this additional infor‐\nmation can make up the diﬀerence if we think that the incul‐\npatory evidence recited in the aﬃdavit falls short. \n Benner recognizes that we have never incorporated incul‐\npatory evidence into a hypothetical aﬃdavit in a civil suit like \nthis.4 But we have never expressly refused to do so either, and \n\n \n4 That said, he does stretch for some support from Knox v. Smith, 342 F.3d \n\n651 (2003), which arose in the distinct context of a parole violation. In \nKnox, the plaintiff alleged that his parole officer lacked reasonable suspi‐\ncion to believe that he had violated the conditions of his parole when she \nrequested a warrant for his arrest on that ground. Id. at 656. He also al‐\nleged that at least one of the facts in the parole violation report prepared \nby the defendant and her supervisor was a lie. Id. at 658. According to \nBenner, Knox supports his “beyond the four corners” approach because \n\f16 No. 17‐2521 \n\nhe argues that now is the time for us to embrace this approach. \nAfter all, he says, we go outside the four corners of the aﬃda‐\nvit to consider omitted exculpatory evidence, so why not do \nthe same for omitted inculpatory evidence? He emphasizes \nthat oﬃcers do not have an obligation to include every incul‐\npatory detail in a probable cause aﬃdavit and warns that if \nwe decline to consider omitted inculpatory facts, oﬃcers will \nfeel forced to recite every detail in an aﬃdavit to bolster any \nlater claim of qualified immunity. He maintains that this \nwould be ineﬃcient and burdensome, particularly when the \ntimeline is tight. And he contends that this rule might prompt \noﬃcers to forgo warrants altogether, because if they are sued \nfor making a warrantless arrest, they can defend by drawing \non all available facts—not merely those they chose to include \nin an aﬃdavit—to demonstrate that probable cause existed. \n Benner’s argument is misguided. It assumes that this suit \nis about whether Benner violated the Fourth Amendment’s \nprohibition on “unreasonable searches and seizures” by ar‐\nresting Rainsberger without probable cause. But that is not \nthe allegation here. Rainsberger has sued Benner for violating \nthe Fourth Amendment’s guarantee that “no Warrants shall \n\n\n \nwe relied on inculpatory information that was outside the parole violation \nreport in concluding that the officer was entitled to qualified immunity. \nBut the parole violation report in Knox was not the same thing as a proba‐\nble cause affidavit; it was a document that the officer and her supervisor \nprepared the day after the warrant had issued. Id. at 655. Indeed, there \nwas no affidavit in Knox that could have marked the boundaries of our \ninquiry, because the parole officer requested a warrant via a page sent to \nher supervisor. Id. And Knox contains no discussion of what the officer’s \nsupervisor knew when the officer requested the warrant, much less the \n“four corners” issue that Benner raises. \n\fNo. 17‐2521 17 \n\nissue, but upon probable cause, supported by Oath or affir‐\nmation … .” U.S. CONST. amend. IV. The Warrant Clause is \nnot merely a probable‐cause guarantee. It is a guarantee that \na warrant will not issue unless a neutral and disinterested \nmagistrate independently decides that probable cause exists. \nFranks v. Delaware, 438 U.S. 154, 164 (1978) (“The bulwark of \nFourth Amendment protection, of course, is the Warrant \nClause, requiring that, absent certain exceptions, police obtain \na warrant from a neutral and disinterested magistrate before \nembarking upon a search.”); Johnson v. United States, 333 U.S. \n10, 14 (1948) (“Its protection consists in requiring that [eviden‐\ntiary] inferences be drawn by a neutral and detached magis‐\ntrate instead of being judged by the officer engaged in the of‐\nten competitive enterprise of ferreting out crime.”). A magis‐\ntrate can assess only the information that she is given; there‐\nfore, in testing the validity of a warrant, we consider only ev‐\nidence that the magistrate had.5 And “[i]f an affidavit is the \nonly matter presented to the issuing magistrate … the war‐\nrant must stand or fall solely on the contents of the affidavit.” \nUnited States v. Roth, 391 F.2d 507, 509 (1967); see also United \nStates v. Orozco, 576 F.3d 745, 748 (7th Cir. 2009) (“When, as \nhere, an affidavit is the only evidence presented to a judge to \nsupport a search warrant, the ‘validity of the warrant rests \n\n\n \n5 For the sake of clarity, we emphasize that inculpatory evidence not in‐\n\ncluded in the affidavit may be admissible with respect to an issue other \nthan whether the warrant demonstrates probable cause. For example, it \nmight be evidence of whether an officer acted knowingly or recklessly \nwhen he prepared the affidavit. See, e.g., United States v. Williams, 718 F.3d \n644, 650 (7th Cir. 2013) (noting that the officers’ omission of additional in‐\nculpatory evidence provided “a reasonable basis to believe that the police \ndid not intend to mislead”). \n\f18 No. 17‐2521 \n\nsolely on the strength of the affidavit.’” (citation omitted)). Ex‐\ntrinsic evidence of guilt “cannot be used … to augment an \notherwise defective affidavit.” Roth, 391 F.2d at 509; see also \nUnited States v. Harris, 464 F.3d 733, 739 (7th Cir. 2006) (“Con‐\nsidering new information … that supported a finding of prob‐\nable cause was beyond the trial court’s analytical reach. Ra‐\nther, its consideration of new information omitted from the \nwarrant affidavit should have been limited to facts that did \nnot support a finding of probable cause.”). \n Benner argues that a different rule should apply in a civil \ncase to give the police officer greater protection when his in‐\ndividual liability is on the line. But the first prong of the qual‐\nified immunity analysis is not the one designed to specially \nprotect the officer—that comes at the second prong, which \nlimits the officer’s liability to violations of clearly established \nlaw. In the first inquiry, we analyze whether the facts before \nus “make out a violation of a constitutional right.” Pearson, \n555 U.S. at 232. And the Fourth Amendment is violated when \nthe magistrate’s probable‐cause determination is made based \non an affidavit that fails to establish probable cause, no matter \nwhat extra‐affidavit information the officer had. Roth, 391 \nF.2d at 509; see also Orozco, 576 F.3d at 748. Moreover, while \nwe have never addressed the issue that Benner raises, we \nhave held that other aspects of Franks apply equally in civil \nand criminal cases. See Perlman v. City of Chicago, 801 F.2d 262, \n264–65 (7th Cir. 1986) (holding that Franks’s requirement of a \n“substantial preliminary showing” that the officer deliber‐\nately misrepresented facts in a warrant affidavit applies in \ncivil as well as criminal actions). There is no reason to follow \na different course here. See id. (asserting that there is “no rea‐\nson to apply a standard different than that established by \nFranks to a civil action for damages based on an allegation that \n\fNo. 17‐2521 19 \n\na police officer deliberately misrepresented facts in a warrant \naffidavit”). \n It bears emphasis that there is no lack of symmetry be‐\ntween our willingness to go beyond the affidavit to consider \nevidence of innocence while staying strictly within it for evi‐\ndence of guilt. Both rules are designed to protect the integrity \nof the warrant process. Refusing to add inculpatory infor‐\nmation to a hypothetical affidavit enforces the Warrant \nClause’s requirement that warrants issue based on the judg‐\nment of a neutral magistrate rather than that of an interested \npolice officer. Adding exculpatory information to a hypothet‐\nical affidavit permits us to determine whether the officer dis‐\ntorted the magistrate’s judgment by suppressing material ev‐\nidence.6 An affidavit that misleads by lies or omission under‐\ncuts the magistrate’s ability to make an independent probable \ncause determination. See Franks, 438 U.S. at 165 (“Because it is \nthe magistrate who must determine independently whether \nthere is probable cause, it would be an unthinkable imposi‐\ntion upon his authority if a warrant affidavit, revealed after \nthe fact to contain a deliberately or recklessly false statement, \nwere to stand beyond impeachment.” (citations omitted)). It \nalso vitiates the Clause’s requirement that probable cause be \nsupported by “Oath or affirmation.” As the Court has ob‐\nserved, this language demands a “truthful” showing “in the \n\n \n6 The same concern drives our practice of excluding false information from \n\na hypothetical affidavit. An affidavit that contains material lies contami‐\nnates the magistrate’s assessment of probable cause. If probable cause ex‐\nists without the lies, then the warrant issued on the strength of the hon‐\nestly sworn facts. It therefore satisfies the Fourth Amendment’s require‐\nment that a warrant issue only “upon probable cause” demonstrated by \nfacts “supported by Oath or affirmation.” U.S. CONST. amend. IV. \n\f20 No. 17‐2521 \n\nsense that the information put forth is believed or appropri‐\nately accepted by the affiant as true.” Id. An officer who \nswears that presented facts support probable cause when he \nknows that suppressed facts destroy it does not act truthfully. \nHe therefore violates the Warrant Clause, which “surely takes \nthe affiant’s good faith as its premise.” Id. at 164. \n In sum, Benner’s argument that he could have obtained a \nvalid warrant if he had proceeded differently is beside the \npoint. A hypothetical affidavit is not designed to determine \nwhether an officer could have satisfied the Warrant Clause; it \nis to determine whether he actually satisfied it. And Benner \ndid not, at least if the disputed facts are resolved in Rains‐\nberger’s favor. \n III. \n We now turn to the second prong of the qualified immun‐\nity analysis: whether it would have been “clear to a reasonable \noﬃcial that his or her conduct was unlawful in the situation.” \nCarvajal v. Dominguez, 542 F.3d 561, 566 (7th Cir. 2008). Benner \nargues that even if he violated Rainsberger’s Fourth Amend‐\nment rights, the district court still wrongfully denied him \nqualified immunity. He concedes—as he must—that it vio‐\nlates clearly established law “to use deliberately falsified alle‐\ngations to demonstrate probable cause.” Franks, 438 U.S. at \n168. Even so, Benner says, he is entitled to qualified immunity \nif the facts of the hypothetical aﬃdavit demonstrate “arguable \nprobable cause”—in other words, if a competent oﬃcer faced \nwith the facts in the hypothetical aﬃdavit could reasonably if \nmistakenly believe that those facts were suﬃcient to establish \nprobable cause. Benner’s argument takes some untangling, \nbut its logic is this: (1) only material lies and omissions violate \nthe Fourth Amendment, so the materiality of those lies and \n\fNo. 17‐2521 21 \n\nomissions must be clearly established; (2) the court evaluates \nmateriality by determining whether a hypothetical aﬃdavit \nwould demonstrate probable cause; (3) if a competent oﬃcer \nreviewing the hypothetical aﬃdavit could reasonably but \nmistakenly conclude that it established probable cause, then \nthe materiality of the false or omitted information was not \n“clearly established.” \n We have never applied the test that Benner proposes. \nThere is a reason: it doesn’t make sense. To begin with, Ben‐\nner’s framing has the proverbial reasonable oﬃcer facing a \nsituation diﬀerent from the one Benner did. Qualified immun‐\nity depends on whether it would have been “clear to a reason‐\nable oﬃcer that his conduct was unlawful in the situation he \nconfronted.” Wesby, 138 S. Ct. at 590 (emphasis added) (citation \nomitted). In other words, the court puts a competent oﬃcer in \nthe defendant’s shoes, facing the same choice that the defend‐\nant did. Benner did not face a choice about whether the facts \nin the hypothetical aﬃdavit established probable cause. He \nfaced a choice about whether to make false or misleading \nstatements in the aﬃdavit. (He has also been faulted for ex‐\ncluding exculpatory evidence, but that presents diﬀerent is‐\nsues that we’ll get to below.) Thus, the relevant question is \nwhat a well‐trained oﬃcer would have thought about the law‐\nfulness of that action. What Benner is really arguing, then, is \nthat he is entitled to qualified immunity if a well‐trained of‐\nficer could “reasonably but mistakenly conclude” that it was \nlawful to include an incriminating lie in an aﬃdavit because \nthe lie wasn’t material to the probable cause determination. \nSee Anderson v. Creighton, 483 U.S. 635, 641 (1987). \n Of course, a competent oﬃcer would not even entertain \nthe question whether it was lawful for him to lie in a probable \n\f22 No. 17‐2521 \n\ncause aﬃdavit. The hypothetical oﬃcer in the qualified im‐\nmunity analysis is one who acts in good faith. That is what the \nstandard of “objective reasonableness” is designed to capture. \nSee Harlow v. Fitzgerald, 457 U.S. 800, 815–19 (1982); Malley v. \nBriggs, 475 U.S. 335, 345 (1986); cf. United States v. Leon, 468 \nU.S. 897, 922–23 (1984) (establishing the “good faith excep‐\ntion” to the exclusionary rule). Indeed, protecting oﬃcers \nwho act in objective good faith is the justification for qualified \nimmunity. Harlow, 457 U.S. at 815, 819 n.34 (explaining that \nqualified immunity applies to suits “arising from actions \nwithin the scope of an oﬃcial’s duties and in objective good \nfaith” (emphasis added) (internal quotation omitted)). It \nwould be flatly inconsistent with that justification to imagine \na competent oﬃcer considering the question whether a lie \nhelpful to demonstrating probable cause is so helpful that he \nshould not tell it. That is neither a reasonable question to ask \nnor a reasonable mistake to make. \n Nonetheless, Benner maintains that we have previously \nembraced his approach. He seizes on a sentence in Betker v. \nGomez, in which we asserted that “[a]n officer who knowingly \nor recklessly submitted an affidavit containing false state‐\nments may still get qualified immunity if he can establish that \nhe had an objectively reasonable basis for believing the facts \nin the affidavit were sufficient to establish probable cause.” \nSee 692 F.3d at 860. Taken out of context, this sentence super‐\nficially supports Benner’s position that he is entitled to quali‐\nfied immunity if the hypothetical affidavit establishes “argu‐\nable probable cause.” But his cherry‐picking distorts what we \nactually said. In the very next sentence we explained: “But \nqualified immunity does not extend where an officer know‐\ningly or recklessly made false statements and ‘no accurate in‐\nformation sufficient to constitute probable cause attended the \n\fNo. 17‐2521 23 \n\nfalse statements.’” Id. (quoting Lawson v. Veruchi, 637 F.3d 699, \n705 (7th Cir. 2011)). Our analysis then proceeded as we do \nhere: we constructed a hypothetical affidavit, determined \nwhether it established actual probable cause, and denied \nqualified immunity because “immunity does not extend \n‘[w]here the judicial finding of probable cause is based solely \non information the officer knew to be false or would have \nknown was false had he not recklessly disregarded the \ntruth.’” Id. (alteration in original) (quoting Olson v. Tyler, 771 \nF.2d 277, 282 (7th Cir. 1985)). We never asked, much less ana‐\nlyzed, whether the officer in Betker had made a reasonable \nmistake about the materiality of his lies. \n To summarize: if an officer knowingly or recklessly in‐\ncludes false information in an affidavit and that information \nis not material, he will not be liable in a § 1983 action because \nthe plaintiff will not be able to prove a constitutional viola‐\ntion. But if that information is material, the officer is not enti‐\ntled to qualified immunity. The unlawfulness of using delib‐\nerately falsified allegations to establish probable cause could \nnot be clearer. See, e.g., Lawson, 637 F.3d at 705 (“[I]t [i]s clearly \nestablished ‘that a warrant request violates the Fourth \nAmendment if the requesting officer knowingly, intention‐\nally, or with reckless disregard for the truth, makes false state‐\nments in requesting the warrant and the false statements were \nnecessary to the determination that a warrant should issue.’” \n(citation omitted)); Olson, 771 F.2d at 281 (“If an officer sub‐\nmitted an affidavit that contained statements he knew to be \nfalse or would have known were false had he not recklessly \ndisregarded the truth and no accurate information sufficient \nto constitute probable cause attended the false statements, not \nonly is his conduct the active cause of the illegal arrest, but he \n\f24 No. 17‐2521 \n\ncannot be said to have acted in an objectively reasonable man‐\nner.”). And the plaintiff need not show that the materiality of \nthe lie would have been clear to a competent officer. The qual‐\nified immunity analysis uses the perspective of an officer act‐\ning in good faith, and an officer acting in good faith would \nnot entertain that question. \n An officer sued for failing to include materially \nexculpatory facts in a probable cause affidavit is differently \nsituated. It violates clearly established law to “intentionally or \nrecklessly withhold material information from a warrant \napplication.” Whitlock, 596 F.3d at 408. But while a competent \nofficer would not ask whether the Fourth Amendment \npermits him to tell a particular lie, a competent officer \nwould—indeed, must—consider whether the Fourth \nAmendment obligates him to disclose particular evidence. \nBecause an officer acting in good faith could make a \nreasonable mistake about his disclosure obligation, the \nmateriality of omitted facts, unlike the materiality of false \nstatements, is properly part of the qualified‐immunity \nanalysis. We have repeatedly held, therefore, that an officer \nviolates the Fourth Amendment by omission only if “it would \nhave been clear to a reasonable officer that the omitted fact \nwas material to the probable‐cause determination.” See Leaver \nv. Shortess, 844 F.3d 665, 669 (7th Cir. 2016); see also Olson v. \nTyler, 825 F.2d 1116, 1121 (7th Cir. 1987) (“[O]nly where a \nreasonable officer can conclude that a withheld fact is \nirrelevant to probable cause should such an officer who \nwithholds a known (or recklessly disregarded) fact be \nprotected with qualified immunity.”). \n Whitlock provides an illustration. See 596 F.3d 406. There, \ncampers picked up apparently abandoned bags in an Indiana \n\fNo. 17‐2521 25 \n\nstate park, intending to turn them in to park authorities so \nthat the property could be returned to its rightful owner. Id. \nat 408–09. But they forgot for several hours, the bags were re‐\nported stolen, and the campers were arrested for criminal \nconversion. Id. at 409. They sued the officer who obtained the \nwarrant, alleging that he withheld a material fact by failing to \ninclude the campers’ innocent explanation for taking the bags \nin his probable cause affidavit. Id. at 410. We held that the of‐\nficer was entitled to qualified immunity. Because Indiana law \non criminal conversion was undeveloped, a reasonable officer \nwould not necessarily have known that the campers’ explana‐\ntion for taking the bags was material to the probable cause \ndetermination. Id. at 413. A well‐trained officer could make a \nreasonable mistake about whether a given fact would negate \nprobable cause. \n Here, Benner has not argued that it would have been un‐\nclear to a reasonable oﬃcer that any of the information that \nhe omitted was material to the probable cause determination. \nThus, we need not address whether he made any reasonable \nmistakes in that regard. \n * * * \n The district court correctly held that Benner is not entitled \nto qualified immunity, and its judgment is AFFIRMED.\n[END_CASE]", "role": "user" } ]
4,581,743		Mark Mittelstadt v. Sonny Perdue	2019-01-15	17-2447	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before RIPPLE, SYKES, and SCUDDER, Circuit Judges.", "parties": "", "opinions": [{"author": "Kenneth Francis Ripple", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-2447\nMARK MITTELSTADT,\n Plaintiff-Appellant,\n v.\n\nSONNY PERDUE, Secretary of Agriculture,\n Defendant-Appellee.\n ____________________\n\n Appeal from the United States District Court for the\n Western District of Wisconsin.\n No. 3:15-cv-00725-wmc — William M. Conley, Judge.\n ____________________\n\n ARGUED SEPTEMBER 28, 2018 — DECIDED JANUARY 15, 2019\n ____________________\n\n Before RIPPLE, SYKES, and SCUDDER, Circuit Judges.\n RIPPLE, Circuit Judge. Mark Mittelstadt owned a tract of\nland in Richland County, Wisconsin, that was enrolled in the\nConservation Reserve Program (“CRP”), administered by the\nUnited States Department of Agriculture (“USDA”), from\n1987 to 2006. Participants in the CRP agree to remove environ-\nmentally sensitive land from agricultural production in return\nfor annual rental payments from the USDA. In 2006, the\nagency denied Mr. Mittelstadt’s application to reenroll his\n\f2 No. 17-2447\n\nland in the CRP. After exhausting his administrative appeals,\nhe brought this action against the Secretary of the USDA (“the\nSecretary”). He asserted one claim under Section 702 of the\nAdministrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq.,\nchallenging the Secretary’s final decision denying reenroll-\nment, and one common law claim for breach of contract.\nMr. Mittelstadt moved for summary judgment in the district\ncourt, seeking an order directing reenrollment of his land in\nthe CRP and awarding monetary relief for the alleged breach\nof contract. The district court denied his motion for summary\njudgment, aﬃrmed the Secretary’s rulings, and entered judg-\nment in favor of the Secretary on Mr. Mittelstadt’s APA and\nbreach of contract claims. Mr. Mittelstadt now appeals the\ndistrict court’s decision.\n Under the regulations governing the CRP, the USDA has\nbroad discretion to evaluate oﬀers of enrollment in the pro-\ngram on a competitive basis by considering the environmen-\ntal benefits of a producer’s land relative to its costs. Given the\nagency’s wide latitude, we conclude that the Farm Services\nAgency (“FSA”) did not abuse its discretion when it denied\nreenrollment of Mr. Mittelstadt’s land. Moreover, because he\nnever entered a new contract with the agency, there was no\nbreach of contract. We therefore aﬃrm the judgment of the\ndistrict court.\n I\n A.\n In 1988, Mr. Mittelstadt purchased a tract of land in Rich-\nland County, Wisconsin (“Tract 9073”), that was subject to a\nCRP contract for the period 1987 through 1996. To comply\nwith a revised conservation plan, Mr. Mittelstadt planted\n\fNo. 17-2447 3\n\nwhite pine, walnut, and red oak trees on the land in 1989. A\nCRP review later that year determined that Mr. Mittelstadt\nhad completed all items in the conservation plan. Another\nCRP maintenance inspection in 1995 found no problems with\nthe land. In 1996, the Commodity Credit Corporation\n(“CCC”) extended the existing CRP contract for one year, to\nrun from October 1, 1996, through September 30, 1997.\n In 1997, Mr. Mittelstadt applied to reenroll his land in the\nprogram, stating on the application that Tract 9073 had a con-\nservation practice of CP11, or “vegetative cover—trees—al-\nready established.”1 Relying on the information in his appli-\ncation, the FSA assigned his land an environmental benefits\nindex (“EBI”) score of fifty points.2 This EBI score meant that\nthe conservation practices on the land included “[p]ine estab-\nlished with less than 500 trees per acre with strips of native\nherbaceous and shrub plantings best suited for wildlife in the\narea, mixed hardwoods established, or longleaf pine.”3 The\nFSA approved the new contract (“Contract 653”), to be effec-\ntive from 1998 to 2007. A 2002 field status review of the prop-\nerty found no violations, noting, “Trees are growing and look-\ning good.”4\n In 2006, Mr. Mittelstadt began the reenrollment process by\npaying for a spot-check inspection of Tract 9073. The inspec-\ntion found no violations, noting “62.9 CP11 Tre[es] … already\n\n1 R.16-5 at 2.\n2 The FSA relies on a national EBI to rank offers for enrollment in the CRP\n\nbased on their estimated environmental benefits and costs. See R.16-1 at\n679.\n3 R.16-5 at 3.\n4 Id.\n\f4 No. 17-2447\n\nest” and “good.”5 The Natural Resources Conservation Ser-\nvice (“NRCS”) sent Mr. Mittelstadt Contract 1710, a form CRP\ncontract for the term October 1, 2007, to September 30, 2017,\nwhich Mr. Mittelstadt signed on July 26, 2006.6 On August 19,\n2006, Mr. Mittelstadt signed a revised version of the contract,\namended to reflect the correct acreage of Tract 9073.\n In August 2006, the NRCS sent Mr. Mittelstadt a conserva-\ntion plan for Tract 9073. The plan “identified the conservation\npractice as CP11, a ‘mixed stand (2 species) of hardwoods best\nsuited for wildlife in the area.’”7 Mr. Mittelstadt signed the\nplan on August 24, 2006, and, on September 1, 2006, the Rich-\nland County Conservation Department approved it. The\nNRCS signed off on the plan on September 5, 2006, as did the\nFSA on September 13, 2006.\n B.\n On or around September 13, 2006, Jared Reuter, the\nCounty Executive Director of the Richland County FSA,\nsigned the amended version of Contract 1710 on behalf of the\nCCC. Reuter’s signature was later whited out,8 however, and\nMr. Mittelstadt never received a countersigned copy of Con-\ntract 1710. On September 14 and 16, 2006, Reuter conducted\ntwo maintenance inspections of Mr. Mittelstadt’s land. By let-\nter dated September 21, 2006, the FSA County Committee\n\n\n5 Id.\n6 The CCC never countersigned the original version of Contract 1710.\n7 R.16-5 at 3.\n8 The Secretary contends that Reuter likely whited out his signature after\ninspecting Mr. Mittelstadt’s property and discovering CRP violations on\nTract 9073. Appellee’s Br. 8 n.2.\n\fNo. 17-2447 5\n\nnotified Mr. Mittelstadt that the inspections revealed CRP vi-\nolations on Tract 9073. Aerial photos taken in 2005 showed\nthat three areas of the acreage had “suffered tree loss that the\nfield reporter did not originally report during the re-enroll-\nment compliance check.”9 Reuter also found that very few red\noak trees “were present from the original planting,” and\n“[o]ne area with the most red oak present had less than 100\nplanted red oak trees present.”10 The letter warned that “[v]io-\nlations of this type can result in termination of the acreage in-\nvolved” and that Mr. Mittelstadt’s “re-enrollment/extension\noffer cannot be approved until this issue is settled.”11\n At a hearing on October 25, 2006, the FSA County Com-\nmittee discussed the issues raised by the inspections, and the\nnext day, the committee sent Mr. Mittelstadt a letter terminat-\ning Contract 653. The committee explained that, in 1997,\nMr. Mittelstadt’s acreage did not have “a ‘mixed hardwood\nstand of trees (more than one species of hardwood trees)’ be-\ncause of the ‘failed population of red oak.’”12 As a result, the\nFSA had assigned incorrectly an EBI score of fifty points upon\nreenrollment of the land in the CRP. Further, to “be eligible to\nbe placed in the CRP,” land must qualify under a covered cat-\negory, such as “[a]creage enrolled in CRP during the final\nyear of the CRP contract.” 7 C.F.R. § 1410.6(a). Because\nMr. Mittelstadt’s land was enrolled improperly under\n\n\n\n\n9 R.16-5 at 3.\n10 R.19 at 103 (Letter from Reuter to Mr. Mittelstadt (Sept. 21, 2006)).\n11 Id. at 103–04.\n12 R.16-5 at 4.\n\f6 No. 17-2447\n\nContract 653 in 1997, the committee also found it was not eli-\ngible for reenrollment under Contract 1710 in 2006.\n Mr. Mittelstadt appealed the County Committee’s deci-\nsion to the Wisconsin State FSA Committee. By letter dated\nAugust 13, 2007, the State FSA Committee upheld the County\nCommittee’s decision, finding that “[t]here are no areas of the\ncontract that qualify as ‘mixed hardwoods.’”13 The State Com-\nmittee concluded that “the scoring of the contract offer in 1997\nwas incorrect,” and that the land was “also ineligible for\nre-enrollment through the re-enrollment and extension pro-\ncess that was conducted in 2006 because the current contract\nwas not in compliance.”14\n C.\n Mr. Mittelstadt sought review from the USDA’s National\nAppeals Division, where the parties stipulated that the sole\nissue on appeal was the propriety of the eligibility determina-\ntion with respect to Contract 653 that had been made in 1997.\nThe Hearing Officer upheld the State Committee’s decision,\nbut, on further review, the Deputy Director reversed the de-\ncision. Because “the preponderance of the evidence show[ed]\nthat the placement of trees on Appellant’s land satisfied the\n‘mixed hardwoods established’ requirement for a CP11 prac-\ntice and warranted the assigned EBI score of fifty points,” the\nDeputy Director ordered the FSA to reinstate Contract 653.15\nHowever, the Deputy Director found no error with respect to\nthe FSA’s denial of reenrollment under Contract 1710. Given\n\n\n13 R.19 at 38.\n14 Id.\n15 R.16-5 at 7.\n\fNo. 17-2447 7\n\nthat Mr. Mittelstadt’s land “may not meet new standards such\nas a new definition of mixed hardwood stand or FSA other-\nwise may have a legitimate reason for not extending re-enroll-\nment,” the decision “was supported by applicable regulations\nand substantial evidence in the record.”16\n Mr. Mittelstadt sought reconsideration of the Deputy Di-\nrector’s decision, which the FSA Director denied. The Director\nexplained that “agency regulations at 7 C.F.R. § 1410.31(a)\nprovide that acceptance or rejection of any offer of land by an\nowner for CRP participation shall be in the sole discretion of\nthe CCC and offers may be rejected for any reason as deter-\nmined to accomplish the goals of the program.”17 According\nto the Director, “[w]hile not cited in the determination, this\nregulation was the basis” for the Deputy Director’s decision.18\nThus, “[o]nce FSA concluded that the property no longer had\nas high an EBI score as it once did, FSA could use that score\nto decide that funding a continuation of enrollment of the\nproperty was not as high a priority as funding other CRP con-\ntracts.”19\n\n\n D.\n Having exhausted his administrative appeals, Mr. Mittel-\nstadt filed a complaint in the district court. He asserted a\nclaim under the APA, contending that the decision denying\n\n\n16 Id.\n17 R.16-6 at 1.\n18 Id.\n19 Id.\n\f8 No. 17-2447\n\nhis application for reenrollment under Contract 1710 was ar-\nbitrary, capricious, and unlawful. In the alternative, he set out\na common law claim, asserting that the agency breached its\nobligations under Contract 1710. He later moved for sum-\nmary judgment on both counts of the complaint.\n The district court denied Mr. Mittelstadt’s motion for\nsummary judgment and affirmed the agency’s final decision.\nFirst, the district court rejected Mr. Mittelstadt’s contention\nthat the Deputy Director of the National Appeals Division\nhad abused his discretion by upholding the denial of reenroll-\nment under Contract 1710 despite the parties’ stipulation that\nthe sole issue on appeal was the propriety of the 1997 eligibil-\nity determination. Second, the district court rejected Mr. Mit-\ntelstadt’s assertion that the USDA had abused its discretion\nby denying reenrollment of his land in 2007 based on a con-\nservation standard adopted in 2006. Third, the district court\ndismissed Mr. Mittelstadt’s common law claim for breach of\ncontract, determining that no contract existed to support that\nclaim. The district court then entered judgment in favor of the\nSecretary on Mr. Mittelstadt’s APA and breach of contract\nclaims. Mr. Mittelstadt timely sought review of the district\ncourt’s decision.20\n\n\n20 The district court had jurisdiction over this case under the judicial re-\nview provision of the APA, which waives sovereign immunity for actions\n“seeking relief other than money damages and stating a claim that an\nagency or an officer or employee thereof acted or failed to act in an official\ncapacity or under color of legal authority.” 5 U.S.C. § 702. For purposes of\n§ 702, the Supreme Court has held that the mere “fact that a judicial rem-\nedy may require one party to pay money to another is not a sufficient rea-\nson to characterize the relief as ‘money damages.’” Bowen v. Massachusetts,\n487 U.S. 879, 893 (1988). Instead, the critical question is whether the plain-\ntiff seeks substitute or specific relief. Whereas “[d]amages are given to the\n\fNo. 17-2447 9\n\n II\n DISCUSSION\n We review the district court’s decision on summary judg-\nment de novo. Stable Invs. P’ship v. Vilsack, 775 F.3d 910, 915\n(7th Cir. 2015). In “an action for review of final action taken\nby a federal administrative agency, the ultimate question is\nwhether that action is ‘arbitrary, capricious, an abuse of dis-\ncretion, or otherwise not in accordance with the law.’” Id. (ci-\ntation omitted) (quoting 5 U.S.C. § 706(2)). To “answer[] that\nquestion, we rely on the same administrative record that was\n\nplaintiff to substitute for a suffered loss,” specific remedies “attempt to\ngive the plaintiff the very thing to which he was entitled.” Id. at 895 (quot-\ning Maryland Dep’t of Human Res. v. Dep’t of Health & Human Servs., 763\nF.2d 1441, 1446 (D.C. Cir. 1985)) (emphasis in original). Here, Mr. Mittel-\nstadt’s request for an order directing the Secretary “to pay all amounts due\nand owing under Contract 1710,” R.3 ¶ 152, was not a request for “money\ndamages” because Mr. Mittelstadt sought payments “not as compensation\nfor [the Secretary’s] failure to perform some other obligation,” but as “the\nvery thing to which he was entitled” under the CRP. Columbus Reg’l Hosp.\nv. FEMA, 708 F.3d 893, 896 (7th Cir. 2013) (quoting Bowen, 487 U.S. at 895).\nMr. Mittelstadt’s APA claim challenging the Secretary’s decision denying\nreenrollment seeks “relief other than money damages,” and is “therefore\nwithin the waiver of sovereign immunity in section 702.” Maryland Dep’t\nof Human Res. v. Dep’t of Health & Human Servs., 763 F.2d 1441, 1448 (D.C.\nCir. 1985) (quoting 5 U.S.C. § 702). Additionally, because his breach of con-\ntract claim is, at base, an alternative request for administrative relief di-\nrecting the Secretary to make the payments to which Mr. Mittelstadt\nwould have been entitled under Contract 1710, this claim is simply a dif-\nferent way of characterizing his request for “the very thing to which he\nwas entitled” under the CRP. Columbus Reg’l Hosp., 708 F.3d at 896 (quot-\ning Bowen, 487 U.S. at 895). Jurisdiction over Mr. Mittelstadt’s breach of\ncontract claim was therefore proper under § 702. We have jurisdiction over\nthis appeal from the district court’s entry of summary judgment under 28\nU.S.C. § 1291.\n\f10 No. 17-2447\n\nbefore the district court and render an independent judgment\nas to whether the agency acted unreasonably.” Id. Under this\n“deferential standard,” we “will uphold a decision of less\nthan ideal clarity if the agency’s path may reasonably be dis-\ncerned.” St. Clair v. Sec’y of Navy, 155 F.3d 848, 851 (7th Cir.\n1998) (internal quotation marks omitted).\n A.\n We begin with an examination of the governing statutory\nscheme. As part of the Food Security Act of 1985,21 Congress\nestablished the CRP. This program incentivizes landowners\nto remove environmentally sensitive land from agricultural\nproduction in return for annual rental payments from the\nUSDA. S. Rep. 99-145, at 1971 (1985). The impetus for the de-\nvelopment of the CRP was an increased concern about soil\nerosion. Id. In 1982, the National Resources Inventory22 had\ndetermined that almost fifty percent of erosion occurred on\nonly ten percent of cropland in the United States. Id. The Soil\nConservation Service projected that the CRP would “reduce\nwind and water erosion on these acres by an average of nearly\n20 tons per acre per year.” Id. (capitalization omitted). Ac-\ncordingly, Congress directed the Secretary to “formulate and\ncarry out” the CRP by awarding contracts to encourage land-\nowners “to conserve and improve the soil, water, and wildlife\nresources of such land and to address issues raised by State,\n\n\n21 Pub. L. No. 99-198, §§ 1201, 1231–1236, 99 Stat. 1354, 1504–05, 1509–14\n(codified as amended at 16 U.S.C. §§ 3801, 3831–3836).\n22 Administered by the NRCS, the National Resources Inventory is a “sta-\ntistically-based survey” designed to “assess conditions and trends of soil,\nwater, and related resources on nonfederal lands in the United States.” 7\nC.F.R. § 601.1(f)(1)(v).\n\fNo. 17-2447 11\n\nregional, and national conservation initiatives.” 16 U.S.C.\n§ 3831(a).\n The USDA oversees the CRP, with funding provided by\nthe CCC, an entity owned and operated by the government.\n16 U.S.C. § 3841(a). Together with the FSA, the CCC is respon-\nsible for implementing the regulations governing the CRP. 7\nC.F.R. § 1410.1(a). The Agricultural Stabilization and Conser-\nvation Service, which operates through state and county com-\nmittees, administers the CRP on behalf of the CCC.\n The FSA and the Agricultural Stabilization and Conserva-\ntion Service also have issued, for use by the state and county\ncommittees, handbooks detailing the procedures and require-\nments for implementing and participating in the CRP. These\nhandbooks, which were not published in the Federal Register\nand therefore were not promulgated according to the require-\nments of the APA, are interpretive only and do not have the\nforce or effect of official regulations.23\n The statute limits the type and total acreage of land that\ncan be enrolled in the CRP. Land eligible for enrollment in-\ncludes certain highly erodible cropland, marginal pasture\nland, grasslands, and, at the Secretary’s determination, other-\nwise ineligible cropland that poses an environmental threat.\n16 U.S.C. § 3831(b). During fiscal year 2018, the Secretary\ncould maintain no more than twenty-four million acres of\nland in the program. Id. § 3831(d)(1)(E). Additionally, the\n\n\n23 See Westcott v. U.S. Dep’t of Agric., 765 F.2d 121, 122 (8th Cir. 1985) (per\ncuriam); see also Thomas v. Cty. Office Comm. of Cameron Cty., 327 F. Supp.\n1244, 1253 (S.D. Tex. 1971); Graham v. Lawrimore, 185 F. Supp. 761, 764\n(E.D.S.C. 1960); Hawkins v. State Agric. Stabilization & Conservation Comm.,\n149 F. Supp. 681, 686 (S.D. Tex. 1957).\n\f12 No. 17-2447\n\nSecretary cannot enroll more than twenty-five percent of the\ncropland in any county unless he determines that enrolling a\nlarger percentage “would not adversely affect the local econ-\nomy.” 16 U.S.C. § 3844(f).\n Landowners who wish to participate in the CRP must en-\ngage in a bid system. According to the legislative history, the\nstatute utilizes this system because “the competitive bid sys-\ntem is the most cost-effective means of identifying our least\nproductive and most erosion prone acreage, while at the same\ntime minimizing cost to the U.S. Treasury.” S. Rep. 99-145, at\n1971 (capitalization omitted). Congress determines, for a\ngiven year, the maximum acreage permitted to be enrolled in\nthe CRP each time it amends the authorizing statute.24 Indi-\nvidual rental payments are capped at $50,000 per year. 16\nU.S.C. § 3834(g)(1).\n To participate in the bidding process, landowners submit\noffers to the CCC indicating “the amounts they are willing to\naccept as rental payments to enroll their acreage in the CRP.”\n7 C.F.R. § 1410.31(a). The CCC may evaluate offers “on a com-\npetitive basis in which the offers selected will be those where\nthe greatest environmental benefits relative to cost are gener-\nated.” Id. In evaluating offers, the agency employs a national\nEBI, which “provides a relative ranking of estimated environ-\nmental benefits and cost for land offered for CRP.”25 “Ac-\nceptance or rejection of any offer” is “in the sole discretion of\nthe CCC[,] and offers may be rejected for any reason as\n\n\n24 See Agriculture Improvement Act of 2018, Pub. L. No. 115-334, §\n 2201(c)\n(amending 16 U.S.C. § 3831(d)); Agricultural Act of 2014, Pub. L. No.\n113-79, § 2001(d) (same).\n25 R.16-1 at 679.\n\fNo. 17-2447 13\n\ndetermined needed to accomplish the goals of CRP.” 7 C.F.R.\n§ 1410.31(a). When evaluating contract offers, the CCC may\nconsider such factors as soil erosion, water quality, wildlife\nbenefits, soil productivity, the “[l]ikelihood that enrolled land\nwill remain in non-agriculture use beyond the contract pe-\nriod,” air quality, and the cost of enrolling the land in the CRP.\nId. § 1410.31(b). Offers to enroll in the CRP are “irrevocable\nfor such period as is determined and announced by the Dep-\nuty Administrator” of the FSA. 7 C.F.R. § 1410.32(c)(2). If an\napplicant revokes his offer during the irrevocable period, he\nmay be liable to the CCC for liquidated damages. Id.\n Following CCC approval, the USDA awards CRP con-\ntracts for terms between ten and fifteen years, depending on\nthe type of land involved. 16 U.S.C. § 3831(e)(1).26 In return\nfor converting their land to less intensive uses, landowners\nreceive annual rental payments. 16 U.S.C. § 3833(a)(2). The\namounts of these payments are determined when the land-\nowners submit bids for CRP contracts. 16 U.S.C.\n§ 3834(d)(2)(A)(i).\n Participants in the CRP must obtain and implement a con-\nservation plan outlining required conservation practices for\nthe enrolled land. The conservation plan is considered part of\nthe CRP contract, 7 C.F.R. § 1410.20(a)(2), and must be ap-\nproved by the conservation district in which the land is\n\n26 Specifically, “[c]ontracts with land devoted to hardwood trees, shelter-\nbelts, windbreaks, or wildlife corridors will be for a term of 10 years to 15\nyears, as requested by the applicant.” 7 C.F.R. § 1410.7(a). By contrast,\n“[o]ther general and continuous signup contracts … will be for a term of\n10 to 15 years, as determined by the Deputy Administrator.” Id.\n§ 1410.7(b). “Grassland signup contracts will be for a term of 15 years.” Id.\n§ 1410.7(c).\n\f14 No. 17-2447\n\nlocated, 7 C.F.R. §§ 1410.3(b), 1410.22(a). Landowners must\n“[e]stablish and maintain” the required vegetative cover and\nthe required practices on the enrolled land, and must “take\nother actions that may be required by CCC to achieve the de-\nsired environmental benefits and to maintain the productive\ncapability of the soil throughout the contract period.” 7 C.F.R.\n§ 1410.20(a)(6). All conservation plans and revisions to such\nplans are subject to the approval of the Deputy Administrator\nof the FSA. 7 C.F.R. § 1410.22(e). Subject to fund availability,\nthe CCC must “[s]hare up to 50 percent of the cost” of estab-\nlishing conservation practices with CRP participants. 7 C.F.R.\n§ 1410.21(a). Rental payments combined with cost-sharing are\ndesigned to assure landowners of a return on the land with-\nout having to risk large sums of money to adopt conservation\npractices.27\n The CCC retains the authority to modify or terminate an\nexisting CRP contract. Specifically, the CCC can modify a CRP\ncontract if the Deputy Administrator determines that,\nthrough no fault of the participant, the “installed practice\nfailed to adequately provide for the desired environmental\nbenefit” or “deteriorated,” and that “[a]nother practice will\nachieve at least the same level of environmental benefit.” 7\nC.F.R. § 1410.33(b). Additionally, the CCC can terminate a\nCRP contract before expiration of the term if, among other\ngrounds, “[t]he participant is not in compliance with the\nterms and conditions of the contract,” “[t]he CRP practice fails\nor is not established after a certain time period,” the “contract\nwas approved based on erroneous eligibility determina-\ntions,” or “[t]he Deputy Administrator determines that such\n\n27See Michael W. Strain, Student Survey, The Conservation Reserve: A Bold\nStep Towards the Future, 31 S.D. L. Rev. 523, 529 (1986).\n\fNo. 17-2447 15\n\na termination is needed in the public interest, or is otherwise\nnecessary and appropriate to further the goals of CRP.” 7\nC.F.R. § 1410.32(f).\n This statutory and regulatory scheme places considerable\ndiscretion over CRP participation in the hands of the FSA. The\nimplementing regulations afford the agency broad discretion\nto evaluate offers for enrollment and reenrollment in the pro-\ngram:\n [O]ffers may, to the extent practicable, be evalu-\n ated on a competitive basis in which the offers\n selected will be those where the greatest envi-\n ronmental benefits relative to cost are gener-\n ated … . Acceptance or rejection of any offer,\n however, shall be in the sole discretion of the\n CCC and offers may be rejected for any reason\n as determined needed to accomplish the goals\n of CRP.\n7 C.F.R. § 1410.31(a). Although we have had no occasion to\ndescribe the scope of discretion under this particular regula-\ntion, our cases involving other statutory and regulatory\ngrants of “sole discretion” confirm that this language confers\nwide latitude upon the relevant actor.28\n\n\n\n28 See, e.g., Mahler v. U.S. Forest Serv., 128 F.3d 573, 577–78 (7th Cir. 1997)\n(concluding, where the Rescissions Act of 1995 required the Secretary of\nAgriculture to prepare an environmental assessment and a biological eval-\nuation “at the sole discretion of the Secretary concerned and to the extent\nthat the Secretary concerned considers appropriate and feasible,” that\n“this language clearly authorize[d] the Secretary to permit a shorter pe-\nriod for public comment than that usually required under the Public Par-\nticipation Law” (emphasis added)).\n\f16 No. 17-2447\n\n B.\n With this statutory and regulatory background in mind,\nwe turn first to Mr. Mittelstadt’s contention that the agency\nabused its discretion because it had not defined “mixed hard-\nwoods” when it considered his application for reenrollment\nunder Contract 653 in 1997 or under Contract 1710 in 2006.\nWe also consider his related argument that the agency’s ap-\nplication of a new interpretation of “mixed hardwoods,”\nadopted in 2006, when it denied his request for reenrollment\nunder Contract 1710 was an abuse of discretion.\n Here, the Secretary “readily acknowledge[d] that,\nthroughout the entire relevant time period, there was never a\npublished definition of ‘mixed hardwoods’ in FSA’s Hand-\nbook, in the regulations, or elsewhere.”29 Nevertheless, to\nevaluate Mr. Mittelstadt’s 2006 application for reenrollment,\nthe agency interpreted “mixed hardwoods” to mean “two\nspecies of hardwoods planted together in the same rows.”30\nGiven the great discretion vested in the Secretary to obtain\noptimal environmental return for every dollar appropriated\nfor the CRP, the FSA clearly had the capability to tighten the\ndefinition of “mixed hardwoods” for new contract periods.31\nThe very nature of the program affords the Secretary the au-\nthority to change the terms and conditions of participation in\n\n\n29 Appellee’s Br. 35.\n30 R.9 ¶ 70.\n31 Cf. Paragon Health Network, Inc. v. Thompson, 251 F.3d 1141, 1147 (7th Cir.\n\n2001) (noting that “Congress is presumed to have delegated the primary\npower to fill regulatory ambiguities to the agency, and courts owe defer-\nence to agency decisions that clarify a regulation regardless of the fact that\nthe agency waited to exercise this power”).\n\fNo. 17-2447 17\n\norder to achieve, given the resources available, the most ad-\nvantageous result. The USDA’s policy, therefore, was to\nmaintain a competitive program that allowed the Secretary to\nselect, based on currently available funding, the best land\navailable to attain the goals of the program. The agency did\nnot have to contract for the same conservation measures at the\nsame price upon each reenrollment.\n The Secretary’s decision to limit program participation to\nland with a different pattern of hardwoods, a pattern that he\ndeemed more favorable to the conservation ends of the pro-\ngram, cannot be characterized fairly as the reversal of an\nagency policy. Because there was no previous specific defini-\ntion applicable to all future contracts set forth in the regula-\ntions or even in the FSA Handbook, the Secretary did not re-\nverse a governing policy.32 For the same reason, the 2006 re-\nquirement cannot be characterized as such “a sudden and un-\nexpected change in agency policy” as to be arbitrary, capri-\ncious, or an abuse of discretion.33 The new requirement is\ngrounded firmly in the governing statutes and regulations\nand implements the Secretary’s decision that such a criterion\n\n\n32 Cf. Friends of the Boundary Waters Wilderness v. Dombeck, 164 F.3d 1115,\n1123 (8th Cir. 1999) (holding that, since no prior Forest Service or USDA\nplans provided a definition of the term “guest” for purposes of motorboat\nuse restrictions, the definition newly provided by the Forest Service to\navoid abuses of the motorboat use quota system could not “be considered\nas reversing a prior agency policy” and was entitled to deference).\n33 See id. (observing that “‘the mere fact that an agency interpretation con-\n\ntradicts a prior agency position is not fatal,’ unless the new position is a\nsudden and unexpected change in agency policy that can be characterized\nas arbitrary, capricious, or an abuse of discretion” (quoting Smiley v. Citi-\nbank (S.D.), N.A., 517 U.S. 735, 742 (1996)).\n\f18 No. 17-2447\n\nwill ensure that the available government funds are imple-\nmented in the most effective manner.34\n Mr. Mittelstadt conceded that “there were never areas of\n[his] acreage planted to more than one species of hard-\nwood.”35 He had understood that “the terminology ‘mixed\nhardwoods’ mean[t] only 1 hardwood species ‘mixed’ with\npine.”36 Accordingly, in 1989, he planted three sections of\ntrees on his land: (1) walnut and white pine trees, (2) red oak\nand white pine trees, and (3) solely white pine trees.37 Pine\ntrees are softwoods, whereas walnut and red oak trees are\nhardwoods, so that no section he planted had more than one\nspecies of hardwood tree mixed with pine. It follows that, by\n2006, his acreage did not meet the FSA’s new requirement,\nwhich required that “there be at least 2 species of hardwoods\n\n34 Mr. Mittelstadt asserts that the FSA was “affirmatively required” to in-\nform him of the new interpretation of “mixed hardwoods” and to “help[]\nhim craft a new plan that would elevate [Tract 9073’s] EBI score by chang-\ning the arrangement of hardwood species.” Appellant’s Br. 32. He relies\non the FSA Handbook, which states that the “FSA will review EBI scoring\nparameters with the producers and encourage the planting of cover types\nand conservation measures, if appropriate, that will provide higher envi-\nronmental benefits.” R.16-1 at 679. However, the agency did not discover\nthat Mr. Mittelstadt’s land did not meet the new requirement for “mixed\nhardwoods” until he began the reenrollment process, at which point the\nmaintenance inspections revealed CRP violations. The agency informed\nhim that, to reenroll his land, he could cure the violations by planting two\nor more species of hardwood trees mixed with a softwood tree. The FSA\nHandbook, which does not confer a legal right on Mr. Mittelstadt to par-\nticipate in the program, did not require more.\n35 R.19 at 36–37.\n36 Id. at 37.\n37 Id. at 28.\n\fNo. 17-2447 19\n\nmixed into the rows of hardwoods.”38 The FSA therefore did\nnot abuse its discretion when it determined that Mr. Mittel-\nstadt’s land did not satisfy the 2006 requirement of “mixed\nhardwoods.”39\n C.\n\n38 Id. at 37. Relatedly, Mr. Mittelstadt submits that it was error for the FSA\n\nnot to recalculate the EBI score for Tract 9073 using its new interpretation\nof “mixed hardwoods.” At multiple stages of the review process, how-\never, the agency concluded that there were “no areas of the contract that\nqualify as ‘mixed hardwoods’” under the 2006 requirement. R.19 at 38; see\nalso R.16-4 at 5. Nor does Mr. Mittelstadt contend that he engaged in other\nconservation practices that would contribute to Tract 9073’s EBI score. Ac-\ncordingly, no formal recalculation was needed to conclude that, under the\nnew interpretation, Tract 9073 “no longer had as high an EBI score as it\nonce did.” R.16-6 at 1. The FSA’s failure to formally recalculate the EBI\nscore for Tract 9073 was not an abuse of discretion.\n39 Mr. Mittelstadt’s claim that complying with the FSA’s new interpreta-\ntion of “mixed hardwoods” would have brought him in violation of the\nexisting conservation plan under either Contract 653 or Contract 1710 is\nunsubstantiated. The 1997 conservation plan for Contract 653 instructed:\n CRP-CP11. The existing tree planting will not be man-\n aged for Christmas trees and will be protected from fire\n and from grazing by domestic livestock for the duration\n of the CRP contract.\nR.19-2 at 13. Similarly, the 2006 conservation plan for Contract 1710 stated:\n CRP-CP11. Vegetative Cover, Trees Already Estab-\n lished. … The existing tree planting will not be managed\n for Christmas trees and will be protected from fire and\n from grazing by livestock for the duration of the CRP con-\n tract. Spot treat for weed and brush control … .\nR.19-1 at 39. Nothing in either conservation plan suggests that Mr. Mittel-\nstadt would have violated those terms by planting “two species of hard-\nwoods … together in the same rows.” R.9 ¶ 70.\n\f20 No. 17-2447\n\n We turn next to Mr. Mittelstadt’s contention that the FSA\nerroneously relied on 7 C.F.R. § 1410.31(a) to uphold the\nCCC’s denial of reenrollment under Contract 1710. According\nto Mr. Mittelstadt, this provision “has nothing to do with the\npost-award process through which Tract 9073 was disquali-\nfied from Contract 1710,” and “instead describes the\npre-award process” through which Contract 1710 was\nawarded.40 We cannot accept this argument because it is\npremised on a nonexistent temporal distinction.\n The FSA Handbook instructs that, “[w]hen the producer\nis ready to submit an offer, County Offices shall provide … to\nthe producer” Form CRP-1.41 Once a producer submits an\n\n\n\n40 Appellant’s Br. 35–36.\n41 R.16-1 at 179. As an alternative theory of recovery, Mr. Mittelstadt as-\nserts that, when the agency sent him Form CRP-1 for Contract 1710, it had\naccepted his offer of reenrollment, and there was a binding contract. But\nthat argument ignores the FSA’s express description of Form CRP-1 as a\nform document that constitutes the producer’s “offer” of enrollment in the\nCRP, not the agency’s acceptance of that offer. Further, the FSA Handbook\nstates that “[p]roducers withdrawing CRP-1 during the irrevocable period\nshall be subject to liquidated damages,” id., and Form CRP-1 reiterates\nthat, by signing the form, the participant “agrees to pay such liquidated\ndamages … if the Participant withdraws prior to CCC acceptance or rejec-\ntion.” R.19-1 at 45. These provisions confirm that Form CRP-1 constitutes\nan offer to be considered by the CCC, not a binding contract. Given that\nthe regulations similarly require that a producer pay liquidated damages\nto the CCC if he “revokes an offer during the period in which the offer is\nirrevocable,” 7 C.F.R. § 1410.32(c)(2) (emphases added), the prospect of\nhaving to pay liquidated damages provides no support to Mr. Mittel-\nstadt’s position that a binding contract existed. Finally, the FSA Handbook\nrequires that Form CRP-1 “be signed and dated by all required signato-\nries,” R.16-2 at 183, but Mr. Mittelstadt never received a countersigned\n\fNo. 17-2447 21\n\noffer on Form CRP-1, the FSA County Committee “shall sub-\nmit all offers … to the national level for review and evalua-\ntion.”42 The regulation at issue, 7 C.F.R. § 1410.31(a), confers\n“sole discretion” upon the CCC to evaluate offers of enroll-\nment in the CRP “on a competitive basis in which the offers\nselected will be those where the greatest environmental ben-\nefits relative to cost are generated.” The regulations further\nprovide that, “[i]n order to be eligible to be placed in the CRP,\nland must” qualify under an enumerated eligibility category,\nsuch as “[a]creage enrolled in CRP during the final year of the\nCRP contract.” 7 C.F.R. § 1410.6(a).\n In 2006, when the FSA County Committee concluded that\nthe 1997 eligibility determination had been incorrect and ter-\nminated Contract 653, Tract 9073 no longer qualified as eligi-\nble “[a]creage enrolled in CRP.” Id. However, when the Dep-\nuty Director of the National Appeals Division reversed that\ndetermination and reinstated Contract 653, the effect of his or-\nder was only to reinstate Tract 9073’s ground for eligibility\nunder 7 C.F.R. § 1410.6(a)(3).43 Mr. Mittelstadt’s bid to\n\n\ncopy of Contract 1710. Because there was no binding contract, Mr. Mittel-\nstadt cannot state a claim for breach.\n42 R.16-1 at 185 (emphasis omitted).\n43 Mr. Mittelstadt further contends that the Deputy Director’s ruling on\nthe reenrollment of Contract 1710 was improper because, at the pre-hear-\ning before the Hearing Officer, “the parties stipulated that the sole issue\non appeal was the erroneous eligibility determination that was made in\n1997.” R.16-5 at 4. The Hearing Officer found that the “FSA correctly de-\ntermined that Appellant did not establish a mixed stand of hardwood\ntrees on the contract acreage” and that “Appellant based his request for\nCRP reenrollment under contract 1710 on the same inaccurate EBI scoring\nused in CRP contract 653.” R.16-4 at 5–6. Accordingly, the Hearing Officer\ndetermined both that “FSA correctly terminated contract 653 because of\n\f22 No. 17-2447\n\nreenroll was still subject to the CCC’s discretion to evaluate\nhis offer based on its relative competitiveness, see 7 C.F.R.\n§ 1410.31(a), and actual reenrollment required CCC approval.\nThe FSA Director recognized precisely this degree of discre-\ntion when he denied Mr. Mittelstadt’s request for reconsider-\nation, explaining that “agency regulations at 7 C.F.R.\n§ 1410.31(a) provide that acceptance or rejection of any offer\nof land by an owner for CRP participation shall be in the sole\ndiscretion of the CCC and offers may be rejected for any rea-\nson as determined to accomplish the goals of the program.”44\nAccording to the Director, “[w]hile not cited in the determi-\nnation, this regulation was the basis” for the Deputy Direc-\ntor’s decision.45 It was no abuse of discretion for the FSA to\nrely on 7 C.F.R. § 1410.31(a) to uphold the CCC’s decision.\n Relatedly, Mr. Mittelstadt claims that the agency was first\nrequired to change his conservation plan to comply with its\nnew interpretation of “mixed hardwoods” and that, if he “re-\nfused to conform Tract 9073 to the corrected Conservation\n\n\n\n\nan inaccurate EBI score” and that FSA “correctly denied Appellant’s reen-\nrollment request under CRP contract 1710.” Id. at 6. Thus, the Deputy Di-\nrector’s review of the Hearing Officer’s decision necessarily encompassed\nboth the Hearing Officer’s findings with regard to the termination of Con-\ntract 653 and the reenrollment under Contract 1710, which were “based”\non “the same inaccurate EBI scor[e].” Id. The district court correctly con-\ncluded that “the parties’ stipulation … ma[de] little practical sense on its\nface,” R.25 at 18, given that the Deputy Director could not properly review\nthe Hearing Officer’s decision without considering the grounds for that\ndecision in full.\n44 R.16-6 at 1.\n45 Id.\n\fNo. 17-2447 23\n\nPlan, the Tract would then be in violation.”46 But Mr. Mittel-\nstadt confuses the order of procedure required. The FSA\nHandbook instructs that, “[i]f [an] offer is determined ac-\nceptable,” then “a conservation plan must be developed by\nNRCS … and approved by the Conservation District before\nCRP-1 can be approved” by the FSA County Committee.47 Be-\ncause the FSA never accepted Mr. Mittelstadt’s offer to reen-\nroll his land, the agency was under no obligation to develop\na new conservation plan for Tract 9073 before denying reen-\nrollment. The FSA’s course of proceeding simply was not an\nabuse of discretion.\n Conclusion\n For the foregoing reasons, we affirm the judgment of the\ndistrict court.\n AFFIRMED\n\n\n\n\n46 Appellant’s Br. 49 (emphasis in original).\n47 R.16-1 at 186.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4358996/", "author_raw": "Kenneth Francis Ripple"}]}	RIPPLE	SYKES	SCUDDER	1		{"RIPPLE": ", Circuit", "SYKES": ", Circuit", "SCUDDER": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4581743/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Mark Mittelstadt v. Sonny Perdue\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-15\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-2447\nMARK MITTELSTADT,\n Plaintiff-Appellant,\n v.\n\nSONNY PERDUE, Secretary of Agriculture,\n Defendant-Appellee.\n ____________________\n\n Appeal from the United States District Court for the\n Western District of Wisconsin.\n No. 3:15-cv-00725-wmc — William M. Conley, Judge.\n ____________________\n\n ARGUED SEPTEMBER 28, 2018 — DECIDED JANUARY 15, 2019\n ____________________\n\n Before RIPPLE, SYKES, and SCUDDER, Circuit Judges.\n RIPPLE, Circuit Judge. Mark Mittelstadt owned a tract of\nland in Richland County, Wisconsin, that was enrolled in the\nConservation Reserve Program (“CRP”), administered by the\nUnited States Department of Agriculture (“USDA”), from\n1987 to 2006. Participants in the CRP agree to remove environ-\nmentally sensitive land from agricultural production in return\nfor annual rental payments from the USDA. In 2006, the\nagency denied Mr. Mittelstadt’s application to reenroll his\n\f2 No. 17-2447\n\nland in the CRP. After exhausting his administrative appeals,\nhe brought this action against the Secretary of the USDA (“the\nSecretary”). He asserted one claim under Section 702 of the\nAdministrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq.,\nchallenging the Secretary’s final decision denying reenroll-\nment, and one common law claim for breach of contract.\nMr. Mittelstadt moved for summary judgment in the district\ncourt, seeking an order directing reenrollment of his land in\nthe CRP and awarding monetary relief for the alleged breach\nof contract. The district court denied his motion for summary\njudgment, aﬃrmed the Secretary’s rulings, and entered judg-\nment in favor of the Secretary on Mr. Mittelstadt’s APA and\nbreach of contract claims. Mr. Mittelstadt now appeals the\ndistrict court’s decision.\n Under the regulations governing the CRP, the USDA has\nbroad discretion to evaluate oﬀers of enrollment in the pro-\ngram on a competitive basis by considering the environmen-\ntal benefits of a producer’s land relative to its costs. Given the\nagency’s wide latitude, we conclude that the Farm Services\nAgency (“FSA”) did not abuse its discretion when it denied\nreenrollment of Mr. Mittelstadt’s land. Moreover, because he\nnever entered a new contract with the agency, there was no\nbreach of contract. We therefore aﬃrm the judgment of the\ndistrict court.\n I\n A.\n In 1988, Mr. Mittelstadt purchased a tract of land in Rich-\nland County, Wisconsin (“Tract 9073”), that was subject to a\nCRP contract for the period 1987 through 1996. To comply\nwith a revised conservation plan, Mr. Mittelstadt planted\n\fNo. 17-2447 3\n\nwhite pine, walnut, and red oak trees on the land in 1989. A\nCRP review later that year determined that Mr. Mittelstadt\nhad completed all items in the conservation plan. Another\nCRP maintenance inspection in 1995 found no problems with\nthe land. In 1996, the Commodity Credit Corporation\n(“CCC”) extended the existing CRP contract for one year, to\nrun from October 1, 1996, through September 30, 1997.\n In 1997, Mr. Mittelstadt applied to reenroll his land in the\nprogram, stating on the application that Tract 9073 had a con-\nservation practice of CP11, or “vegetative cover—trees—al-\nready established.”1 Relying on the information in his appli-\ncation, the FSA assigned his land an environmental benefits\nindex (“EBI”) score of fifty points.2 This EBI score meant that\nthe conservation practices on the land included “[p]ine estab-\nlished with less than 500 trees per acre with strips of native\nherbaceous and shrub plantings best suited for wildlife in the\narea, mixed hardwoods established, or longleaf pine.”3 The\nFSA approved the new contract (“Contract 653”), to be effec-\ntive from 1998 to 2007. A 2002 field status review of the prop-\nerty found no violations, noting, “Trees are growing and look-\ning good.”4\n In 2006, Mr. Mittelstadt began the reenrollment process by\npaying for a spot-check inspection of Tract 9073. The inspec-\ntion found no violations, noting “62.9 CP11 Tre[es] … already\n\n1 R.16-5 at 2.\n2 The FSA relies on a national EBI to rank offers for enrollment in the CRP\n\nbased on their estimated environmental benefits and costs. See R.16-1 at\n679.\n3 R.16-5 at 3.\n4 Id.\n\f4 No. 17-2447\n\nest” and “good.”5 The Natural Resources Conservation Ser-\nvice (“NRCS”) sent Mr. Mittelstadt Contract 1710, a form CRP\ncontract for the term October 1, 2007, to September 30, 2017,\nwhich Mr. Mittelstadt signed on July 26, 2006.6 On August 19,\n2006, Mr. Mittelstadt signed a revised version of the contract,\namended to reflect the correct acreage of Tract 9073.\n In August 2006, the NRCS sent Mr. Mittelstadt a conserva-\ntion plan for Tract 9073. The plan “identified the conservation\npractice as CP11, a ‘mixed stand (2 species) of hardwoods best\nsuited for wildlife in the area.’”7 Mr. Mittelstadt signed the\nplan on August 24, 2006, and, on September 1, 2006, the Rich-\nland County Conservation Department approved it. The\nNRCS signed off on the plan on September 5, 2006, as did the\nFSA on September 13, 2006.\n B.\n On or around September 13, 2006, Jared Reuter, the\nCounty Executive Director of the Richland County FSA,\nsigned the amended version of Contract 1710 on behalf of the\nCCC. Reuter’s signature was later whited out,8 however, and\nMr. Mittelstadt never received a countersigned copy of Con-\ntract 1710. On September 14 and 16, 2006, Reuter conducted\ntwo maintenance inspections of Mr. Mittelstadt’s land. By let-\nter dated September 21, 2006, the FSA County Committee\n\n\n5 Id.\n6 The CCC never countersigned the original version of Contract 1710.\n7 R.16-5 at 3.\n8 The Secretary contends that Reuter likely whited out his signature after\ninspecting Mr. Mittelstadt’s property and discovering CRP violations on\nTract 9073. Appellee’s Br. 8 n.2.\n\fNo. 17-2447 5\n\nnotified Mr. Mittelstadt that the inspections revealed CRP vi-\nolations on Tract 9073. Aerial photos taken in 2005 showed\nthat three areas of the acreage had “suffered tree loss that the\nfield reporter did not originally report during the re-enroll-\nment compliance check.”9 Reuter also found that very few red\noak trees “were present from the original planting,” and\n“[o]ne area with the most red oak present had less than 100\nplanted red oak trees present.”10 The letter warned that “[v]io-\nlations of this type can result in termination of the acreage in-\nvolved” and that Mr. Mittelstadt’s “re-enrollment/extension\noffer cannot be approved until this issue is settled.”11\n At a hearing on October 25, 2006, the FSA County Com-\nmittee discussed the issues raised by the inspections, and the\nnext day, the committee sent Mr. Mittelstadt a letter terminat-\ning Contract 653. The committee explained that, in 1997,\nMr. Mittelstadt’s acreage did not have “a ‘mixed hardwood\nstand of trees (more than one species of hardwood trees)’ be-\ncause of the ‘failed population of red oak.’”12 As a result, the\nFSA had assigned incorrectly an EBI score of fifty points upon\nreenrollment of the land in the CRP. Further, to “be eligible to\nbe placed in the CRP,” land must qualify under a covered cat-\negory, such as “[a]creage enrolled in CRP during the final\nyear of the CRP contract.” 7 C.F.R. § 1410.6(a). Because\nMr. Mittelstadt’s land was enrolled improperly under\n\n\n\n\n9 R.16-5 at 3.\n10 R.19 at 103 (Letter from Reuter to Mr. Mittelstadt (Sept. 21, 2006)).\n11 Id. at 103–04.\n12 R.16-5 at 4.\n\f6 No. 17-2447\n\nContract 653 in 1997, the committee also found it was not eli-\ngible for reenrollment under Contract 1710 in 2006.\n Mr. Mittelstadt appealed the County Committee’s deci-\nsion to the Wisconsin State FSA Committee. By letter dated\nAugust 13, 2007, the State FSA Committee upheld the County\nCommittee’s decision, finding that “[t]here are no areas of the\ncontract that qualify as ‘mixed hardwoods.’”13 The State Com-\nmittee concluded that “the scoring of the contract offer in 1997\nwas incorrect,” and that the land was “also ineligible for\nre-enrollment through the re-enrollment and extension pro-\ncess that was conducted in 2006 because the current contract\nwas not in compliance.”14\n C.\n Mr. Mittelstadt sought review from the USDA’s National\nAppeals Division, where the parties stipulated that the sole\nissue on appeal was the propriety of the eligibility determina-\ntion with respect to Contract 653 that had been made in 1997.\nThe Hearing Officer upheld the State Committee’s decision,\nbut, on further review, the Deputy Director reversed the de-\ncision. Because “the preponderance of the evidence show[ed]\nthat the placement of trees on Appellant’s land satisfied the\n‘mixed hardwoods established’ requirement for a CP11 prac-\ntice and warranted the assigned EBI score of fifty points,” the\nDeputy Director ordered the FSA to reinstate Contract 653.15\nHowever, the Deputy Director found no error with respect to\nthe FSA’s denial of reenrollment under Contract 1710. Given\n\n\n13 R.19 at 38.\n14 Id.\n15 R.16-5 at 7.\n\fNo. 17-2447 7\n\nthat Mr. Mittelstadt’s land “may not meet new standards such\nas a new definition of mixed hardwood stand or FSA other-\nwise may have a legitimate reason for not extending re-enroll-\nment,” the decision “was supported by applicable regulations\nand substantial evidence in the record.”16\n Mr. Mittelstadt sought reconsideration of the Deputy Di-\nrector’s decision, which the FSA Director denied. The Director\nexplained that “agency regulations at 7 C.F.R. § 1410.31(a)\nprovide that acceptance or rejection of any offer of land by an\nowner for CRP participation shall be in the sole discretion of\nthe CCC and offers may be rejected for any reason as deter-\nmined to accomplish the goals of the program.”17 According\nto the Director, “[w]hile not cited in the determination, this\nregulation was the basis” for the Deputy Director’s decision.18\nThus, “[o]nce FSA concluded that the property no longer had\nas high an EBI score as it once did, FSA could use that score\nto decide that funding a continuation of enrollment of the\nproperty was not as high a priority as funding other CRP con-\ntracts.”19\n\n\n D.\n Having exhausted his administrative appeals, Mr. Mittel-\nstadt filed a complaint in the district court. He asserted a\nclaim under the APA, contending that the decision denying\n\n\n16 Id.\n17 R.16-6 at 1.\n18 Id.\n19 Id.\n\f8 No. 17-2447\n\nhis application for reenrollment under Contract 1710 was ar-\nbitrary, capricious, and unlawful. In the alternative, he set out\na common law claim, asserting that the agency breached its\nobligations under Contract 1710. He later moved for sum-\nmary judgment on both counts of the complaint.\n The district court denied Mr. Mittelstadt’s motion for\nsummary judgment and affirmed the agency’s final decision.\nFirst, the district court rejected Mr. Mittelstadt’s contention\nthat the Deputy Director of the National Appeals Division\nhad abused his discretion by upholding the denial of reenroll-\nment under Contract 1710 despite the parties’ stipulation that\nthe sole issue on appeal was the propriety of the 1997 eligibil-\nity determination. Second, the district court rejected Mr. Mit-\ntelstadt’s assertion that the USDA had abused its discretion\nby denying reenrollment of his land in 2007 based on a con-\nservation standard adopted in 2006. Third, the district court\ndismissed Mr. Mittelstadt’s common law claim for breach of\ncontract, determining that no contract existed to support that\nclaim. The district court then entered judgment in favor of the\nSecretary on Mr. Mittelstadt’s APA and breach of contract\nclaims. Mr. Mittelstadt timely sought review of the district\ncourt’s decision.20\n\n\n20 The district court had jurisdiction over this case under the judicial re-\nview provision of the APA, which waives sovereign immunity for actions\n“seeking relief other than money damages and stating a claim that an\nagency or an officer or employee thereof acted or failed to act in an official\ncapacity or under color of legal authority.” 5 U.S.C. § 702. For purposes of\n§ 702, the Supreme Court has held that the mere “fact that a judicial rem-\nedy may require one party to pay money to another is not a sufficient rea-\nson to characterize the relief as ‘money damages.’” Bowen v. Massachusetts,\n487 U.S. 879, 893 (1988). Instead, the critical question is whether the plain-\ntiff seeks substitute or specific relief. Whereas “[d]amages are given to the\n\fNo. 17-2447 9\n\n II\n DISCUSSION\n We review the district court’s decision on summary judg-\nment de novo. Stable Invs. P’ship v. Vilsack, 775 F.3d 910, 915\n(7th Cir. 2015). In “an action for review of final action taken\nby a federal administrative agency, the ultimate question is\nwhether that action is ‘arbitrary, capricious, an abuse of dis-\ncretion, or otherwise not in accordance with the law.’” Id. (ci-\ntation omitted) (quoting 5 U.S.C. § 706(2)). To “answer[] that\nquestion, we rely on the same administrative record that was\n\nplaintiff to substitute for a suffered loss,” specific remedies “attempt to\ngive the plaintiff the very thing to which he was entitled.” Id. at 895 (quot-\ning Maryland Dep’t of Human Res. v. Dep’t of Health & Human Servs., 763\nF.2d 1441, 1446 (D.C. Cir. 1985)) (emphasis in original). Here, Mr. Mittel-\nstadt’s request for an order directing the Secretary “to pay all amounts due\nand owing under Contract 1710,” R.3 ¶ 152, was not a request for “money\ndamages” because Mr. Mittelstadt sought payments “not as compensation\nfor [the Secretary’s] failure to perform some other obligation,” but as “the\nvery thing to which he was entitled” under the CRP. Columbus Reg’l Hosp.\nv. FEMA, 708 F.3d 893, 896 (7th Cir. 2013) (quoting Bowen, 487 U.S. at 895).\nMr. Mittelstadt’s APA claim challenging the Secretary’s decision denying\nreenrollment seeks “relief other than money damages,” and is “therefore\nwithin the waiver of sovereign immunity in section 702.” Maryland Dep’t\nof Human Res. v. Dep’t of Health & Human Servs., 763 F.2d 1441, 1448 (D.C.\nCir. 1985) (quoting 5 U.S.C. § 702). Additionally, because his breach of con-\ntract claim is, at base, an alternative request for administrative relief di-\nrecting the Secretary to make the payments to which Mr. Mittelstadt\nwould have been entitled under Contract 1710, this claim is simply a dif-\nferent way of characterizing his request for “the very thing to which he\nwas entitled” under the CRP. Columbus Reg’l Hosp., 708 F.3d at 896 (quot-\ning Bowen, 487 U.S. at 895). Jurisdiction over Mr. Mittelstadt’s breach of\ncontract claim was therefore proper under § 702. We have jurisdiction over\nthis appeal from the district court’s entry of summary judgment under 28\nU.S.C. § 1291.\n\f10 No. 17-2447\n\nbefore the district court and render an independent judgment\nas to whether the agency acted unreasonably.” Id. Under this\n“deferential standard,” we “will uphold a decision of less\nthan ideal clarity if the agency’s path may reasonably be dis-\ncerned.” St. Clair v. Sec’y of Navy, 155 F.3d 848, 851 (7th Cir.\n1998) (internal quotation marks omitted).\n A.\n We begin with an examination of the governing statutory\nscheme. As part of the Food Security Act of 1985,21 Congress\nestablished the CRP. This program incentivizes landowners\nto remove environmentally sensitive land from agricultural\nproduction in return for annual rental payments from the\nUSDA. S. Rep. 99-145, at 1971 (1985). The impetus for the de-\nvelopment of the CRP was an increased concern about soil\nerosion. Id. In 1982, the National Resources Inventory22 had\ndetermined that almost fifty percent of erosion occurred on\nonly ten percent of cropland in the United States. Id. The Soil\nConservation Service projected that the CRP would “reduce\nwind and water erosion on these acres by an average of nearly\n20 tons per acre per year.” Id. (capitalization omitted). Ac-\ncordingly, Congress directed the Secretary to “formulate and\ncarry out” the CRP by awarding contracts to encourage land-\nowners “to conserve and improve the soil, water, and wildlife\nresources of such land and to address issues raised by State,\n\n\n21 Pub. L. No. 99-198, §§ 1201, 1231–1236, 99 Stat. 1354, 1504–05, 1509–14\n(codified as amended at 16 U.S.C. §§ 3801, 3831–3836).\n22 Administered by the NRCS, the National Resources Inventory is a “sta-\ntistically-based survey” designed to “assess conditions and trends of soil,\nwater, and related resources on nonfederal lands in the United States.” 7\nC.F.R. § 601.1(f)(1)(v).\n\fNo. 17-2447 11\n\nregional, and national conservation initiatives.” 16 U.S.C.\n§ 3831(a).\n The USDA oversees the CRP, with funding provided by\nthe CCC, an entity owned and operated by the government.\n16 U.S.C. § 3841(a). Together with the FSA, the CCC is respon-\nsible for implementing the regulations governing the CRP. 7\nC.F.R. § 1410.1(a). The Agricultural Stabilization and Conser-\nvation Service, which operates through state and county com-\nmittees, administers the CRP on behalf of the CCC.\n The FSA and the Agricultural Stabilization and Conserva-\ntion Service also have issued, for use by the state and county\ncommittees, handbooks detailing the procedures and require-\nments for implementing and participating in the CRP. These\nhandbooks, which were not published in the Federal Register\nand therefore were not promulgated according to the require-\nments of the APA, are interpretive only and do not have the\nforce or effect of official regulations.23\n The statute limits the type and total acreage of land that\ncan be enrolled in the CRP. Land eligible for enrollment in-\ncludes certain highly erodible cropland, marginal pasture\nland, grasslands, and, at the Secretary’s determination, other-\nwise ineligible cropland that poses an environmental threat.\n16 U.S.C. § 3831(b). During fiscal year 2018, the Secretary\ncould maintain no more than twenty-four million acres of\nland in the program. Id. § 3831(d)(1)(E). Additionally, the\n\n\n23 See Westcott v. U.S. Dep’t of Agric., 765 F.2d 121, 122 (8th Cir. 1985) (per\ncuriam); see also Thomas v. Cty. Office Comm. of Cameron Cty., 327 F. Supp.\n1244, 1253 (S.D. Tex. 1971); Graham v. Lawrimore, 185 F. Supp. 761, 764\n(E.D.S.C. 1960); Hawkins v. State Agric. Stabilization & Conservation Comm.,\n149 F. Supp. 681, 686 (S.D. Tex. 1957).\n\f12 No. 17-2447\n\nSecretary cannot enroll more than twenty-five percent of the\ncropland in any county unless he determines that enrolling a\nlarger percentage “would not adversely affect the local econ-\nomy.” 16 U.S.C. § 3844(f).\n Landowners who wish to participate in the CRP must en-\ngage in a bid system. According to the legislative history, the\nstatute utilizes this system because “the competitive bid sys-\ntem is the most cost-effective means of identifying our least\nproductive and most erosion prone acreage, while at the same\ntime minimizing cost to the U.S. Treasury.” S. Rep. 99-145, at\n1971 (capitalization omitted). Congress determines, for a\ngiven year, the maximum acreage permitted to be enrolled in\nthe CRP each time it amends the authorizing statute.24 Indi-\nvidual rental payments are capped at $50,000 per year. 16\nU.S.C. § 3834(g)(1).\n To participate in the bidding process, landowners submit\noffers to the CCC indicating “the amounts they are willing to\naccept as rental payments to enroll their acreage in the CRP.”\n7 C.F.R. § 1410.31(a). The CCC may evaluate offers “on a com-\npetitive basis in which the offers selected will be those where\nthe greatest environmental benefits relative to cost are gener-\nated.” Id. In evaluating offers, the agency employs a national\nEBI, which “provides a relative ranking of estimated environ-\nmental benefits and cost for land offered for CRP.”25 “Ac-\nceptance or rejection of any offer” is “in the sole discretion of\nthe CCC[,] and offers may be rejected for any reason as\n\n\n24 See Agriculture Improvement Act of 2018, Pub. L. No. 115-334, §\n 2201(c)\n(amending 16 U.S.C. § 3831(d)); Agricultural Act of 2014, Pub. L. No.\n113-79, § 2001(d) (same).\n25 R.16-1 at 679.\n\fNo. 17-2447 13\n\ndetermined needed to accomplish the goals of CRP.” 7 C.F.R.\n§ 1410.31(a). When evaluating contract offers, the CCC may\nconsider such factors as soil erosion, water quality, wildlife\nbenefits, soil productivity, the “[l]ikelihood that enrolled land\nwill remain in non-agriculture use beyond the contract pe-\nriod,” air quality, and the cost of enrolling the land in the CRP.\nId. § 1410.31(b). Offers to enroll in the CRP are “irrevocable\nfor such period as is determined and announced by the Dep-\nuty Administrator” of the FSA. 7 C.F.R. § 1410.32(c)(2). If an\napplicant revokes his offer during the irrevocable period, he\nmay be liable to the CCC for liquidated damages. Id.\n Following CCC approval, the USDA awards CRP con-\ntracts for terms between ten and fifteen years, depending on\nthe type of land involved. 16 U.S.C. § 3831(e)(1).26 In return\nfor converting their land to less intensive uses, landowners\nreceive annual rental payments. 16 U.S.C. § 3833(a)(2). The\namounts of these payments are determined when the land-\nowners submit bids for CRP contracts. 16 U.S.C.\n§ 3834(d)(2)(A)(i).\n Participants in the CRP must obtain and implement a con-\nservation plan outlining required conservation practices for\nthe enrolled land. The conservation plan is considered part of\nthe CRP contract, 7 C.F.R. § 1410.20(a)(2), and must be ap-\nproved by the conservation district in which the land is\n\n26 Specifically, “[c]ontracts with land devoted to hardwood trees, shelter-\nbelts, windbreaks, or wildlife corridors will be for a term of 10 years to 15\nyears, as requested by the applicant.” 7 C.F.R. § 1410.7(a). By contrast,\n“[o]ther general and continuous signup contracts … will be for a term of\n10 to 15 years, as determined by the Deputy Administrator.” Id.\n§ 1410.7(b). “Grassland signup contracts will be for a term of 15 years.” Id.\n§ 1410.7(c).\n\f14 No. 17-2447\n\nlocated, 7 C.F.R. §§ 1410.3(b), 1410.22(a). Landowners must\n“[e]stablish and maintain” the required vegetative cover and\nthe required practices on the enrolled land, and must “take\nother actions that may be required by CCC to achieve the de-\nsired environmental benefits and to maintain the productive\ncapability of the soil throughout the contract period.” 7 C.F.R.\n§ 1410.20(a)(6). All conservation plans and revisions to such\nplans are subject to the approval of the Deputy Administrator\nof the FSA. 7 C.F.R. § 1410.22(e). Subject to fund availability,\nthe CCC must “[s]hare up to 50 percent of the cost” of estab-\nlishing conservation practices with CRP participants. 7 C.F.R.\n§ 1410.21(a). Rental payments combined with cost-sharing are\ndesigned to assure landowners of a return on the land with-\nout having to risk large sums of money to adopt conservation\npractices.27\n The CCC retains the authority to modify or terminate an\nexisting CRP contract. Specifically, the CCC can modify a CRP\ncontract if the Deputy Administrator determines that,\nthrough no fault of the participant, the “installed practice\nfailed to adequately provide for the desired environmental\nbenefit” or “deteriorated,” and that “[a]nother practice will\nachieve at least the same level of environmental benefit.” 7\nC.F.R. § 1410.33(b). Additionally, the CCC can terminate a\nCRP contract before expiration of the term if, among other\ngrounds, “[t]he participant is not in compliance with the\nterms and conditions of the contract,” “[t]he CRP practice fails\nor is not established after a certain time period,” the “contract\nwas approved based on erroneous eligibility determina-\ntions,” or “[t]he Deputy Administrator determines that such\n\n27See Michael W. Strain, Student Survey, The Conservation Reserve: A Bold\nStep Towards the Future, 31 S.D. L. Rev. 523, 529 (1986).\n\fNo. 17-2447 15\n\na termination is needed in the public interest, or is otherwise\nnecessary and appropriate to further the goals of CRP.” 7\nC.F.R. § 1410.32(f).\n This statutory and regulatory scheme places considerable\ndiscretion over CRP participation in the hands of the FSA. The\nimplementing regulations afford the agency broad discretion\nto evaluate offers for enrollment and reenrollment in the pro-\ngram:\n [O]ffers may, to the extent practicable, be evalu-\n ated on a competitive basis in which the offers\n selected will be those where the greatest envi-\n ronmental benefits relative to cost are gener-\n ated … . Acceptance or rejection of any offer,\n however, shall be in the sole discretion of the\n CCC and offers may be rejected for any reason\n as determined needed to accomplish the goals\n of CRP.\n7 C.F.R. § 1410.31(a). Although we have had no occasion to\ndescribe the scope of discretion under this particular regula-\ntion, our cases involving other statutory and regulatory\ngrants of “sole discretion” confirm that this language confers\nwide latitude upon the relevant actor.28\n\n\n\n28 See, e.g., Mahler v. U.S. Forest Serv., 128 F.3d 573, 577–78 (7th Cir. 1997)\n(concluding, where the Rescissions Act of 1995 required the Secretary of\nAgriculture to prepare an environmental assessment and a biological eval-\nuation “at the sole discretion of the Secretary concerned and to the extent\nthat the Secretary concerned considers appropriate and feasible,” that\n“this language clearly authorize[d] the Secretary to permit a shorter pe-\nriod for public comment than that usually required under the Public Par-\nticipation Law” (emphasis added)).\n\f16 No. 17-2447\n\n B.\n With this statutory and regulatory background in mind,\nwe turn first to Mr. Mittelstadt’s contention that the agency\nabused its discretion because it had not defined “mixed hard-\nwoods” when it considered his application for reenrollment\nunder Contract 653 in 1997 or under Contract 1710 in 2006.\nWe also consider his related argument that the agency’s ap-\nplication of a new interpretation of “mixed hardwoods,”\nadopted in 2006, when it denied his request for reenrollment\nunder Contract 1710 was an abuse of discretion.\n Here, the Secretary “readily acknowledge[d] that,\nthroughout the entire relevant time period, there was never a\npublished definition of ‘mixed hardwoods’ in FSA’s Hand-\nbook, in the regulations, or elsewhere.”29 Nevertheless, to\nevaluate Mr. Mittelstadt’s 2006 application for reenrollment,\nthe agency interpreted “mixed hardwoods” to mean “two\nspecies of hardwoods planted together in the same rows.”30\nGiven the great discretion vested in the Secretary to obtain\noptimal environmental return for every dollar appropriated\nfor the CRP, the FSA clearly had the capability to tighten the\ndefinition of “mixed hardwoods” for new contract periods.31\nThe very nature of the program affords the Secretary the au-\nthority to change the terms and conditions of participation in\n\n\n29 Appellee’s Br. 35.\n30 R.9 ¶ 70.\n31 Cf. Paragon Health Network, Inc. v. Thompson, 251 F.3d 1141, 1147 (7th Cir.\n\n2001) (noting that “Congress is presumed to have delegated the primary\npower to fill regulatory ambiguities to the agency, and courts owe defer-\nence to agency decisions that clarify a regulation regardless of the fact that\nthe agency waited to exercise this power”).\n\fNo. 17-2447 17\n\norder to achieve, given the resources available, the most ad-\nvantageous result. The USDA’s policy, therefore, was to\nmaintain a competitive program that allowed the Secretary to\nselect, based on currently available funding, the best land\navailable to attain the goals of the program. The agency did\nnot have to contract for the same conservation measures at the\nsame price upon each reenrollment.\n The Secretary’s decision to limit program participation to\nland with a different pattern of hardwoods, a pattern that he\ndeemed more favorable to the conservation ends of the pro-\ngram, cannot be characterized fairly as the reversal of an\nagency policy. Because there was no previous specific defini-\ntion applicable to all future contracts set forth in the regula-\ntions or even in the FSA Handbook, the Secretary did not re-\nverse a governing policy.32 For the same reason, the 2006 re-\nquirement cannot be characterized as such “a sudden and un-\nexpected change in agency policy” as to be arbitrary, capri-\ncious, or an abuse of discretion.33 The new requirement is\ngrounded firmly in the governing statutes and regulations\nand implements the Secretary’s decision that such a criterion\n\n\n32 Cf. Friends of the Boundary Waters Wilderness v. Dombeck, 164 F.3d 1115,\n1123 (8th Cir. 1999) (holding that, since no prior Forest Service or USDA\nplans provided a definition of the term “guest” for purposes of motorboat\nuse restrictions, the definition newly provided by the Forest Service to\navoid abuses of the motorboat use quota system could not “be considered\nas reversing a prior agency policy” and was entitled to deference).\n33 See id. (observing that “‘the mere fact that an agency interpretation con-\n\ntradicts a prior agency position is not fatal,’ unless the new position is a\nsudden and unexpected change in agency policy that can be characterized\nas arbitrary, capricious, or an abuse of discretion” (quoting Smiley v. Citi-\nbank (S.D.), N.A., 517 U.S. 735, 742 (1996)).\n\f18 No. 17-2447\n\nwill ensure that the available government funds are imple-\nmented in the most effective manner.34\n Mr. Mittelstadt conceded that “there were never areas of\n[his] acreage planted to more than one species of hard-\nwood.”35 He had understood that “the terminology ‘mixed\nhardwoods’ mean[t] only 1 hardwood species ‘mixed’ with\npine.”36 Accordingly, in 1989, he planted three sections of\ntrees on his land: (1) walnut and white pine trees, (2) red oak\nand white pine trees, and (3) solely white pine trees.37 Pine\ntrees are softwoods, whereas walnut and red oak trees are\nhardwoods, so that no section he planted had more than one\nspecies of hardwood tree mixed with pine. It follows that, by\n2006, his acreage did not meet the FSA’s new requirement,\nwhich required that “there be at least 2 species of hardwoods\n\n34 Mr. Mittelstadt asserts that the FSA was “affirmatively required” to in-\nform him of the new interpretation of “mixed hardwoods” and to “help[]\nhim craft a new plan that would elevate [Tract 9073’s] EBI score by chang-\ning the arrangement of hardwood species.” Appellant’s Br. 32. He relies\non the FSA Handbook, which states that the “FSA will review EBI scoring\nparameters with the producers and encourage the planting of cover types\nand conservation measures, if appropriate, that will provide higher envi-\nronmental benefits.” R.16-1 at 679. However, the agency did not discover\nthat Mr. Mittelstadt’s land did not meet the new requirement for “mixed\nhardwoods” until he began the reenrollment process, at which point the\nmaintenance inspections revealed CRP violations. The agency informed\nhim that, to reenroll his land, he could cure the violations by planting two\nor more species of hardwood trees mixed with a softwood tree. The FSA\nHandbook, which does not confer a legal right on Mr. Mittelstadt to par-\nticipate in the program, did not require more.\n35 R.19 at 36–37.\n36 Id. at 37.\n37 Id. at 28.\n\fNo. 17-2447 19\n\nmixed into the rows of hardwoods.”38 The FSA therefore did\nnot abuse its discretion when it determined that Mr. Mittel-\nstadt’s land did not satisfy the 2006 requirement of “mixed\nhardwoods.”39\n C.\n\n38 Id. at 37. Relatedly, Mr. Mittelstadt submits that it was error for the FSA\n\nnot to recalculate the EBI score for Tract 9073 using its new interpretation\nof “mixed hardwoods.” At multiple stages of the review process, how-\never, the agency concluded that there were “no areas of the contract that\nqualify as ‘mixed hardwoods’” under the 2006 requirement. R.19 at 38; see\nalso R.16-4 at 5. Nor does Mr. Mittelstadt contend that he engaged in other\nconservation practices that would contribute to Tract 9073’s EBI score. Ac-\ncordingly, no formal recalculation was needed to conclude that, under the\nnew interpretation, Tract 9073 “no longer had as high an EBI score as it\nonce did.” R.16-6 at 1. The FSA’s failure to formally recalculate the EBI\nscore for Tract 9073 was not an abuse of discretion.\n39 Mr. Mittelstadt’s claim that complying with the FSA’s new interpreta-\ntion of “mixed hardwoods” would have brought him in violation of the\nexisting conservation plan under either Contract 653 or Contract 1710 is\nunsubstantiated. The 1997 conservation plan for Contract 653 instructed:\n CRP-CP11. The existing tree planting will not be man-\n aged for Christmas trees and will be protected from fire\n and from grazing by domestic livestock for the duration\n of the CRP contract.\nR.19-2 at 13. Similarly, the 2006 conservation plan for Contract 1710 stated:\n CRP-CP11. Vegetative Cover, Trees Already Estab-\n lished. … The existing tree planting will not be managed\n for Christmas trees and will be protected from fire and\n from grazing by livestock for the duration of the CRP con-\n tract. Spot treat for weed and brush control … .\nR.19-1 at 39. Nothing in either conservation plan suggests that Mr. Mittel-\nstadt would have violated those terms by planting “two species of hard-\nwoods … together in the same rows.” R.9 ¶ 70.\n\f20 No. 17-2447\n\n We turn next to Mr. Mittelstadt’s contention that the FSA\nerroneously relied on 7 C.F.R. § 1410.31(a) to uphold the\nCCC’s denial of reenrollment under Contract 1710. According\nto Mr. Mittelstadt, this provision “has nothing to do with the\npost-award process through which Tract 9073 was disquali-\nfied from Contract 1710,” and “instead describes the\npre-award process” through which Contract 1710 was\nawarded.40 We cannot accept this argument because it is\npremised on a nonexistent temporal distinction.\n The FSA Handbook instructs that, “[w]hen the producer\nis ready to submit an offer, County Offices shall provide … to\nthe producer” Form CRP-1.41 Once a producer submits an\n\n\n\n40 Appellant’s Br. 35–36.\n41 R.16-1 at 179. As an alternative theory of recovery, Mr. Mittelstadt as-\nserts that, when the agency sent him Form CRP-1 for Contract 1710, it had\naccepted his offer of reenrollment, and there was a binding contract. But\nthat argument ignores the FSA’s express description of Form CRP-1 as a\nform document that constitutes the producer’s “offer” of enrollment in the\nCRP, not the agency’s acceptance of that offer. Further, the FSA Handbook\nstates that “[p]roducers withdrawing CRP-1 during the irrevocable period\nshall be subject to liquidated damages,” id., and Form CRP-1 reiterates\nthat, by signing the form, the participant “agrees to pay such liquidated\ndamages … if the Participant withdraws prior to CCC acceptance or rejec-\ntion.” R.19-1 at 45. These provisions confirm that Form CRP-1 constitutes\nan offer to be considered by the CCC, not a binding contract. Given that\nthe regulations similarly require that a producer pay liquidated damages\nto the CCC if he “revokes an offer during the period in which the offer is\nirrevocable,” 7 C.F.R. § 1410.32(c)(2) (emphases added), the prospect of\nhaving to pay liquidated damages provides no support to Mr. Mittel-\nstadt’s position that a binding contract existed. Finally, the FSA Handbook\nrequires that Form CRP-1 “be signed and dated by all required signato-\nries,” R.16-2 at 183, but Mr. Mittelstadt never received a countersigned\n\fNo. 17-2447 21\n\noffer on Form CRP-1, the FSA County Committee “shall sub-\nmit all offers … to the national level for review and evalua-\ntion.”42 The regulation at issue, 7 C.F.R. § 1410.31(a), confers\n“sole discretion” upon the CCC to evaluate offers of enroll-\nment in the CRP “on a competitive basis in which the offers\nselected will be those where the greatest environmental ben-\nefits relative to cost are generated.” The regulations further\nprovide that, “[i]n order to be eligible to be placed in the CRP,\nland must” qualify under an enumerated eligibility category,\nsuch as “[a]creage enrolled in CRP during the final year of the\nCRP contract.” 7 C.F.R. § 1410.6(a).\n In 2006, when the FSA County Committee concluded that\nthe 1997 eligibility determination had been incorrect and ter-\nminated Contract 653, Tract 9073 no longer qualified as eligi-\nble “[a]creage enrolled in CRP.” Id. However, when the Dep-\nuty Director of the National Appeals Division reversed that\ndetermination and reinstated Contract 653, the effect of his or-\nder was only to reinstate Tract 9073’s ground for eligibility\nunder 7 C.F.R. § 1410.6(a)(3).43 Mr. Mittelstadt’s bid to\n\n\ncopy of Contract 1710. Because there was no binding contract, Mr. Mittel-\nstadt cannot state a claim for breach.\n42 R.16-1 at 185 (emphasis omitted).\n43 Mr. Mittelstadt further contends that the Deputy Director’s ruling on\nthe reenrollment of Contract 1710 was improper because, at the pre-hear-\ning before the Hearing Officer, “the parties stipulated that the sole issue\non appeal was the erroneous eligibility determination that was made in\n1997.” R.16-5 at 4. The Hearing Officer found that the “FSA correctly de-\ntermined that Appellant did not establish a mixed stand of hardwood\ntrees on the contract acreage” and that “Appellant based his request for\nCRP reenrollment under contract 1710 on the same inaccurate EBI scoring\nused in CRP contract 653.” R.16-4 at 5–6. Accordingly, the Hearing Officer\ndetermined both that “FSA correctly terminated contract 653 because of\n\f22 No. 17-2447\n\nreenroll was still subject to the CCC’s discretion to evaluate\nhis offer based on its relative competitiveness, see 7 C.F.R.\n§ 1410.31(a), and actual reenrollment required CCC approval.\nThe FSA Director recognized precisely this degree of discre-\ntion when he denied Mr. Mittelstadt’s request for reconsider-\nation, explaining that “agency regulations at 7 C.F.R.\n§ 1410.31(a) provide that acceptance or rejection of any offer\nof land by an owner for CRP participation shall be in the sole\ndiscretion of the CCC and offers may be rejected for any rea-\nson as determined to accomplish the goals of the program.”44\nAccording to the Director, “[w]hile not cited in the determi-\nnation, this regulation was the basis” for the Deputy Direc-\ntor’s decision.45 It was no abuse of discretion for the FSA to\nrely on 7 C.F.R. § 1410.31(a) to uphold the CCC’s decision.\n Relatedly, Mr. Mittelstadt claims that the agency was first\nrequired to change his conservation plan to comply with its\nnew interpretation of “mixed hardwoods” and that, if he “re-\nfused to conform Tract 9073 to the corrected Conservation\n\n\n\n\nan inaccurate EBI score” and that FSA “correctly denied Appellant’s reen-\nrollment request under CRP contract 1710.” Id. at 6. Thus, the Deputy Di-\nrector’s review of the Hearing Officer’s decision necessarily encompassed\nboth the Hearing Officer’s findings with regard to the termination of Con-\ntract 653 and the reenrollment under Contract 1710, which were “based”\non “the same inaccurate EBI scor[e].” Id. The district court correctly con-\ncluded that “the parties’ stipulation … ma[de] little practical sense on its\nface,” R.25 at 18, given that the Deputy Director could not properly review\nthe Hearing Officer’s decision without considering the grounds for that\ndecision in full.\n44 R.16-6 at 1.\n45 Id.\n\fNo. 17-2447 23\n\nPlan, the Tract would then be in violation.”46 But Mr. Mittel-\nstadt confuses the order of procedure required. The FSA\nHandbook instructs that, “[i]f [an] offer is determined ac-\nceptable,” then “a conservation plan must be developed by\nNRCS … and approved by the Conservation District before\nCRP-1 can be approved” by the FSA County Committee.47 Be-\ncause the FSA never accepted Mr. Mittelstadt’s offer to reen-\nroll his land, the agency was under no obligation to develop\na new conservation plan for Tract 9073 before denying reen-\nrollment. The FSA’s course of proceeding simply was not an\nabuse of discretion.\n Conclusion\n For the foregoing reasons, we affirm the judgment of the\ndistrict court.\n AFFIRMED\n\n\n\n\n46 Appellant’s Br. 49 (emphasis in original).\n47 R.16-1 at 186.\n[END_CASE]", "role": "user" } ]
4,581,818		William Rainsberger v. Charles Benner	2019-01-15	17-2521	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before WOOD, Chief Judge, and HAMILTON and BARRETT, Circuit Judges.", "parties": "", "opinions": [{"author": "BARRETT, Circuit Judge", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________ \nNo. 17‐2521 \nWILLIAM RAINSBERGER, \n Plaintiff‐Appellee, \n v. \n\nCHARLES BENNER, \n Defendant‐Appellant. \n ____________________ \n\n Appeal from the United States District Court for the \n Southern District of Indiana, Indianapolis Division. \n No. 1:16‐cv‐00103‐WTL‐MJD — William T. Lawrence, Judge. \n ____________________ \n\n ARGUED JANUARY 4, 2018 — DECIDED JANUARY 15, 2019 \n ____________________ \n\n Before WOOD, Chief Judge, and HAMILTON and BARRETT, \nCircuit Judges. \n BARRETT, Circuit Judge. William Rainsberger was charged \nwith murdering his elderly mother. But the detective who \nbuilt the case against him, Charles Benner, may have been dis‐\nhonest. According to Rainsberger, Benner submitted a proba‐\nble cause aﬃdavit that was riddled with lies and undercut by \nthe omission of exculpatory evidence. Based on that aﬃdavit, \nRainsberger was arrested, charged, and imprisoned for two \n\f2 No. 17‐2521 \n\nmonths. When the prosecutor dismissed the case because of \nevidentiary problems, Rainsberger sued Benner under 42 \nU.S.C. § 1983 for violating his Fourth Amendment rights. Ben‐\nner moved for summary judgment, arguing that he was enti‐\ntled to qualified immunity. The district court denied his mo‐\ntion, and he now asks us to reverse the district court. \n We decline to do so. Benner concedes for purposes of this \nappeal that he knowingly or recklessly made false statements \nin the probable cause affidavit. He emphasizes, however, that \nknowingly or recklessly misleading the magistrate in a prob‐\nable cause affidavit—whether by omissions or outright lies—\nonly violates the Fourth Amendment if the omissions and lies \nwere material to probable cause. He claims that his weren’t, \nbut we disagree. Materiality depends on whether the affidavit \ndemonstrates probable cause when the lies are taken out and \nthe exculpatory evidence is added in. And when that is done \nhere, Benner’s affidavit fails to establish probable cause to be‐\nlieve that Rainsberger murdered his mother. Because it is \nclearly established that it violates the Fourth Amendment “to \nuse deliberately falsified allegations to demonstrate probable \ncause,” Franks v. Delaware, 438 U.S. 154, 168 (1978), Benner is \nnot entitled to qualified immunity. \n I. \n We start with an issue that affects both appellate jurisdic‐\ntion and our rendition of the facts. This is an appeal from the \ndistrict court’s order denying Benner’s motion for summary \njudgment on the ground of qualified immunity. In the normal \ncourse, we lack jurisdiction to review an order denying sum‐\nmary judgment because it is not a “final decision” under 28 \nU.S.C. § 1291. See Gutierrez v. Kermon, 722 F.3d 1003, 1009 (7th \n\fNo. 17‐2521 3 \n\nCir. 2013). But because “qualified immunity is in part an enti‐\ntlement not to be forced to litigate the consequences of official \nconduct,” Mitchell v. Forsyth, 472 U.S. 511, 527 (1985), the de‐\nnial of qualified immunity is an appealable interlocutory de‐\ncision—at least insofar as it turns exclusively on a question of \nlaw, id. at 530. That qualification is significant: because our \nauthority extends only to questions of law, an officer can ob‐\ntain interlocutory review only if he refrains from contesting \nany fact that a reasonable jury could resolve against him. See \nJones v. Clark, 630 F.3d 677, 680 (7th Cir.2011) (“In a collateral‐\norder appeal …, where the defendants say that they accept \nthe plaintiff’s version of the facts, we will take them at their \nword and consider their legal arguments in that light. If, how‐\never, we detect a back‐door effort to contest the facts, we will \nreject it and dismiss the appeal for want of jurisdiction.”). \nBenner does so here. For purposes of this appeal, he accepts \nas true Rainsberger’s version of all facts that are in material \ndispute—most significantly, that he knowingly or recklessly \nmade false or misleading statements in the affidavit that se‐\ncured Rainsberger’s arrest. In what follows, then, we recount \nthe facts that we must take as true, drawing all inferences in \nRainsberger’s favor. The legal question that we must decide \nis whether Benner is entitled to qualified immunity on these \nfacts. \n A. \n Rainsberger was the primary caregiver for his mother, \nRuth, who was 88 years old and suﬀering from dementia.1 \nRuth lived alone in an apartment in a high‐crime area; Rains‐\nberger lived nearby. He checked on her daily, did her grocery \n \n1 We will refer to the other members of the Rainsberger family by their \n\nfirst names for the sake of clarity. \n\f4 No. 17‐2521 \n\nshopping, and handled her finances. His siblings Robert and \nRebecca also helped care for Ruth, although they saw her less \nfrequently. \n At approximately 3:30 p.m. on November 19, 2013, Rains‐\nberger went to Ruth’s apartment and found the door un‐\nlocked. When he entered, he discovered Ruth lying facedown \non the floor with a blanket covering her shoulders and head. \nShe was breathing, but with diﬃculty. There was a large circle \nof dried blood on the blanket and a pool of congealed blood \non the floor. Rainsberger did not remove the blanket because \nhe believed that it was acting as a bandage, and he feared that \nthe bleeding would increase if he pulled it oﬀ. \n Rainsberger called 911 from his mother’s landline at 3:37 \np.m. He told the operator that someone had “bashed [his \nmother’s] head in.” He then called his brother Robert and told \nhim to come to the apartment immediately. Rainsberger \nwaited outside for the ambulance because Ruth’s apartment \nwas diﬃcult to locate within the complex. \n When paramedic Carl Wooldridge arrived, Rainsberger \ntold him that someone had “caved his mother’s head in.” \nWooldridge observed that the blanket covering Ruth’s head \nappeared to be stuck to a wound. He noticed “somewhat of a \nhole in [the blanket] where the wound was,” and when he \npeeled the blanket oﬀ, “there was a mark … on her forehead \nthat [he] believed to be an entrance wound.” Based on those \nobservations, Wooldridge told fire and ambulance personnel \nthat Ruth had been shot—a conclusion that the emergency \npersonnel thought odd, given the lack of blood splatter on the \nwalls or ceiling. As it turned out, Rainsberger, not \nWooldridge, had it right: Ruth died of blunt force trauma to \nthe head. Wooldridge later told Charles Benner, the detective \n\fNo. 17‐2521 5 \n\ninvestigating the murder, that he found it suspicious that \nRainsberger said that his mother’s head had been caved in \neven though he had not removed the blanket to look at her \ninjuries. \n Benner came to Ruth’s apartment roughly 40 minutes after \nRainsberger placed the 911 call. There was no sign of forced \nentry, and while some dresser drawers in Ruth’s bedroom \nwere open, their contents were undisturbed. Ruth’s check‐\nbook, credit cards, and some cash were found in the apart‐\nment. Her purse and prescription medication were not. \n Rainsberger and Robert, who had since arrived, voluntar‐\nily went to police headquarters to give statements to Benner. \nRainsberger said that he had last seen his mother the previous \nevening. After visiting her, he drove to Plainfield, which is \nroughly 25 miles away, to spend the evening with his wife. \nHe returned to his house the next morning, where he stayed \nuntil around 3:30 p.m. He then left home to check on his \nmother, stopping at Kroger on the way to buy an iced tea. He \ntold Benner that Ruth’s apartment was unlocked when he ar‐\nrived and that he found her lying wounded on the floor. He \nchecked the apartment for intruders and, finding none, called \n911. Rainsberger informed Benner that his mother was not \nphysically able to stand up and see through the peephole, so \nshe typically had to open the door to see who was there. And \nRainsberger said that Ruth had $80,000 to $100,000 in savings \nthat would be distributed to her three children upon her \ndeath. \n Robert told Benner that he had not seen Ruth for a few \ndays. He said that he had been at Rainsberger’s house when \nRainsberger called to tell him to come to Ruth’s apartment im‐\n\f6 No. 17‐2521 \n\nmediately. He explained that he had been living with Rains‐\nberger for a few months because he had lost his own home to \nforeclosure. \n Benner talked to Rainsberger’s sister Rebecca the next day. \nRebecca told Benner that she typically checked on her mother \nonce a week and had last seen her the day before the attack. \nSometime after his call with Rebecca, Benner asked the three \nsiblings to come to the station to review the results of Ruth’s \nautopsy. When they got there, however, Benner did not talk \nabout the autopsy. Instead, he accused Rainsberger and Rob‐\nert of murdering their mother for her money and asked them \nto take a polygraph. Upset at the accusation and at being \nlured to the station under false pretenses, they refused and \nleft. Roughly a week later, after obtaining counsel to represent \nthem, both Rainsberger and Robert agreed to go to the station \nto give fingerprints and submit to a DNA buccal swab. \n Benner did not wait for the results of the DNA tests before \nseeking to have Rainsberger arrested and charged. In early \nDecember 2013, Benner submitted a probable cause aﬃdavit \nto the Marion County prosecutor. But the prosecutor declined \nto pursue it, and Benner went back to find more evidence. \n Benner hoped that the results of the DNA tests would \nmake his case against Rainsberger. In March 2014, he noted in \nan email to a colleague that “[t]he victim’s sons are the sus‐\npects in this case and I am waiting for DNA results before any \narrest may be made.” But when the laboratory report came \nout in April 2014, it did not implicate Rainsberger—the DNA \nof two males was found on Ruth’s blanket and clothing, but \nneither Rainsberger nor Robert was a match. Benner took that \nresult in stride. Although the DNA test did not incriminate \n\fNo. 17‐2521 7 \n\nRainsberger, Benner did not think that it exonerated him ei‐\nther. (The same, of course, was true of Robert, but Benner was \nfocused on Rainsberger.) Benner reasoned that the unknown \nmale DNA on Ruth’s blanket and clothing might have been \nleft by emergency personnel rather than the killer. \n In May 2014, Benner went to the prosecutor with a second \nprobable cause aﬃdavit that was almost identical to the first. \nThe second aﬃdavit did not disclose the results of the DNA \ntest. But it added two pieces of evidence that Benner had ac‐\nquired since he presented the prosecutor with the first aﬃda‐\nvit. First, Benner used cell phone records to suggest that \nRainsberger had called Robert from Ruth’s apartment at 2:40 \np.m.—hours after Ruth was attacked and a little more than an \nhour before Rainsberger called 911. Second, he stated that cell \nphone tower location data could not place Rainsberger out‐\nside the area of his mother’s apartment during the relevant \nperiod. After receiving the second probable cause aﬃdavit, \nthe prosecutor went to Marion County Court and obtained a \nwarrant for Rainsberger’s arrest. Rainsberger was charged \nwith his mother’s murder and spent two months in jail before \nhe was released on bail. The prosecutor dismissed the case a \nyear later because of evidentiary problems. \n B. \n After the charges were dropped, Rainsberger sued Benner \nunder 42 U.S.C. § 1983, alleging that Benner had violated his \nFourth Amendment rights. Benner moved for summary judg‐\nment on the basis of qualified immunity, but the district court \ndenied the motion. It decided that a reasonable jury could find \nthat Benner knowingly or with reckless disregard for the truth \nmade false or misleading statements in the aﬃdavit. Probable \ncause did not exist without the false or misleading statements, \n\f8 No. 17‐2521 \n\nthe district court said, and because an oﬃcer who submits a \nmaterially misleading probable cause aﬃdavit violates \nclearly established Fourth Amendment law, it denied Benner \nqualified immunity. The district court’s order turned on the \nfollowing omissions and alleged lies.2 \n The phone records. The most damning addition to the sec‐\nond probable cause aﬃdavit was the suggestion that Rains‐\nberger called Robert’s cell phone from Ruth’s landline at 2:40 \np.m. on November 19. This placed Rainsberger at Ruth’s \napartment after she was injured and almost an hour before he \ncalled 911 for help. But the time stamp was inaccurate—and \nfor purposes of this appeal, we must assume that Benner \nknew it. A phone expert at the police department had ana‐\nlyzed the records and told Benner that the call had been \nrouted through a cell tower in Chicago, where it was one hour \nearlier. Thus, despite the 2:40 p.m. time stamp, the call had \nbeen placed at 3:40 p.m. Indianapolis time. It was the call that \nRainsberger had made to Robert just after he found Ruth and \ncalled 911. Benner chose to use the inaccurate and incriminat‐\ning time in his aﬃdavit. \n The Kroger video. Rainsberger had stopped at Kroger to buy \nan iced tea before going to Ruth’s apartment on the day of the \n\n \n2 Rainsberger complains about omissions in addition to those we detail \n\nhere. For example, he faults Benner for failing to include the results of the \nDNA test, the fact that Ruth lived in a high‐crime area, and the fact that \nshe would often open the door to strangers because she couldn’t see \nthrough the peephole. The district court chose not to determine whether \nthis information was material because it found probable cause lacking \neven without it. Because we agree that the hypothetical affidavit fails to \nestablish probable cause even without this evidence, we take the same ap‐\nproach as the district court. \n\fNo. 17‐2521 9 \n\nmurder. In the probable cause aﬃdavit, Benner described sur‐\nveillance video from Kroger that showed Rainsberger making \na trip to a trash can. According to Benner, Rainsberger “ap‐\npeared to pull out a straight object from his person which he \nplaced in the garbage can.” But the district court observed that \nnothing on the video shows Rainsberger “‘pulling’ the object \nfrom anywhere.” Benner also claimed that “[a]s [Rainsberger] \nplaced the object in the trash he appeared to look around for \ncameras.” But as the district court said, a reasonable jury \ncould find that Benner deliberately mischaracterized Rains‐\nberger’s behavior, which does not appear furtive on the video. \nAnd after watching the video ourselves, we agree with Rains‐\nberger that a reasonable jury could find that Benner intention‐\nally misled the prosecutor and magistrate in yet another re‐\nspect: by describing Rainsberger’s trash as a “straight object.” \nThat phrase was obviously designed to imply that Rains‐\nberger disposed of the murder weapon, but the object that \nRainsberger threw away looks far more like a soda can than a \n“straight object.”3 Viewed in Rainsberger’s favor, the video \ndepicts him carrying a small nondescript piece of trash \nthrough a parking lot and throwing it away near the entrance \nto the grocery store—in broad daylight and while other pa‐\ntrons are walking by. \n The evidence of burglary. Benner believed that Ruth’s at‐\ntacker was someone she knew rather than a thief. Consistent \nwith that theory, Benner swore in the aﬃdavit that nothing \n\n \n3 The district court did not address the shape of the trash, and its hypo‐\n\nthetical affidavit left intact Benner’s statement that “Rainsberger placed \nwhat appeared to be a straight object in the garbage can.” After viewing \nthe video in the light most favorable to Rainsberger, we refer to the waste \nsimply as “trash” in evaluating the affidavit. \n\f10 No. 17‐2521 \n\nhad been taken from the apartment. He noted that there was \nno sign of forced entry; that cash, a checkbook, and credit \ncards were still in the apartment; and that things were undis‐\nturbed apart from a few open drawers. But the district court \nconcluded that a jury could find that Benner intentionally \nmisled the prosecutor and magistrate in two respects. First, he \nfailed to tell them that Ruth’s purse and prescription medica‐\ntion were missing. Second, he stated that a lockbox containing \nsavings bonds was untouched and in plain view, even though \nthe lockbox was neither in plain view nor a repository of sav‐\nings bonds. \n Rainsberger’s concern for his mother. Benner described \nRainsberger as lacking concern for his mother. He stated that \nafter Rainsberger called 911, he “went outside to wait for the \nambulance” and “left his mother unattended until the police \narrived.” Benner conspicuously omitted Rainsberger’s expla‐\nnation for doing so—that he wanted to direct the ambulance \nto Ruth’s apartment, which was hard to find. And continuing \nwith this “callous son” theme, Benner asserted that when they \nwere questioned on the day of the attack, “[a]t no time did \nRobert or his brother, Rainsberger, ever ask me how their \nmom was doing or if they could get to the hospital to see her.” \nBenner knew, however, that Rainsberger was receiving up‐\ndates by text from his sister Rebecca, who was at the hospital, \nand that Rainsberger had expressed concern about how he \nwould get to the hospital from the police station. The district \ncourt concluded that a reasonable jury could find that Benner \nintentionally misled the prosecutor and magistrate. \n The polygraph. Benner claimed in the aﬃdavit that the \nRainsberger children “stormed out” of the police station after \nhe asked Rainsberger and Robert to take a polygraph test and \n\fNo. 17‐2521 11 \n\nthat he did not hear from them again. According to the district \ncourt, a reasonable jury could agree with Rainsberger that \nBenner’s description of the Rainsbergers’ departure was a lie, \nas was his claim that he didn’t hear from them again. \n II. \n Before us, Benner insists that he is entitled to qualified im‐\nmunity even if all of the disputed facts are true. Qualified im‐\nmunity involves a two‐pronged inquiry: (1) whether the facts, \nread in favor of the non‐moving party, amount to a constitu‐\ntional violation; and (2) whether the constitutional right was \nclearly established at the time of the alleged violation. McCo‐\nmas v. Brickley, 673 F.3d 722, 725 (7th Cir. 2012). The oﬃcer \nwins if the answer to either question is “no.” Jacobs v. City of \nChicago, 215 F.3d 758, 766 (7th Cir. 2000). Courts often start \nwith the second question, because if the law was not clearly \nestablished, there is no need to tackle the (often harder) ques‐\ntion whether the challenged conduct violated the Constitu‐\ntion. See Pearson v. Callahan, 555 U.S. 223, 236–42 (2009). This \ncase requires us to confront both issues, however, so we begin \nby analyzing whether Benner’s alleged conduct violated \nRainsberger’s Fourth Amendment rights. \n A. \n An officer violates the Fourth Amendment if he intention‐\nally or recklessly includes false statements in a warrant appli‐\ncation and those false statements were material to a finding of \nprobable cause. Hart v. Mannina, 798 F.3d 578, 591 (7th Cir. \n2015). An officer similarly violates the Fourth Amendment if \nhe intentionally or recklessly withholds material information \nfrom a probable cause affidavit. Whitlock v. Brown, 596 F.3d \n406, 410–11 (7th Cir. 2010). We use a straightforward method \n\f12 No. 17‐2521 \n\nto determine whether the alleged lies or omissions are mate‐\nrial: “We eliminate the alleged false statements, incorporate \nany allegedly omitted facts, and then evaluate whether the re‐\nsulting ‘hypothetical’ affidavit would establish probable \ncause.” Betker v. Gomez, 692 F.3d 854, 862 (7th Cir. 2012). \n With the lies stripped and the omissions added, Benner’s \ncase for probable cause boils down to this: Ruth’s murderer \nmight have been someone she knew, because the attack was \nnot necessarily connected to a burglary. Some drawers had \nbeen opened and her purse and medication were missing; at \nthe same time, there was no sign of a forced entry, and Ruth’s \ncheckbook, credit cards, and some cash were still in the apart‐\nment. Rainsberger had a key to her apartment, and cell phone \nrecords did not rule out the possibility that he was in the vi‐\ncinity of her apartment complex when the attack happened. \nShortly before he found his mother and called 911, Rains‐\nberger stopped at a Kroger across the street from his mother’s \napartment to buy an iced tea. He walked in plain view \nthrough the Kroger parking lot carrying a piece of trash, \nwhich he threw away in a receptacle by a Redbox machine on \nhis way into the store. He correctly described Ruth’s injury as \na blow to the head, even though he had not removed the blan‐\nket to see the wound. In contrast, the first responder, who did \nremove the blanket, initially thought that Ruth had been shot. \nRainsberger and his two siblings would inherit about $33,000 \napiece if his mother died. When Benner brought the Rains‐\nberger children to the police station under false pretenses, \nRainsberger and his brother refused Benner’s request that \nthey take a polygraph test. A week later, they voluntarily gave \nfingerprints and submitted to a DNA buccal swab. \n\fNo. 17‐2521 13 \n\n As we have explained before, “probable cause is a \ncommon‐sense inquiry requiring only a probability of \ncriminal activity; it exists whenever an officer or a court has \nenough information to warrant a prudent person to believe \ncriminal conduct has occurred.” Whitlock, 596 F.3d at 411. It \ndoes not require proof of a crime; it is about “the degree of \nsuspicion that attaches to particular types of non‐criminal \nacts.” Illinois v. Gates, 462 U.S. 213, 243 n.13 (1983). \nImportantly, a probable cause inquiry does not take each fact \nin isolation; it depends on the totality of the circumstances. \nDistrict of Columbia v. Wesby, 138 S. Ct. 577, 588 (2018). \nAssessing the hypothetical affidavit therefore requires us to \ndetermine whether Rainsberger’s behavior was suspicious \nenough that a prudent person aware of the full picture \npainted in the hypothetical affidavit could believe that \nRainsberger murdered his mother. \n A prudent person could not draw that conclusion on these \nfacts. Many of them would be true of most children of aging \nparents: that Rainsberger had a key to her apartment, checked \non her frequently, and stood (along with his siblings) to in‐\nherit whatever she left behind. These unremarkable facts \nwould be reason to suspect Rainsberger only if other infor‐\nmation cast them in a suspicious light. Benner sought that \nlight with his theory that Ruth was murdered by someone she \nknew rather than a thief. Yet the evidence on that score was \nconflicting: while some valuables remained in the apartment, \nothers were missing. Benner also suggested that Rains‐\nberger’s refusal to take a polygraph test reflected his con‐\nsciousness of guilt. But that inference is weak, given that Ben‐\nner had lured the Rainsberger children to the station with a \nlie and met them with a hostile demand for a polygraph test \nwhen they arrived. And the fact that Rainsberger tossed a \n\f14 No. 17‐2521 \n\npiece of trash into a garbage can in broad daylight on his way \ninto Kroger is neither here nor there. Without what a jury \ncould reasonably consider to be a grossly misleading descrip‐\ntion of the surveillance video, this trip to a trash can certainly \ndoes not support the inference that Rainsberger disposed of \nthe murder weapon before going to Ruth’s apartment. \n Benner’s best argument for turning this package of facts \ninto grounds for probable cause is that Rainsberger correctly \ndescribed his mother as having been hit in the head even \nthough he had not looked under the blanket. But this fact can‐\nnot carry the weight Benner needs it to. Rainsberger’s state‐\nment was a reasonable inference from observable evidence; \nhe walked into his mother’s house, saw her lying on the floor \nand bleeding from her head, and concluded that someone had \nhit her over the head. The cause of her injury was not so diffi‐\ncult to discern that knowing it suggested inside knowledge. \nIndeed, the emergency personnel thought that the first re‐\nsponder’s competing theory—that Ruth had been shot—was \ncounterintuitive, given the lack of telltale blood splatter on the \nwalls or ceiling. \n The totality of these circumstances supports nothing more \nthan bare suspicion, and the Court has emphasized that prob‐\nable cause requires more than that. See Brinegar v. United \nStates, 338 U.S. 160, 175 (1949) (probable cause “mean[s] more \nthan bare suspicion”); Henry v. United States, 361 U.S. 98, 104 \n(1959) (“Under our system suspicion is not enough for an of‐\nficer to lay hands on a citizen.”); see also Ebert v. Gaetz, 610 F.3d \n404, 413 (7th Cir. 2010) (“The officers must have more than a \nbare suspicion that they have the right guy … .”); Sherouse v. \nRatchner, 573 F.3d 1055, 1062 (10th Cir. 2009) (“Where an of‐\n\fNo. 17‐2521 15 \n\nficer observes inherently innocuous behavior that has plausi‐\nble innocent explanations, it takes more than speculation or \nmere possibility to give rise to probable cause to arrest.”). If \nprobable cause exists here, then anyone who experiences the \ntragedy of discovering a murdered family member—and who \ncorrectly assesses the cause of the injury and recently threw \nsomething away in a public trash can—can be arrested for \nmurder. Probable cause is a low bar, but this evidence does \nnot clear it. \n B. \n Benner tries to bolster the case for probable cause with in‐\nculpatory facts that he did not include in the aﬃdavit. For ex‐\nample, he asserts that in his training and experience as a hom‐\nicide detective, an attacker who covers his victim’s head often \nhas a personal relationship with the victim. He also says that \nin his experience, family members are typically eager to take \npolygraph tests so that the oﬃcer can get to work on finding \nthe real culprit. According to Benner, this additional infor‐\nmation can make up the diﬀerence if we think that the incul‐\npatory evidence recited in the aﬃdavit falls short. \n Benner recognizes that we have never incorporated incul‐\npatory evidence into a hypothetical aﬃdavit in a civil suit like \nthis.4 But we have never expressly refused to do so either, and \n\n \n4 That said, he does stretch for some support from Knox v. Smith, 342 F.3d \n\n651 (2003), which arose in the distinct context of a parole violation. In \nKnox, the plaintiff alleged that his parole officer lacked reasonable suspi‐\ncion to believe that he had violated the conditions of his parole when she \nrequested a warrant for his arrest on that ground. Id. at 656. He also al‐\nleged that at least one of the facts in the parole violation report prepared \nby the defendant and her supervisor was a lie. Id. at 658. According to \nBenner, Knox supports his “beyond the four corners” approach because \n\f16 No. 17‐2521 \n\nhe argues that now is the time for us to embrace this approach. \nAfter all, he says, we go outside the four corners of the aﬃda‐\nvit to consider omitted exculpatory evidence, so why not do \nthe same for omitted inculpatory evidence? He emphasizes \nthat oﬃcers do not have an obligation to include every incul‐\npatory detail in a probable cause aﬃdavit and warns that if \nwe decline to consider omitted inculpatory facts, oﬃcers will \nfeel forced to recite every detail in an aﬃdavit to bolster any \nlater claim of qualified immunity. He maintains that this \nwould be ineﬃcient and burdensome, particularly when the \ntimeline is tight. And he contends that this rule might prompt \noﬃcers to forgo warrants altogether, because if they are sued \nfor making a warrantless arrest, they can defend by drawing \non all available facts—not merely those they chose to include \nin an aﬃdavit—to demonstrate that probable cause existed. \n Benner’s argument is misguided. It assumes that this suit \nis about whether Benner violated the Fourth Amendment’s \nprohibition on “unreasonable searches and seizures” by ar‐\nresting Rainsberger without probable cause. But that is not \nthe allegation here. Rainsberger has sued Benner for violating \nthe Fourth Amendment’s guarantee that “no Warrants shall \n\n\n \nwe relied on inculpatory information that was outside the parole violation \nreport in concluding that the officer was entitled to qualified immunity. \nBut the parole violation report in Knox was not the same thing as a proba‐\nble cause affidavit; it was a document that the officer and her supervisor \nprepared the day after the warrant had issued. Id. at 655. Indeed, there \nwas no affidavit in Knox that could have marked the boundaries of our \ninquiry, because the parole officer requested a warrant via a page sent to \nher supervisor. Id. And Knox contains no discussion of what the officer’s \nsupervisor knew when the officer requested the warrant, much less the \n“four corners” issue that Benner raises. \n\fNo. 17‐2521 17 \n\nissue, but upon probable cause, supported by Oath or affir‐\nmation … .” U.S. CONST. amend. IV. The Warrant Clause is \nnot merely a probable‐cause guarantee. It is a guarantee that \na warrant will not issue unless a neutral and disinterested \nmagistrate independently decides that probable cause exists. \nFranks v. Delaware, 438 U.S. 154, 164 (1978) (“The bulwark of \nFourth Amendment protection, of course, is the Warrant \nClause, requiring that, absent certain exceptions, police obtain \na warrant from a neutral and disinterested magistrate before \nembarking upon a search.”); Johnson v. United States, 333 U.S. \n10, 14 (1948) (“Its protection consists in requiring that [eviden‐\ntiary] inferences be drawn by a neutral and detached magis‐\ntrate instead of being judged by the officer engaged in the of‐\nten competitive enterprise of ferreting out crime.”). A magis‐\ntrate can assess only the information that she is given; there‐\nfore, in testing the validity of a warrant, we consider only ev‐\nidence that the magistrate had.5 And “[i]f an affidavit is the \nonly matter presented to the issuing magistrate … the war‐\nrant must stand or fall solely on the contents of the affidavit.” \nUnited States v. Roth, 391 F.2d 507, 509 (1967); see also United \nStates v. Orozco, 576 F.3d 745, 748 (7th Cir. 2009) (“When, as \nhere, an affidavit is the only evidence presented to a judge to \nsupport a search warrant, the ‘validity of the warrant rests \n\n\n \n5 For the sake of clarity, we emphasize that inculpatory evidence not in‐\n\ncluded in the affidavit may be admissible with respect to an issue other \nthan whether the warrant demonstrates probable cause. For example, it \nmight be evidence of whether an officer acted knowingly or recklessly \nwhen he prepared the affidavit. See, e.g., United States v. Williams, 718 F.3d \n644, 650 (7th Cir. 2013) (noting that the officers’ omission of additional in‐\nculpatory evidence provided “a reasonable basis to believe that the police \ndid not intend to mislead”). \n\f18 No. 17‐2521 \n\nsolely on the strength of the affidavit.’” (citation omitted)). Ex‐\ntrinsic evidence of guilt “cannot be used … to augment an \notherwise defective affidavit.” Roth, 391 F.2d at 509; see also \nUnited States v. Harris, 464 F.3d 733, 739 (7th Cir. 2006) (“Con‐\nsidering new information … that supported a finding of prob‐\nable cause was beyond the trial court’s analytical reach. Ra‐\nther, its consideration of new information omitted from the \nwarrant affidavit should have been limited to facts that did \nnot support a finding of probable cause.”). \n Benner argues that a different rule should apply in a civil \ncase to give the police officer greater protection when his in‐\ndividual liability is on the line. But the first prong of the qual‐\nified immunity analysis is not the one designed to specially \nprotect the officer—that comes at the second prong, which \nlimits the officer’s liability to violations of clearly established \nlaw. In the first inquiry, we analyze whether the facts before \nus “make out a violation of a constitutional right.” Pearson, \n555 U.S. at 232. And the Fourth Amendment is violated when \nthe magistrate’s probable‐cause determination is made based \non an affidavit that fails to establish probable cause, no matter \nwhat extra‐affidavit information the officer had. Roth, 391 \nF.2d at 509; see also Orozco, 576 F.3d at 748. Moreover, while \nwe have never addressed the issue that Benner raises, we \nhave held that other aspects of Franks apply equally in civil \nand criminal cases. See Perlman v. City of Chicago, 801 F.2d 262, \n264–65 (7th Cir. 1986) (holding that Franks’s requirement of a \n“substantial preliminary showing” that the officer deliber‐\nately misrepresented facts in a warrant affidavit applies in \ncivil as well as criminal actions). There is no reason to follow \na different course here. See id. (asserting that there is “no rea‐\nson to apply a standard different than that established by \nFranks to a civil action for damages based on an allegation that \n\fNo. 17‐2521 19 \n\na police officer deliberately misrepresented facts in a warrant \naffidavit”). \n It bears emphasis that there is no lack of symmetry be‐\ntween our willingness to go beyond the affidavit to consider \nevidence of innocence while staying strictly within it for evi‐\ndence of guilt. Both rules are designed to protect the integrity \nof the warrant process. Refusing to add inculpatory infor‐\nmation to a hypothetical affidavit enforces the Warrant \nClause’s requirement that warrants issue based on the judg‐\nment of a neutral magistrate rather than that of an interested \npolice officer. Adding exculpatory information to a hypothet‐\nical affidavit permits us to determine whether the officer dis‐\ntorted the magistrate’s judgment by suppressing material ev‐\nidence.6 An affidavit that misleads by lies or omission under‐\ncuts the magistrate’s ability to make an independent probable \ncause determination. See Franks, 438 U.S. at 165 (“Because it is \nthe magistrate who must determine independently whether \nthere is probable cause, it would be an unthinkable imposi‐\ntion upon his authority if a warrant affidavit, revealed after \nthe fact to contain a deliberately or recklessly false statement, \nwere to stand beyond impeachment.” (citations omitted)). It \nalso vitiates the Clause’s requirement that probable cause be \nsupported by “Oath or affirmation.” As the Court has ob‐\nserved, this language demands a “truthful” showing “in the \n\n \n6 The same concern drives our practice of excluding false information from \n\na hypothetical affidavit. An affidavit that contains material lies contami‐\nnates the magistrate’s assessment of probable cause. If probable cause ex‐\nists without the lies, then the warrant issued on the strength of the hon‐\nestly sworn facts. It therefore satisfies the Fourth Amendment’s require‐\nment that a warrant issue only “upon probable cause” demonstrated by \nfacts “supported by Oath or affirmation.” U.S. CONST. amend. IV. \n\f20 No. 17‐2521 \n\nsense that the information put forth is believed or appropri‐\nately accepted by the affiant as true.” Id. An officer who \nswears that presented facts support probable cause when he \nknows that suppressed facts destroy it does not act truthfully. \nHe therefore violates the Warrant Clause, which “surely takes \nthe affiant’s good faith as its premise.” Id. at 164. \n In sum, Benner’s argument that he could have obtained a \nvalid warrant if he had proceeded differently is beside the \npoint. A hypothetical affidavit is not designed to determine \nwhether an officer could have satisfied the Warrant Clause; it \nis to determine whether he actually satisfied it. And Benner \ndid not, at least if the disputed facts are resolved in Rains‐\nberger’s favor. \n III. \n We now turn to the second prong of the qualified immun‐\nity analysis: whether it would have been “clear to a reasonable \noﬃcial that his or her conduct was unlawful in the situation.” \nCarvajal v. Dominguez, 542 F.3d 561, 566 (7th Cir. 2008). Benner \nargues that even if he violated Rainsberger’s Fourth Amend‐\nment rights, the district court still wrongfully denied him \nqualified immunity. He concedes—as he must—that it vio‐\nlates clearly established law “to use deliberately falsified alle‐\ngations to demonstrate probable cause.” Franks, 438 U.S. at \n168. Even so, Benner says, he is entitled to qualified immunity \nif the facts of the hypothetical aﬃdavit demonstrate “arguable \nprobable cause”—in other words, if a competent oﬃcer faced \nwith the facts in the hypothetical aﬃdavit could reasonably if \nmistakenly believe that those facts were suﬃcient to establish \nprobable cause. Benner’s argument takes some untangling, \nbut its logic is this: (1) only material lies and omissions violate \nthe Fourth Amendment, so the materiality of those lies and \n\fNo. 17‐2521 21 \n\nomissions must be clearly established; (2) the court evaluates \nmateriality by determining whether a hypothetical aﬃdavit \nwould demonstrate probable cause; (3) if a competent oﬃcer \nreviewing the hypothetical aﬃdavit could reasonably but \nmistakenly conclude that it established probable cause, then \nthe materiality of the false or omitted information was not \n“clearly established.” \n We have never applied the test that Benner proposes. \nThere is a reason: it doesn’t make sense. To begin with, Ben‐\nner’s framing has the proverbial reasonable oﬃcer facing a \nsituation diﬀerent from the one Benner did. Qualified immun‐\nity depends on whether it would have been “clear to a reason‐\nable oﬃcer that his conduct was unlawful in the situation he \nconfronted.” Wesby, 138 S. Ct. at 590 (emphasis added) (citation \nomitted). In other words, the court puts a competent oﬃcer in \nthe defendant’s shoes, facing the same choice that the defend‐\nant did. Benner did not face a choice about whether the facts \nin the hypothetical aﬃdavit established probable cause. He \nfaced a choice about whether to make false or misleading \nstatements in the aﬃdavit. (He has also been faulted for ex‐\ncluding exculpatory evidence, but that presents diﬀerent is‐\nsues that we’ll get to below.) Thus, the relevant question is \nwhat a well‐trained oﬃcer would have thought about the law‐\nfulness of that action. What Benner is really arguing, then, is \nthat he is entitled to qualified immunity if a well‐trained of‐\nficer could “reasonably but mistakenly conclude” that it was \nlawful to include an incriminating lie in an aﬃdavit because \nthe lie wasn’t material to the probable cause determination. \nSee Anderson v. Creighton, 483 U.S. 635, 641 (1987). \n Of course, a competent oﬃcer would not even entertain \nthe question whether it was lawful for him to lie in a probable \n\f22 No. 17‐2521 \n\ncause aﬃdavit. The hypothetical oﬃcer in the qualified im‐\nmunity analysis is one who acts in good faith. That is what the \nstandard of “objective reasonableness” is designed to capture. \nSee Harlow v. Fitzgerald, 457 U.S. 800, 815–19 (1982); Malley v. \nBriggs, 475 U.S. 335, 345 (1986); cf. United States v. Leon, 468 \nU.S. 897, 922–23 (1984) (establishing the “good faith excep‐\ntion” to the exclusionary rule). Indeed, protecting oﬃcers \nwho act in objective good faith is the justification for qualified \nimmunity. Harlow, 457 U.S. at 815, 819 n.34 (explaining that \nqualified immunity applies to suits “arising from actions \nwithin the scope of an oﬃcial’s duties and in objective good \nfaith” (emphasis added) (internal quotation omitted)). It \nwould be flatly inconsistent with that justification to imagine \na competent oﬃcer considering the question whether a lie \nhelpful to demonstrating probable cause is so helpful that he \nshould not tell it. That is neither a reasonable question to ask \nnor a reasonable mistake to make. \n Nonetheless, Benner maintains that we have previously \nembraced his approach. He seizes on a sentence in Betker v. \nGomez, in which we asserted that “[a]n officer who knowingly \nor recklessly submitted an affidavit containing false state‐\nments may still get qualified immunity if he can establish that \nhe had an objectively reasonable basis for believing the facts \nin the affidavit were sufficient to establish probable cause.” \nSee 692 F.3d at 860. Taken out of context, this sentence super‐\nficially supports Benner’s position that he is entitled to quali‐\nfied immunity if the hypothetical affidavit establishes “argu‐\nable probable cause.” But his cherry‐picking distorts what we \nactually said. In the very next sentence we explained: “But \nqualified immunity does not extend where an officer know‐\ningly or recklessly made false statements and ‘no accurate in‐\nformation sufficient to constitute probable cause attended the \n\fNo. 17‐2521 23 \n\nfalse statements.’” Id. (quoting Lawson v. Veruchi, 637 F.3d 699, \n705 (7th Cir. 2011)). Our analysis then proceeded as we do \nhere: we constructed a hypothetical affidavit, determined \nwhether it established actual probable cause, and denied \nqualified immunity because “immunity does not extend \n‘[w]here the judicial finding of probable cause is based solely \non information the officer knew to be false or would have \nknown was false had he not recklessly disregarded the \ntruth.’” Id. (alteration in original) (quoting Olson v. Tyler, 771 \nF.2d 277, 282 (7th Cir. 1985)). We never asked, much less ana‐\nlyzed, whether the officer in Betker had made a reasonable \nmistake about the materiality of his lies. \n To summarize: if an officer knowingly or recklessly in‐\ncludes false information in an affidavit and that information \nis not material, he will not be liable in a § 1983 action because \nthe plaintiff will not be able to prove a constitutional viola‐\ntion. But if that information is material, the officer is not enti‐\ntled to qualified immunity. The unlawfulness of using delib‐\nerately falsified allegations to establish probable cause could \nnot be clearer. See, e.g., Lawson, 637 F.3d at 705 (“[I]t [i]s clearly \nestablished ‘that a warrant request violates the Fourth \nAmendment if the requesting officer knowingly, intention‐\nally, or with reckless disregard for the truth, makes false state‐\nments in requesting the warrant and the false statements were \nnecessary to the determination that a warrant should issue.’” \n(citation omitted)); Olson, 771 F.2d at 281 (“If an officer sub‐\nmitted an affidavit that contained statements he knew to be \nfalse or would have known were false had he not recklessly \ndisregarded the truth and no accurate information sufficient \nto constitute probable cause attended the false statements, not \nonly is his conduct the active cause of the illegal arrest, but he \n\f24 No. 17‐2521 \n\ncannot be said to have acted in an objectively reasonable man‐\nner.”). And the plaintiff need not show that the materiality of \nthe lie would have been clear to a competent officer. The qual‐\nified immunity analysis uses the perspective of an officer act‐\ning in good faith, and an officer acting in good faith would \nnot entertain that question. \n An officer sued for failing to include materially \nexculpatory facts in a probable cause affidavit is differently \nsituated. It violates clearly established law to “intentionally or \nrecklessly withhold material information from a warrant \napplication.” Whitlock, 596 F.3d at 408. But while a competent \nofficer would not ask whether the Fourth Amendment \npermits him to tell a particular lie, a competent officer \nwould—indeed, must—consider whether the Fourth \nAmendment obligates him to disclose particular evidence. \nBecause an officer acting in good faith could make a \nreasonable mistake about his disclosure obligation, the \nmateriality of omitted facts, unlike the materiality of false \nstatements, is properly part of the qualified‐immunity \nanalysis. We have repeatedly held, therefore, that an officer \nviolates the Fourth Amendment by omission only if “it would \nhave been clear to a reasonable officer that the omitted fact \nwas material to the probable‐cause determination.” See Leaver \nv. Shortess, 844 F.3d 665, 669 (7th Cir. 2016); see also Olson v. \nTyler, 825 F.2d 1116, 1121 (7th Cir. 1987) (“[O]nly where a \nreasonable officer can conclude that a withheld fact is \nirrelevant to probable cause should such an officer who \nwithholds a known (or recklessly disregarded) fact be \nprotected with qualified immunity.”). \n Whitlock provides an illustration. See 596 F.3d 406. There, \ncampers picked up apparently abandoned bags in an Indiana \n\fNo. 17‐2521 25 \n\nstate park, intending to turn them in to park authorities so \nthat the property could be returned to its rightful owner. Id. \nat 408–09. But they forgot for several hours, the bags were re‐\nported stolen, and the campers were arrested for criminal \nconversion. Id. at 409. They sued the officer who obtained the \nwarrant, alleging that he withheld a material fact by failing to \ninclude the campers’ innocent explanation for taking the bags \nin his probable cause affidavit. Id. at 410. We held that the of‐\nficer was entitled to qualified immunity. Because Indiana law \non criminal conversion was undeveloped, a reasonable officer \nwould not necessarily have known that the campers’ explana‐\ntion for taking the bags was material to the probable cause \ndetermination. Id. at 413. A well‐trained officer could make a \nreasonable mistake about whether a given fact would negate \nprobable cause. \n Here, Benner has not argued that it would have been un‐\nclear to a reasonable oﬃcer that any of the information that \nhe omitted was material to the probable cause determination. \nThus, we need not address whether he made any reasonable \nmistakes in that regard. \n * * * \n The district court correctly held that Benner is not entitled \nto qualified immunity, and its judgment is AFFIRMED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4359071/", "author_raw": "BARRETT, Circuit Judge"}]}	WOOD	HAMILTON	BARRETT	1		{"WOOD": ", Chief", "HAMILTON": ", Circuit", "BARRETT": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4581818/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: William Rainsberger v. Charles Benner\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-15\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________ \nNo. 17‐2521 \nWILLIAM RAINSBERGER, \n Plaintiff‐Appellee, \n v. \n\nCHARLES BENNER, \n Defendant‐Appellant. \n ____________________ \n\n Appeal from the United States District Court for the \n Southern District of Indiana, Indianapolis Division. \n No. 1:16‐cv‐00103‐WTL‐MJD — William T. Lawrence, Judge. \n ____________________ \n\n ARGUED JANUARY 4, 2018 — DECIDED JANUARY 15, 2019 \n ____________________ \n\n Before WOOD, Chief Judge, and HAMILTON and BARRETT, \nCircuit Judges. \n BARRETT, Circuit Judge. William Rainsberger was charged \nwith murdering his elderly mother. But the detective who \nbuilt the case against him, Charles Benner, may have been dis‐\nhonest. According to Rainsberger, Benner submitted a proba‐\nble cause aﬃdavit that was riddled with lies and undercut by \nthe omission of exculpatory evidence. Based on that aﬃdavit, \nRainsberger was arrested, charged, and imprisoned for two \n\f2 No. 17‐2521 \n\nmonths. When the prosecutor dismissed the case because of \nevidentiary problems, Rainsberger sued Benner under 42 \nU.S.C. § 1983 for violating his Fourth Amendment rights. Ben‐\nner moved for summary judgment, arguing that he was enti‐\ntled to qualified immunity. The district court denied his mo‐\ntion, and he now asks us to reverse the district court. \n We decline to do so. Benner concedes for purposes of this \nappeal that he knowingly or recklessly made false statements \nin the probable cause affidavit. He emphasizes, however, that \nknowingly or recklessly misleading the magistrate in a prob‐\nable cause affidavit—whether by omissions or outright lies—\nonly violates the Fourth Amendment if the omissions and lies \nwere material to probable cause. He claims that his weren’t, \nbut we disagree. Materiality depends on whether the affidavit \ndemonstrates probable cause when the lies are taken out and \nthe exculpatory evidence is added in. And when that is done \nhere, Benner’s affidavit fails to establish probable cause to be‐\nlieve that Rainsberger murdered his mother. Because it is \nclearly established that it violates the Fourth Amendment “to \nuse deliberately falsified allegations to demonstrate probable \ncause,” Franks v. Delaware, 438 U.S. 154, 168 (1978), Benner is \nnot entitled to qualified immunity. \n I. \n We start with an issue that affects both appellate jurisdic‐\ntion and our rendition of the facts. This is an appeal from the \ndistrict court’s order denying Benner’s motion for summary \njudgment on the ground of qualified immunity. In the normal \ncourse, we lack jurisdiction to review an order denying sum‐\nmary judgment because it is not a “final decision” under 28 \nU.S.C. § 1291. See Gutierrez v. Kermon, 722 F.3d 1003, 1009 (7th \n\fNo. 17‐2521 3 \n\nCir. 2013). But because “qualified immunity is in part an enti‐\ntlement not to be forced to litigate the consequences of official \nconduct,” Mitchell v. Forsyth, 472 U.S. 511, 527 (1985), the de‐\nnial of qualified immunity is an appealable interlocutory de‐\ncision—at least insofar as it turns exclusively on a question of \nlaw, id. at 530. That qualification is significant: because our \nauthority extends only to questions of law, an officer can ob‐\ntain interlocutory review only if he refrains from contesting \nany fact that a reasonable jury could resolve against him. See \nJones v. Clark, 630 F.3d 677, 680 (7th Cir.2011) (“In a collateral‐\norder appeal …, where the defendants say that they accept \nthe plaintiff’s version of the facts, we will take them at their \nword and consider their legal arguments in that light. If, how‐\never, we detect a back‐door effort to contest the facts, we will \nreject it and dismiss the appeal for want of jurisdiction.”). \nBenner does so here. For purposes of this appeal, he accepts \nas true Rainsberger’s version of all facts that are in material \ndispute—most significantly, that he knowingly or recklessly \nmade false or misleading statements in the affidavit that se‐\ncured Rainsberger’s arrest. In what follows, then, we recount \nthe facts that we must take as true, drawing all inferences in \nRainsberger’s favor. The legal question that we must decide \nis whether Benner is entitled to qualified immunity on these \nfacts. \n A. \n Rainsberger was the primary caregiver for his mother, \nRuth, who was 88 years old and suﬀering from dementia.1 \nRuth lived alone in an apartment in a high‐crime area; Rains‐\nberger lived nearby. He checked on her daily, did her grocery \n \n1 We will refer to the other members of the Rainsberger family by their \n\nfirst names for the sake of clarity. \n\f4 No. 17‐2521 \n\nshopping, and handled her finances. His siblings Robert and \nRebecca also helped care for Ruth, although they saw her less \nfrequently. \n At approximately 3:30 p.m. on November 19, 2013, Rains‐\nberger went to Ruth’s apartment and found the door un‐\nlocked. When he entered, he discovered Ruth lying facedown \non the floor with a blanket covering her shoulders and head. \nShe was breathing, but with diﬃculty. There was a large circle \nof dried blood on the blanket and a pool of congealed blood \non the floor. Rainsberger did not remove the blanket because \nhe believed that it was acting as a bandage, and he feared that \nthe bleeding would increase if he pulled it oﬀ. \n Rainsberger called 911 from his mother’s landline at 3:37 \np.m. He told the operator that someone had “bashed [his \nmother’s] head in.” He then called his brother Robert and told \nhim to come to the apartment immediately. Rainsberger \nwaited outside for the ambulance because Ruth’s apartment \nwas diﬃcult to locate within the complex. \n When paramedic Carl Wooldridge arrived, Rainsberger \ntold him that someone had “caved his mother’s head in.” \nWooldridge observed that the blanket covering Ruth’s head \nappeared to be stuck to a wound. He noticed “somewhat of a \nhole in [the blanket] where the wound was,” and when he \npeeled the blanket oﬀ, “there was a mark … on her forehead \nthat [he] believed to be an entrance wound.” Based on those \nobservations, Wooldridge told fire and ambulance personnel \nthat Ruth had been shot—a conclusion that the emergency \npersonnel thought odd, given the lack of blood splatter on the \nwalls or ceiling. As it turned out, Rainsberger, not \nWooldridge, had it right: Ruth died of blunt force trauma to \nthe head. Wooldridge later told Charles Benner, the detective \n\fNo. 17‐2521 5 \n\ninvestigating the murder, that he found it suspicious that \nRainsberger said that his mother’s head had been caved in \neven though he had not removed the blanket to look at her \ninjuries. \n Benner came to Ruth’s apartment roughly 40 minutes after \nRainsberger placed the 911 call. There was no sign of forced \nentry, and while some dresser drawers in Ruth’s bedroom \nwere open, their contents were undisturbed. Ruth’s check‐\nbook, credit cards, and some cash were found in the apart‐\nment. Her purse and prescription medication were not. \n Rainsberger and Robert, who had since arrived, voluntar‐\nily went to police headquarters to give statements to Benner. \nRainsberger said that he had last seen his mother the previous \nevening. After visiting her, he drove to Plainfield, which is \nroughly 25 miles away, to spend the evening with his wife. \nHe returned to his house the next morning, where he stayed \nuntil around 3:30 p.m. He then left home to check on his \nmother, stopping at Kroger on the way to buy an iced tea. He \ntold Benner that Ruth’s apartment was unlocked when he ar‐\nrived and that he found her lying wounded on the floor. He \nchecked the apartment for intruders and, finding none, called \n911. Rainsberger informed Benner that his mother was not \nphysically able to stand up and see through the peephole, so \nshe typically had to open the door to see who was there. And \nRainsberger said that Ruth had $80,000 to $100,000 in savings \nthat would be distributed to her three children upon her \ndeath. \n Robert told Benner that he had not seen Ruth for a few \ndays. He said that he had been at Rainsberger’s house when \nRainsberger called to tell him to come to Ruth’s apartment im‐\n\f6 No. 17‐2521 \n\nmediately. He explained that he had been living with Rains‐\nberger for a few months because he had lost his own home to \nforeclosure. \n Benner talked to Rainsberger’s sister Rebecca the next day. \nRebecca told Benner that she typically checked on her mother \nonce a week and had last seen her the day before the attack. \nSometime after his call with Rebecca, Benner asked the three \nsiblings to come to the station to review the results of Ruth’s \nautopsy. When they got there, however, Benner did not talk \nabout the autopsy. Instead, he accused Rainsberger and Rob‐\nert of murdering their mother for her money and asked them \nto take a polygraph. Upset at the accusation and at being \nlured to the station under false pretenses, they refused and \nleft. Roughly a week later, after obtaining counsel to represent \nthem, both Rainsberger and Robert agreed to go to the station \nto give fingerprints and submit to a DNA buccal swab. \n Benner did not wait for the results of the DNA tests before \nseeking to have Rainsberger arrested and charged. In early \nDecember 2013, Benner submitted a probable cause aﬃdavit \nto the Marion County prosecutor. But the prosecutor declined \nto pursue it, and Benner went back to find more evidence. \n Benner hoped that the results of the DNA tests would \nmake his case against Rainsberger. In March 2014, he noted in \nan email to a colleague that “[t]he victim’s sons are the sus‐\npects in this case and I am waiting for DNA results before any \narrest may be made.” But when the laboratory report came \nout in April 2014, it did not implicate Rainsberger—the DNA \nof two males was found on Ruth’s blanket and clothing, but \nneither Rainsberger nor Robert was a match. Benner took that \nresult in stride. Although the DNA test did not incriminate \n\fNo. 17‐2521 7 \n\nRainsberger, Benner did not think that it exonerated him ei‐\nther. (The same, of course, was true of Robert, but Benner was \nfocused on Rainsberger.) Benner reasoned that the unknown \nmale DNA on Ruth’s blanket and clothing might have been \nleft by emergency personnel rather than the killer. \n In May 2014, Benner went to the prosecutor with a second \nprobable cause aﬃdavit that was almost identical to the first. \nThe second aﬃdavit did not disclose the results of the DNA \ntest. But it added two pieces of evidence that Benner had ac‐\nquired since he presented the prosecutor with the first aﬃda‐\nvit. First, Benner used cell phone records to suggest that \nRainsberger had called Robert from Ruth’s apartment at 2:40 \np.m.—hours after Ruth was attacked and a little more than an \nhour before Rainsberger called 911. Second, he stated that cell \nphone tower location data could not place Rainsberger out‐\nside the area of his mother’s apartment during the relevant \nperiod. After receiving the second probable cause aﬃdavit, \nthe prosecutor went to Marion County Court and obtained a \nwarrant for Rainsberger’s arrest. Rainsberger was charged \nwith his mother’s murder and spent two months in jail before \nhe was released on bail. The prosecutor dismissed the case a \nyear later because of evidentiary problems. \n B. \n After the charges were dropped, Rainsberger sued Benner \nunder 42 U.S.C. § 1983, alleging that Benner had violated his \nFourth Amendment rights. Benner moved for summary judg‐\nment on the basis of qualified immunity, but the district court \ndenied the motion. It decided that a reasonable jury could find \nthat Benner knowingly or with reckless disregard for the truth \nmade false or misleading statements in the aﬃdavit. Probable \ncause did not exist without the false or misleading statements, \n\f8 No. 17‐2521 \n\nthe district court said, and because an oﬃcer who submits a \nmaterially misleading probable cause aﬃdavit violates \nclearly established Fourth Amendment law, it denied Benner \nqualified immunity. The district court’s order turned on the \nfollowing omissions and alleged lies.2 \n The phone records. The most damning addition to the sec‐\nond probable cause aﬃdavit was the suggestion that Rains‐\nberger called Robert’s cell phone from Ruth’s landline at 2:40 \np.m. on November 19. This placed Rainsberger at Ruth’s \napartment after she was injured and almost an hour before he \ncalled 911 for help. But the time stamp was inaccurate—and \nfor purposes of this appeal, we must assume that Benner \nknew it. A phone expert at the police department had ana‐\nlyzed the records and told Benner that the call had been \nrouted through a cell tower in Chicago, where it was one hour \nearlier. Thus, despite the 2:40 p.m. time stamp, the call had \nbeen placed at 3:40 p.m. Indianapolis time. It was the call that \nRainsberger had made to Robert just after he found Ruth and \ncalled 911. Benner chose to use the inaccurate and incriminat‐\ning time in his aﬃdavit. \n The Kroger video. Rainsberger had stopped at Kroger to buy \nan iced tea before going to Ruth’s apartment on the day of the \n\n \n2 Rainsberger complains about omissions in addition to those we detail \n\nhere. For example, he faults Benner for failing to include the results of the \nDNA test, the fact that Ruth lived in a high‐crime area, and the fact that \nshe would often open the door to strangers because she couldn’t see \nthrough the peephole. The district court chose not to determine whether \nthis information was material because it found probable cause lacking \neven without it. Because we agree that the hypothetical affidavit fails to \nestablish probable cause even without this evidence, we take the same ap‐\nproach as the district court. \n\fNo. 17‐2521 9 \n\nmurder. In the probable cause aﬃdavit, Benner described sur‐\nveillance video from Kroger that showed Rainsberger making \na trip to a trash can. According to Benner, Rainsberger “ap‐\npeared to pull out a straight object from his person which he \nplaced in the garbage can.” But the district court observed that \nnothing on the video shows Rainsberger “‘pulling’ the object \nfrom anywhere.” Benner also claimed that “[a]s [Rainsberger] \nplaced the object in the trash he appeared to look around for \ncameras.” But as the district court said, a reasonable jury \ncould find that Benner deliberately mischaracterized Rains‐\nberger’s behavior, which does not appear furtive on the video. \nAnd after watching the video ourselves, we agree with Rains‐\nberger that a reasonable jury could find that Benner intention‐\nally misled the prosecutor and magistrate in yet another re‐\nspect: by describing Rainsberger’s trash as a “straight object.” \nThat phrase was obviously designed to imply that Rains‐\nberger disposed of the murder weapon, but the object that \nRainsberger threw away looks far more like a soda can than a \n“straight object.”3 Viewed in Rainsberger’s favor, the video \ndepicts him carrying a small nondescript piece of trash \nthrough a parking lot and throwing it away near the entrance \nto the grocery store—in broad daylight and while other pa‐\ntrons are walking by. \n The evidence of burglary. Benner believed that Ruth’s at‐\ntacker was someone she knew rather than a thief. Consistent \nwith that theory, Benner swore in the aﬃdavit that nothing \n\n \n3 The district court did not address the shape of the trash, and its hypo‐\n\nthetical affidavit left intact Benner’s statement that “Rainsberger placed \nwhat appeared to be a straight object in the garbage can.” After viewing \nthe video in the light most favorable to Rainsberger, we refer to the waste \nsimply as “trash” in evaluating the affidavit. \n\f10 No. 17‐2521 \n\nhad been taken from the apartment. He noted that there was \nno sign of forced entry; that cash, a checkbook, and credit \ncards were still in the apartment; and that things were undis‐\nturbed apart from a few open drawers. But the district court \nconcluded that a jury could find that Benner intentionally \nmisled the prosecutor and magistrate in two respects. First, he \nfailed to tell them that Ruth’s purse and prescription medica‐\ntion were missing. Second, he stated that a lockbox containing \nsavings bonds was untouched and in plain view, even though \nthe lockbox was neither in plain view nor a repository of sav‐\nings bonds. \n Rainsberger’s concern for his mother. Benner described \nRainsberger as lacking concern for his mother. He stated that \nafter Rainsberger called 911, he “went outside to wait for the \nambulance” and “left his mother unattended until the police \narrived.” Benner conspicuously omitted Rainsberger’s expla‐\nnation for doing so—that he wanted to direct the ambulance \nto Ruth’s apartment, which was hard to find. And continuing \nwith this “callous son” theme, Benner asserted that when they \nwere questioned on the day of the attack, “[a]t no time did \nRobert or his brother, Rainsberger, ever ask me how their \nmom was doing or if they could get to the hospital to see her.” \nBenner knew, however, that Rainsberger was receiving up‐\ndates by text from his sister Rebecca, who was at the hospital, \nand that Rainsberger had expressed concern about how he \nwould get to the hospital from the police station. The district \ncourt concluded that a reasonable jury could find that Benner \nintentionally misled the prosecutor and magistrate. \n The polygraph. Benner claimed in the aﬃdavit that the \nRainsberger children “stormed out” of the police station after \nhe asked Rainsberger and Robert to take a polygraph test and \n\fNo. 17‐2521 11 \n\nthat he did not hear from them again. According to the district \ncourt, a reasonable jury could agree with Rainsberger that \nBenner’s description of the Rainsbergers’ departure was a lie, \nas was his claim that he didn’t hear from them again. \n II. \n Before us, Benner insists that he is entitled to qualified im‐\nmunity even if all of the disputed facts are true. Qualified im‐\nmunity involves a two‐pronged inquiry: (1) whether the facts, \nread in favor of the non‐moving party, amount to a constitu‐\ntional violation; and (2) whether the constitutional right was \nclearly established at the time of the alleged violation. McCo‐\nmas v. Brickley, 673 F.3d 722, 725 (7th Cir. 2012). The oﬃcer \nwins if the answer to either question is “no.” Jacobs v. City of \nChicago, 215 F.3d 758, 766 (7th Cir. 2000). Courts often start \nwith the second question, because if the law was not clearly \nestablished, there is no need to tackle the (often harder) ques‐\ntion whether the challenged conduct violated the Constitu‐\ntion. See Pearson v. Callahan, 555 U.S. 223, 236–42 (2009). This \ncase requires us to confront both issues, however, so we begin \nby analyzing whether Benner’s alleged conduct violated \nRainsberger’s Fourth Amendment rights. \n A. \n An officer violates the Fourth Amendment if he intention‐\nally or recklessly includes false statements in a warrant appli‐\ncation and those false statements were material to a finding of \nprobable cause. Hart v. Mannina, 798 F.3d 578, 591 (7th Cir. \n2015). An officer similarly violates the Fourth Amendment if \nhe intentionally or recklessly withholds material information \nfrom a probable cause affidavit. Whitlock v. Brown, 596 F.3d \n406, 410–11 (7th Cir. 2010). We use a straightforward method \n\f12 No. 17‐2521 \n\nto determine whether the alleged lies or omissions are mate‐\nrial: “We eliminate the alleged false statements, incorporate \nany allegedly omitted facts, and then evaluate whether the re‐\nsulting ‘hypothetical’ affidavit would establish probable \ncause.” Betker v. Gomez, 692 F.3d 854, 862 (7th Cir. 2012). \n With the lies stripped and the omissions added, Benner’s \ncase for probable cause boils down to this: Ruth’s murderer \nmight have been someone she knew, because the attack was \nnot necessarily connected to a burglary. Some drawers had \nbeen opened and her purse and medication were missing; at \nthe same time, there was no sign of a forced entry, and Ruth’s \ncheckbook, credit cards, and some cash were still in the apart‐\nment. Rainsberger had a key to her apartment, and cell phone \nrecords did not rule out the possibility that he was in the vi‐\ncinity of her apartment complex when the attack happened. \nShortly before he found his mother and called 911, Rains‐\nberger stopped at a Kroger across the street from his mother’s \napartment to buy an iced tea. He walked in plain view \nthrough the Kroger parking lot carrying a piece of trash, \nwhich he threw away in a receptacle by a Redbox machine on \nhis way into the store. He correctly described Ruth’s injury as \na blow to the head, even though he had not removed the blan‐\nket to see the wound. In contrast, the first responder, who did \nremove the blanket, initially thought that Ruth had been shot. \nRainsberger and his two siblings would inherit about $33,000 \napiece if his mother died. When Benner brought the Rains‐\nberger children to the police station under false pretenses, \nRainsberger and his brother refused Benner’s request that \nthey take a polygraph test. A week later, they voluntarily gave \nfingerprints and submitted to a DNA buccal swab. \n\fNo. 17‐2521 13 \n\n As we have explained before, “probable cause is a \ncommon‐sense inquiry requiring only a probability of \ncriminal activity; it exists whenever an officer or a court has \nenough information to warrant a prudent person to believe \ncriminal conduct has occurred.” Whitlock, 596 F.3d at 411. It \ndoes not require proof of a crime; it is about “the degree of \nsuspicion that attaches to particular types of non‐criminal \nacts.” Illinois v. Gates, 462 U.S. 213, 243 n.13 (1983). \nImportantly, a probable cause inquiry does not take each fact \nin isolation; it depends on the totality of the circumstances. \nDistrict of Columbia v. Wesby, 138 S. Ct. 577, 588 (2018). \nAssessing the hypothetical affidavit therefore requires us to \ndetermine whether Rainsberger’s behavior was suspicious \nenough that a prudent person aware of the full picture \npainted in the hypothetical affidavit could believe that \nRainsberger murdered his mother. \n A prudent person could not draw that conclusion on these \nfacts. Many of them would be true of most children of aging \nparents: that Rainsberger had a key to her apartment, checked \non her frequently, and stood (along with his siblings) to in‐\nherit whatever she left behind. These unremarkable facts \nwould be reason to suspect Rainsberger only if other infor‐\nmation cast them in a suspicious light. Benner sought that \nlight with his theory that Ruth was murdered by someone she \nknew rather than a thief. Yet the evidence on that score was \nconflicting: while some valuables remained in the apartment, \nothers were missing. Benner also suggested that Rains‐\nberger’s refusal to take a polygraph test reflected his con‐\nsciousness of guilt. But that inference is weak, given that Ben‐\nner had lured the Rainsberger children to the station with a \nlie and met them with a hostile demand for a polygraph test \nwhen they arrived. And the fact that Rainsberger tossed a \n\f14 No. 17‐2521 \n\npiece of trash into a garbage can in broad daylight on his way \ninto Kroger is neither here nor there. Without what a jury \ncould reasonably consider to be a grossly misleading descrip‐\ntion of the surveillance video, this trip to a trash can certainly \ndoes not support the inference that Rainsberger disposed of \nthe murder weapon before going to Ruth’s apartment. \n Benner’s best argument for turning this package of facts \ninto grounds for probable cause is that Rainsberger correctly \ndescribed his mother as having been hit in the head even \nthough he had not looked under the blanket. But this fact can‐\nnot carry the weight Benner needs it to. Rainsberger’s state‐\nment was a reasonable inference from observable evidence; \nhe walked into his mother’s house, saw her lying on the floor \nand bleeding from her head, and concluded that someone had \nhit her over the head. The cause of her injury was not so diffi‐\ncult to discern that knowing it suggested inside knowledge. \nIndeed, the emergency personnel thought that the first re‐\nsponder’s competing theory—that Ruth had been shot—was \ncounterintuitive, given the lack of telltale blood splatter on the \nwalls or ceiling. \n The totality of these circumstances supports nothing more \nthan bare suspicion, and the Court has emphasized that prob‐\nable cause requires more than that. See Brinegar v. United \nStates, 338 U.S. 160, 175 (1949) (probable cause “mean[s] more \nthan bare suspicion”); Henry v. United States, 361 U.S. 98, 104 \n(1959) (“Under our system suspicion is not enough for an of‐\nficer to lay hands on a citizen.”); see also Ebert v. Gaetz, 610 F.3d \n404, 413 (7th Cir. 2010) (“The officers must have more than a \nbare suspicion that they have the right guy … .”); Sherouse v. \nRatchner, 573 F.3d 1055, 1062 (10th Cir. 2009) (“Where an of‐\n\fNo. 17‐2521 15 \n\nficer observes inherently innocuous behavior that has plausi‐\nble innocent explanations, it takes more than speculation or \nmere possibility to give rise to probable cause to arrest.”). If \nprobable cause exists here, then anyone who experiences the \ntragedy of discovering a murdered family member—and who \ncorrectly assesses the cause of the injury and recently threw \nsomething away in a public trash can—can be arrested for \nmurder. Probable cause is a low bar, but this evidence does \nnot clear it. \n B. \n Benner tries to bolster the case for probable cause with in‐\nculpatory facts that he did not include in the aﬃdavit. For ex‐\nample, he asserts that in his training and experience as a hom‐\nicide detective, an attacker who covers his victim’s head often \nhas a personal relationship with the victim. He also says that \nin his experience, family members are typically eager to take \npolygraph tests so that the oﬃcer can get to work on finding \nthe real culprit. According to Benner, this additional infor‐\nmation can make up the diﬀerence if we think that the incul‐\npatory evidence recited in the aﬃdavit falls short. \n Benner recognizes that we have never incorporated incul‐\npatory evidence into a hypothetical aﬃdavit in a civil suit like \nthis.4 But we have never expressly refused to do so either, and \n\n \n4 That said, he does stretch for some support from Knox v. Smith, 342 F.3d \n\n651 (2003), which arose in the distinct context of a parole violation. In \nKnox, the plaintiff alleged that his parole officer lacked reasonable suspi‐\ncion to believe that he had violated the conditions of his parole when she \nrequested a warrant for his arrest on that ground. Id. at 656. He also al‐\nleged that at least one of the facts in the parole violation report prepared \nby the defendant and her supervisor was a lie. Id. at 658. According to \nBenner, Knox supports his “beyond the four corners” approach because \n\f16 No. 17‐2521 \n\nhe argues that now is the time for us to embrace this approach. \nAfter all, he says, we go outside the four corners of the aﬃda‐\nvit to consider omitted exculpatory evidence, so why not do \nthe same for omitted inculpatory evidence? He emphasizes \nthat oﬃcers do not have an obligation to include every incul‐\npatory detail in a probable cause aﬃdavit and warns that if \nwe decline to consider omitted inculpatory facts, oﬃcers will \nfeel forced to recite every detail in an aﬃdavit to bolster any \nlater claim of qualified immunity. He maintains that this \nwould be ineﬃcient and burdensome, particularly when the \ntimeline is tight. And he contends that this rule might prompt \noﬃcers to forgo warrants altogether, because if they are sued \nfor making a warrantless arrest, they can defend by drawing \non all available facts—not merely those they chose to include \nin an aﬃdavit—to demonstrate that probable cause existed. \n Benner’s argument is misguided. It assumes that this suit \nis about whether Benner violated the Fourth Amendment’s \nprohibition on “unreasonable searches and seizures” by ar‐\nresting Rainsberger without probable cause. But that is not \nthe allegation here. Rainsberger has sued Benner for violating \nthe Fourth Amendment’s guarantee that “no Warrants shall \n\n\n \nwe relied on inculpatory information that was outside the parole violation \nreport in concluding that the officer was entitled to qualified immunity. \nBut the parole violation report in Knox was not the same thing as a proba‐\nble cause affidavit; it was a document that the officer and her supervisor \nprepared the day after the warrant had issued. Id. at 655. Indeed, there \nwas no affidavit in Knox that could have marked the boundaries of our \ninquiry, because the parole officer requested a warrant via a page sent to \nher supervisor. Id. And Knox contains no discussion of what the officer’s \nsupervisor knew when the officer requested the warrant, much less the \n“four corners” issue that Benner raises. \n\fNo. 17‐2521 17 \n\nissue, but upon probable cause, supported by Oath or affir‐\nmation … .” U.S. CONST. amend. IV. The Warrant Clause is \nnot merely a probable‐cause guarantee. It is a guarantee that \na warrant will not issue unless a neutral and disinterested \nmagistrate independently decides that probable cause exists. \nFranks v. Delaware, 438 U.S. 154, 164 (1978) (“The bulwark of \nFourth Amendment protection, of course, is the Warrant \nClause, requiring that, absent certain exceptions, police obtain \na warrant from a neutral and disinterested magistrate before \nembarking upon a search.”); Johnson v. United States, 333 U.S. \n10, 14 (1948) (“Its protection consists in requiring that [eviden‐\ntiary] inferences be drawn by a neutral and detached magis‐\ntrate instead of being judged by the officer engaged in the of‐\nten competitive enterprise of ferreting out crime.”). A magis‐\ntrate can assess only the information that she is given; there‐\nfore, in testing the validity of a warrant, we consider only ev‐\nidence that the magistrate had.5 And “[i]f an affidavit is the \nonly matter presented to the issuing magistrate … the war‐\nrant must stand or fall solely on the contents of the affidavit.” \nUnited States v. Roth, 391 F.2d 507, 509 (1967); see also United \nStates v. Orozco, 576 F.3d 745, 748 (7th Cir. 2009) (“When, as \nhere, an affidavit is the only evidence presented to a judge to \nsupport a search warrant, the ‘validity of the warrant rests \n\n\n \n5 For the sake of clarity, we emphasize that inculpatory evidence not in‐\n\ncluded in the affidavit may be admissible with respect to an issue other \nthan whether the warrant demonstrates probable cause. For example, it \nmight be evidence of whether an officer acted knowingly or recklessly \nwhen he prepared the affidavit. See, e.g., United States v. Williams, 718 F.3d \n644, 650 (7th Cir. 2013) (noting that the officers’ omission of additional in‐\nculpatory evidence provided “a reasonable basis to believe that the police \ndid not intend to mislead”). \n\f18 No. 17‐2521 \n\nsolely on the strength of the affidavit.’” (citation omitted)). Ex‐\ntrinsic evidence of guilt “cannot be used … to augment an \notherwise defective affidavit.” Roth, 391 F.2d at 509; see also \nUnited States v. Harris, 464 F.3d 733, 739 (7th Cir. 2006) (“Con‐\nsidering new information … that supported a finding of prob‐\nable cause was beyond the trial court’s analytical reach. Ra‐\nther, its consideration of new information omitted from the \nwarrant affidavit should have been limited to facts that did \nnot support a finding of probable cause.”). \n Benner argues that a different rule should apply in a civil \ncase to give the police officer greater protection when his in‐\ndividual liability is on the line. But the first prong of the qual‐\nified immunity analysis is not the one designed to specially \nprotect the officer—that comes at the second prong, which \nlimits the officer’s liability to violations of clearly established \nlaw. In the first inquiry, we analyze whether the facts before \nus “make out a violation of a constitutional right.” Pearson, \n555 U.S. at 232. And the Fourth Amendment is violated when \nthe magistrate’s probable‐cause determination is made based \non an affidavit that fails to establish probable cause, no matter \nwhat extra‐affidavit information the officer had. Roth, 391 \nF.2d at 509; see also Orozco, 576 F.3d at 748. Moreover, while \nwe have never addressed the issue that Benner raises, we \nhave held that other aspects of Franks apply equally in civil \nand criminal cases. See Perlman v. City of Chicago, 801 F.2d 262, \n264–65 (7th Cir. 1986) (holding that Franks’s requirement of a \n“substantial preliminary showing” that the officer deliber‐\nately misrepresented facts in a warrant affidavit applies in \ncivil as well as criminal actions). There is no reason to follow \na different course here. See id. (asserting that there is “no rea‐\nson to apply a standard different than that established by \nFranks to a civil action for damages based on an allegation that \n\fNo. 17‐2521 19 \n\na police officer deliberately misrepresented facts in a warrant \naffidavit”). \n It bears emphasis that there is no lack of symmetry be‐\ntween our willingness to go beyond the affidavit to consider \nevidence of innocence while staying strictly within it for evi‐\ndence of guilt. Both rules are designed to protect the integrity \nof the warrant process. Refusing to add inculpatory infor‐\nmation to a hypothetical affidavit enforces the Warrant \nClause’s requirement that warrants issue based on the judg‐\nment of a neutral magistrate rather than that of an interested \npolice officer. Adding exculpatory information to a hypothet‐\nical affidavit permits us to determine whether the officer dis‐\ntorted the magistrate’s judgment by suppressing material ev‐\nidence.6 An affidavit that misleads by lies or omission under‐\ncuts the magistrate’s ability to make an independent probable \ncause determination. See Franks, 438 U.S. at 165 (“Because it is \nthe magistrate who must determine independently whether \nthere is probable cause, it would be an unthinkable imposi‐\ntion upon his authority if a warrant affidavit, revealed after \nthe fact to contain a deliberately or recklessly false statement, \nwere to stand beyond impeachment.” (citations omitted)). It \nalso vitiates the Clause’s requirement that probable cause be \nsupported by “Oath or affirmation.” As the Court has ob‐\nserved, this language demands a “truthful” showing “in the \n\n \n6 The same concern drives our practice of excluding false information from \n\na hypothetical affidavit. An affidavit that contains material lies contami‐\nnates the magistrate’s assessment of probable cause. If probable cause ex‐\nists without the lies, then the warrant issued on the strength of the hon‐\nestly sworn facts. It therefore satisfies the Fourth Amendment’s require‐\nment that a warrant issue only “upon probable cause” demonstrated by \nfacts “supported by Oath or affirmation.” U.S. CONST. amend. IV. \n\f20 No. 17‐2521 \n\nsense that the information put forth is believed or appropri‐\nately accepted by the affiant as true.” Id. An officer who \nswears that presented facts support probable cause when he \nknows that suppressed facts destroy it does not act truthfully. \nHe therefore violates the Warrant Clause, which “surely takes \nthe affiant’s good faith as its premise.” Id. at 164. \n In sum, Benner’s argument that he could have obtained a \nvalid warrant if he had proceeded differently is beside the \npoint. A hypothetical affidavit is not designed to determine \nwhether an officer could have satisfied the Warrant Clause; it \nis to determine whether he actually satisfied it. And Benner \ndid not, at least if the disputed facts are resolved in Rains‐\nberger’s favor. \n III. \n We now turn to the second prong of the qualified immun‐\nity analysis: whether it would have been “clear to a reasonable \noﬃcial that his or her conduct was unlawful in the situation.” \nCarvajal v. Dominguez, 542 F.3d 561, 566 (7th Cir. 2008). Benner \nargues that even if he violated Rainsberger’s Fourth Amend‐\nment rights, the district court still wrongfully denied him \nqualified immunity. He concedes—as he must—that it vio‐\nlates clearly established law “to use deliberately falsified alle‐\ngations to demonstrate probable cause.” Franks, 438 U.S. at \n168. Even so, Benner says, he is entitled to qualified immunity \nif the facts of the hypothetical aﬃdavit demonstrate “arguable \nprobable cause”—in other words, if a competent oﬃcer faced \nwith the facts in the hypothetical aﬃdavit could reasonably if \nmistakenly believe that those facts were suﬃcient to establish \nprobable cause. Benner’s argument takes some untangling, \nbut its logic is this: (1) only material lies and omissions violate \nthe Fourth Amendment, so the materiality of those lies and \n\fNo. 17‐2521 21 \n\nomissions must be clearly established; (2) the court evaluates \nmateriality by determining whether a hypothetical aﬃdavit \nwould demonstrate probable cause; (3) if a competent oﬃcer \nreviewing the hypothetical aﬃdavit could reasonably but \nmistakenly conclude that it established probable cause, then \nthe materiality of the false or omitted information was not \n“clearly established.” \n We have never applied the test that Benner proposes. \nThere is a reason: it doesn’t make sense. To begin with, Ben‐\nner’s framing has the proverbial reasonable oﬃcer facing a \nsituation diﬀerent from the one Benner did. Qualified immun‐\nity depends on whether it would have been “clear to a reason‐\nable oﬃcer that his conduct was unlawful in the situation he \nconfronted.” Wesby, 138 S. Ct. at 590 (emphasis added) (citation \nomitted). In other words, the court puts a competent oﬃcer in \nthe defendant’s shoes, facing the same choice that the defend‐\nant did. Benner did not face a choice about whether the facts \nin the hypothetical aﬃdavit established probable cause. He \nfaced a choice about whether to make false or misleading \nstatements in the aﬃdavit. (He has also been faulted for ex‐\ncluding exculpatory evidence, but that presents diﬀerent is‐\nsues that we’ll get to below.) Thus, the relevant question is \nwhat a well‐trained oﬃcer would have thought about the law‐\nfulness of that action. What Benner is really arguing, then, is \nthat he is entitled to qualified immunity if a well‐trained of‐\nficer could “reasonably but mistakenly conclude” that it was \nlawful to include an incriminating lie in an aﬃdavit because \nthe lie wasn’t material to the probable cause determination. \nSee Anderson v. Creighton, 483 U.S. 635, 641 (1987). \n Of course, a competent oﬃcer would not even entertain \nthe question whether it was lawful for him to lie in a probable \n\f22 No. 17‐2521 \n\ncause aﬃdavit. The hypothetical oﬃcer in the qualified im‐\nmunity analysis is one who acts in good faith. That is what the \nstandard of “objective reasonableness” is designed to capture. \nSee Harlow v. Fitzgerald, 457 U.S. 800, 815–19 (1982); Malley v. \nBriggs, 475 U.S. 335, 345 (1986); cf. United States v. Leon, 468 \nU.S. 897, 922–23 (1984) (establishing the “good faith excep‐\ntion” to the exclusionary rule). Indeed, protecting oﬃcers \nwho act in objective good faith is the justification for qualified \nimmunity. Harlow, 457 U.S. at 815, 819 n.34 (explaining that \nqualified immunity applies to suits “arising from actions \nwithin the scope of an oﬃcial’s duties and in objective good \nfaith” (emphasis added) (internal quotation omitted)). It \nwould be flatly inconsistent with that justification to imagine \na competent oﬃcer considering the question whether a lie \nhelpful to demonstrating probable cause is so helpful that he \nshould not tell it. That is neither a reasonable question to ask \nnor a reasonable mistake to make. \n Nonetheless, Benner maintains that we have previously \nembraced his approach. He seizes on a sentence in Betker v. \nGomez, in which we asserted that “[a]n officer who knowingly \nor recklessly submitted an affidavit containing false state‐\nments may still get qualified immunity if he can establish that \nhe had an objectively reasonable basis for believing the facts \nin the affidavit were sufficient to establish probable cause.” \nSee 692 F.3d at 860. Taken out of context, this sentence super‐\nficially supports Benner’s position that he is entitled to quali‐\nfied immunity if the hypothetical affidavit establishes “argu‐\nable probable cause.” But his cherry‐picking distorts what we \nactually said. In the very next sentence we explained: “But \nqualified immunity does not extend where an officer know‐\ningly or recklessly made false statements and ‘no accurate in‐\nformation sufficient to constitute probable cause attended the \n\fNo. 17‐2521 23 \n\nfalse statements.’” Id. (quoting Lawson v. Veruchi, 637 F.3d 699, \n705 (7th Cir. 2011)). Our analysis then proceeded as we do \nhere: we constructed a hypothetical affidavit, determined \nwhether it established actual probable cause, and denied \nqualified immunity because “immunity does not extend \n‘[w]here the judicial finding of probable cause is based solely \non information the officer knew to be false or would have \nknown was false had he not recklessly disregarded the \ntruth.’” Id. (alteration in original) (quoting Olson v. Tyler, 771 \nF.2d 277, 282 (7th Cir. 1985)). We never asked, much less ana‐\nlyzed, whether the officer in Betker had made a reasonable \nmistake about the materiality of his lies. \n To summarize: if an officer knowingly or recklessly in‐\ncludes false information in an affidavit and that information \nis not material, he will not be liable in a § 1983 action because \nthe plaintiff will not be able to prove a constitutional viola‐\ntion. But if that information is material, the officer is not enti‐\ntled to qualified immunity. The unlawfulness of using delib‐\nerately falsified allegations to establish probable cause could \nnot be clearer. See, e.g., Lawson, 637 F.3d at 705 (“[I]t [i]s clearly \nestablished ‘that a warrant request violates the Fourth \nAmendment if the requesting officer knowingly, intention‐\nally, or with reckless disregard for the truth, makes false state‐\nments in requesting the warrant and the false statements were \nnecessary to the determination that a warrant should issue.’” \n(citation omitted)); Olson, 771 F.2d at 281 (“If an officer sub‐\nmitted an affidavit that contained statements he knew to be \nfalse or would have known were false had he not recklessly \ndisregarded the truth and no accurate information sufficient \nto constitute probable cause attended the false statements, not \nonly is his conduct the active cause of the illegal arrest, but he \n\f24 No. 17‐2521 \n\ncannot be said to have acted in an objectively reasonable man‐\nner.”). And the plaintiff need not show that the materiality of \nthe lie would have been clear to a competent officer. The qual‐\nified immunity analysis uses the perspective of an officer act‐\ning in good faith, and an officer acting in good faith would \nnot entertain that question. \n An officer sued for failing to include materially \nexculpatory facts in a probable cause affidavit is differently \nsituated. It violates clearly established law to “intentionally or \nrecklessly withhold material information from a warrant \napplication.” Whitlock, 596 F.3d at 408. But while a competent \nofficer would not ask whether the Fourth Amendment \npermits him to tell a particular lie, a competent officer \nwould—indeed, must—consider whether the Fourth \nAmendment obligates him to disclose particular evidence. \nBecause an officer acting in good faith could make a \nreasonable mistake about his disclosure obligation, the \nmateriality of omitted facts, unlike the materiality of false \nstatements, is properly part of the qualified‐immunity \nanalysis. We have repeatedly held, therefore, that an officer \nviolates the Fourth Amendment by omission only if “it would \nhave been clear to a reasonable officer that the omitted fact \nwas material to the probable‐cause determination.” See Leaver \nv. Shortess, 844 F.3d 665, 669 (7th Cir. 2016); see also Olson v. \nTyler, 825 F.2d 1116, 1121 (7th Cir. 1987) (“[O]nly where a \nreasonable officer can conclude that a withheld fact is \nirrelevant to probable cause should such an officer who \nwithholds a known (or recklessly disregarded) fact be \nprotected with qualified immunity.”). \n Whitlock provides an illustration. See 596 F.3d 406. There, \ncampers picked up apparently abandoned bags in an Indiana \n\fNo. 17‐2521 25 \n\nstate park, intending to turn them in to park authorities so \nthat the property could be returned to its rightful owner. Id. \nat 408–09. But they forgot for several hours, the bags were re‐\nported stolen, and the campers were arrested for criminal \nconversion. Id. at 409. They sued the officer who obtained the \nwarrant, alleging that he withheld a material fact by failing to \ninclude the campers’ innocent explanation for taking the bags \nin his probable cause affidavit. Id. at 410. We held that the of‐\nficer was entitled to qualified immunity. Because Indiana law \non criminal conversion was undeveloped, a reasonable officer \nwould not necessarily have known that the campers’ explana‐\ntion for taking the bags was material to the probable cause \ndetermination. Id. at 413. A well‐trained officer could make a \nreasonable mistake about whether a given fact would negate \nprobable cause. \n Here, Benner has not argued that it would have been un‐\nclear to a reasonable oﬃcer that any of the information that \nhe omitted was material to the probable cause determination. \nThus, we need not address whether he made any reasonable \nmistakes in that regard. \n * * * \n The district court correctly held that Benner is not entitled \nto qualified immunity, and its judgment is AFFIRMED.\n[END_CASE]", "role": "user" } ]
8,443,847	William RAINSBERGER v. Charles BENNER	Rainsberger v. Benner	2019-01-15	No. 17-2521	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Barrett, Hamilton, Wood", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415273/", "author_raw": ""}]}	BARRETT	HAMILTON	WOOD	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/8443847/	Published	0	1	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: William RAINSBERGER v. Charles BENNER\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-15\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]", "role": "user" } ]
4,582,207		EOR Energy, LLC v. Illinois Environmental Protec	2019-01-16	17-3107	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before WOOD, Chief Judge, and FLAUM and HAMILTON, Cir‐ cuit Judges.", "parties": "", "opinions": [{"author": "Diane Pamela Wood", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________ \n No. 17‐3107 \n EOR ENERGY LLC, et al., \n Plaintiffs‐Appellants, \n v. \n\n ILLINOIS ENVIRONMENTAL PROTECTION AGENCY, et al., \n Defendants‐Appellees. \n ____________________ \n\n Appeal from the United States District Court for the \n Central District of Illinois. \n No. 3:16‐cv‐03122 — Sue E. Myerscough, Judge. \n ____________________ \n\n ARGUED SEPTEMBER 21, 2018 — DECIDED JANUARY 16, 2019 \n ____________________ \n\n Before WOOD, Chief Judge, and FLAUM and HAMILTON, Cir‐\ncuit Judges. \n WOOD, Chief Judge. In March 2007 the Illinois Environmen‐\ntal Protection Agency (IEPA) brought charges before the Illi‐\nnois Pollution Control Board (the Board) against EOR Energy, \nLLC (EOR) and AET Environmental, Inc. (AET). The IEPA ac‐\ncused EOR and AET of violating the Illinois Environmental \nProtection Act, 415 ILCS 5/1–5/58, by transporting hazardous‐\nwaste acid into Illinois, storing that waste, and then injecting \n\f2 No. 17‐3107 \n\nit into EOR’s industrial wells in Illinois. EOR challenged its \nprosecution by arguing that under the environmental law \nscheme put in place by Illinois, the IEPA and the Board do not \nhave jurisdiction over EOR’s acid dumping. EOR took that ar‐\ngument all the way through the Illinois courts, losing at every \nturn. The state courts determined that under Illinois law, \nEOR’s jurisdictional argument is meritless. \n Having lost in the state courts, EOR has turned to the fed‐\neral courthouse. It would like the federal district court to issue \na declaratory judgment that under federal law, the IEPA and \nthe Board do not have jurisdiction over any future attempts \nto dump similar acidic waste into its wells. The district court \ndismissed the case on several grounds: the Eleventh Amend‐\nment, issue preclusion, and a hint of Rooker‐Feldman, to the \nextent that EOR was trying to undo the adverse decisions \nfrom the state courts. We agree with the district court that this \nsuit cannot proceed in federal court: it is blocked by claim and \nissue preclusion; in some respects Rooker‐Feldman deprives \nthe district court of subject‐matter jurisdiction; and to the ex‐\ntent that anything else remains, EOR is stymied by the Elev‐\nenth Amendment. \n In 2002 a tire production facility in Colorado experienced \nan emergency overheating of industrial acid. AET Environ‐\nmental was hired by the plant to dispose of the acid. When it \ncould not find a nearby waste disposal plant that would ac‐\ncept the acid, AET decided to ship the acid to EOR, an oil com‐\npany with wells in Illinois. EOR stored the acid in Illinois for \ntwo years. At that point, it decided to inject some of the acid \ninto its wells. It ultimately disposed of the rest of the acid after \nseveral inspections and investigations into the safety of the \nacid as potentially dangerous hazardous waste. Five years \n\fNo. 17‐3107 3 \n\nlater, the IEPA brought charges before the Board against EOR \nand AET (collectively EOR), identifying the transportation, \nstorage, and injection of the acid as violations of Illinois envi‐\nronmental law. In June 2012, the IEPA filed an unopposed \nmotion for summary judgment. The Board granted that mo‐\ntion and imposed $60,000 in sanctions against AET and \n$200,000 against EOR. EOR then filed a motion for reconsid‐\neration, arguing for the first time that the Board did not have \njurisdiction under state law over its suit. EOR asserted that it \nwas not injecting “waste” into its wells. Instead, it said, it was \nmerely injecting an acid that was used to treat the wells and \naid in petroleum extraction. Therefore, according to EOR, the \nIllinois Department of Natural Resources (the Department) \nhad exclusive jurisdiction over EOR’s injection of acid into a \n“Class II well” under the Illinois Oil and Gas Act, 225 ILCS \n725/1. The Board rejected this argument and denied EOR’s \nmotion for reconsideration. \n EOR appealed directly to the Appellate Court of Illinois \n(Fourth District), which affirmed the Board’s decision. E.O.R. \nEnergy, LLC v. Pollution Control Bd., 2015 IL App (4th) 130443, \n¶ 100 (2015). The Appellate Court emphasized that this was a \nmatter of state law, specifically Illinois’s “comprehensive stat‐\nutory structure for the regulation of underground injection of \nmaterials into wells in Illinois,” although the statutory scheme \nwas “promulgated with federal approval.” Id. at ¶ 83. The \ncourt interpreted the Illinois Environmental Protection Act as \ngiving the Board jurisdiction to decide this type of case, and \nthe IEPA jurisdiction to enforce this matter, “[b]ecause the \nacid material was both a ‘waste’ and a ‘hazardous waste’ \nwithin the meaning of the Act.” Id. at ¶¶ 72–80. It further held \nthat not only was the Department’s jurisdiction in this area \n\f4 No. 17‐3107 \n\nnot exclusive; it was non‐existent. The court held that the De‐\npartment’s authority is limited to the injection of certain fluids \nassociated with oil and gas production. Id. at ¶¶ 81–88. Both \nthe Supreme Court of Illinois, E.O.R. Energy, LLC v. Pollution \nControl Bd., 396 Ill. Dec. 175 (2015), and the Supreme Court of \nthe United States, E.O.R. Energy, LLC v. Illinois Pollution Con‐\ntrol Bd., 136 S. Ct. 1684 (2016), declined to hear EOR’s appeals. \n Almost immediately after losing in state court, EOR and \nAET filed this action, purportedly seeking a declaratory judg‐\nment through the citizen‐suit provisions of the two federal \nlaws—the Resource Conservation and Recovery Act, 42 \nU.S.C. §§ 6901–6992k, and the Safe Drinking Water Act, 42 \nU.S.C. §§ 300f–300j‐27—that allow states to develop their own \nstatutory schemes after obtaining federal approval. As it did \nin the state‐court action, EOR argues that Class II injection \nwells in Illinois are exclusively regulated by the Department, \nand so the IEPA is not empowered to require EOR to obtain a \nClass I permit or otherwise prosecute EOR for (as it describes \nin its brief) trying “to use cheap or off‐spec acid similar to that \nused in the 2002‐2004 acidization” into its Class II wells. The \ndistrict court granted the IEPA’s motion to dismiss for failure \nto state a claim upon which relief can be granted. We review \nthat dismissal de novo. Kubiak v. City of Chicago, 810 F.3d 476, \n480 (7th Cir. 2016). \n EOR’s complaint, which we must accept as true at this \nstage, paints a clear picture of what it would like to do. EOR \nwants to continue injecting the hazardous acid into its wells, \nbut this time it would like to do so armed with a declaratory \njudgment from a federal court that will protect it from another \nenforcement action brought by the IEPA and another penalty \n\fNo. 17‐3107 5 \n\nimposed by the Board. As EOR puts it, it would like to con‐\nduct these operations “without fear of a similar ordeal as they \nare currently enduring.” It cites past litigation costs and the \nenforcement of the state court’s order—through fines and the \ndirection to obtain permits or cease unlawful conduct—as the \nkinds of harms it seeks to avoid with a federal court order. \n We emphatically reject this undisguised attempt to exe‐\ncute an end‐run around the state court’s decision. That court \nhas considered and ruled on EOR’s arguments about the dis‐\ntribution of power among Illinois’s environmental agencies. \nFirst, its decision is final. Second, there is no federal interest \nin which state agency is authorized to take action. And above \nall, EOR ignores the duty of the federal courts to respect state‐\ncourt judgments and the jurisdictional barrier that would ex‐\nist if what it really wants is lower federal‐court review of the \nstate‐court results. \n To the extent EOR wanted the district court and now this \ncourt to review and set aside the state court’s adverse deci‐\nsion, it runs into the Rooker‐Feldman doctrine, under which \nlower federal courts lack jurisdiction to review state‐court \njudgments or to decide matters inextricably related to state \ncourt decisions. See Rooker v. Fidelity Trust Co., 263 U.S. 413, \n415–16 (1923); District of Columbia Court of Appeals v. Feldman, \n460 U.S. 462, 482–86 (1983); Exxon Mobil Corp. v. Saudi Basic \nIndus. Corp., 544 U.S. 280, 284 (2005). \n The heart of EOR’s claim is that the Illinois Appellate \nCourt declared the wrong rule of law and that we should cor‐\nrect it. EOR would like us to hold that the IEPA and the Board \nindeed lack jurisdiction to hold EOR accountable for dump‐\ning acidic waste into its wells. But if EOR believed that the \n\f6 No. 17‐3107 \n\nIllinois court got it wrong, its remedy was to ask the state su‐\npreme court, and thereafter the Supreme Court of the United \nStates, to correct the error. It filed the necessary petitions, but \nthose courts chose not to hear its case. That was the end of the \nline. There is no asterisk appended to the Rooker‐Feldman doc‐\ntrine saying that it evaporates once certiorari is denied. The \nstate court has adjudicated EOR’s claim, and that is that: it \nmay not come to the federal courthouse for Round Two. \n It may be more accurate, however, to read EOR’s com‐\nplaint and briefs in this court as acquiescing in the state \ncourt’s judgment, including the penalties it imposed, and ask‐\ning simply for a new ruling on the pure issues of law. In that \ncase, we do not face a Rooker‐Feldman problem, but EOR is no \nbetter off. The reason is simple: litigants cannot simply ignore \nlegal rulings from a competent state court and receive a do‐\nover in federal court. The full faith and credit statute, 28 \nU.S.C. § 1738, dictates the opposite rule: federal courts must \ngive the same preclusive effect to a state‐court judgment that \nit would receive under state law. See, e.g., Marrese v. American \nAcademy of Orthopaedic Surgeons, 470 U.S. 373, 380 (1985). \n Even if, as EOR insists, its federal‐law arguments are dif‐\nferent from the questions relating to the allocation of powers \namong the state agencies that were decided on the merits in \nthe prior litigation, that does not matter. Illinois applies claim \npreclusion when the original state court rendered a final judg‐\nment on the merits; the claims arise out of the same nucleus \nof fact; and the parties are identical. See Hudson v. City of Chi‐\ncago, 228 Ill. 2d 462, 467 (2008). This blocks parties not only \nfrom re‐litigating the issues the state court actually enter‐\ntained; it also bars litigation of any theory that could have \nbeen raised. And if that were not enough, EOR also faces issue \n\fNo. 17‐3107 7 \n\npreclusion. EOR raised its jurisdictional argument in the prior \nstate proceedings, and that issue was necessary to the Illinois \ncourt’s decision on the merits. Under those circumstances, \nEOR may not re‐litigate that issue. See Du Page Forklift Serv., \nInc. v. Material Handling Servs., Inc., 195 Ill. 2d 71, 77 (2001). \n We add for good measure that the Eleventh Amendment \nprohibits a federal court from ordering any relief against a \nstate agency based on state law. Pennhurst State Sch. & Hosp. \nv. Halderman, 465 U.S. 89, 100–01, 106 (1984). Although the en‐\nforcement of environmental laws is in part accomplished \nthrough a partnership between the states and the federal gov‐\nernment, federal law has nothing to say about which agency \na state is entitled to use in carrying out those tasks. That is \npurely a matter of state law. \n EOR also has asked this court for the opportunity to cure \nand refile its complaint. We deny its request. There is no way \nthat EOR could remedy the errors outlined above. Any \nchange in the suit that would remove these flaws would also \ndestroy EOR’s standing and the entire point of its lawsuit. If \nEOR intends to ignore the state court’s rulings and inject the \nsame kinds of hazardous waste acid into the same kinds of \nwells, then it will have to account for its actions before the \nstate authorities. If, on the other hand, EOR wants to inject \ninto its wells an entirely different acid that is not hazardous \nwaste under Illinois law, then it will have to take its chances \nin a future proceeding that is not at this time ripe for any fed‐\neral‐court action. \n We AFFIRM the judgment of the district court.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4359460/", "author_raw": "Diane Pamela Wood"}]}	WOOD	FLAUM	HAMILTON	1		{"WOOD": ", Chief", "FLAUM": ", Cir cuit", "HAMILTON": ", Cir cuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4582207/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: EOR Energy, LLC v. Illinois Environmental Protec\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-16\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________ \n No. 17‐3107 \n EOR ENERGY LLC, et al., \n Plaintiffs‐Appellants, \n v. \n\n ILLINOIS ENVIRONMENTAL PROTECTION AGENCY, et al., \n Defendants‐Appellees. \n ____________________ \n\n Appeal from the United States District Court for the \n Central District of Illinois. \n No. 3:16‐cv‐03122 — Sue E. Myerscough, Judge. \n ____________________ \n\n ARGUED SEPTEMBER 21, 2018 — DECIDED JANUARY 16, 2019 \n ____________________ \n\n Before WOOD, Chief Judge, and FLAUM and HAMILTON, Cir‐\ncuit Judges. \n WOOD, Chief Judge. In March 2007 the Illinois Environmen‐\ntal Protection Agency (IEPA) brought charges before the Illi‐\nnois Pollution Control Board (the Board) against EOR Energy, \nLLC (EOR) and AET Environmental, Inc. (AET). The IEPA ac‐\ncused EOR and AET of violating the Illinois Environmental \nProtection Act, 415 ILCS 5/1–5/58, by transporting hazardous‐\nwaste acid into Illinois, storing that waste, and then injecting \n\f2 No. 17‐3107 \n\nit into EOR’s industrial wells in Illinois. EOR challenged its \nprosecution by arguing that under the environmental law \nscheme put in place by Illinois, the IEPA and the Board do not \nhave jurisdiction over EOR’s acid dumping. EOR took that ar‐\ngument all the way through the Illinois courts, losing at every \nturn. The state courts determined that under Illinois law, \nEOR’s jurisdictional argument is meritless. \n Having lost in the state courts, EOR has turned to the fed‐\neral courthouse. It would like the federal district court to issue \na declaratory judgment that under federal law, the IEPA and \nthe Board do not have jurisdiction over any future attempts \nto dump similar acidic waste into its wells. The district court \ndismissed the case on several grounds: the Eleventh Amend‐\nment, issue preclusion, and a hint of Rooker‐Feldman, to the \nextent that EOR was trying to undo the adverse decisions \nfrom the state courts. We agree with the district court that this \nsuit cannot proceed in federal court: it is blocked by claim and \nissue preclusion; in some respects Rooker‐Feldman deprives \nthe district court of subject‐matter jurisdiction; and to the ex‐\ntent that anything else remains, EOR is stymied by the Elev‐\nenth Amendment. \n In 2002 a tire production facility in Colorado experienced \nan emergency overheating of industrial acid. AET Environ‐\nmental was hired by the plant to dispose of the acid. When it \ncould not find a nearby waste disposal plant that would ac‐\ncept the acid, AET decided to ship the acid to EOR, an oil com‐\npany with wells in Illinois. EOR stored the acid in Illinois for \ntwo years. At that point, it decided to inject some of the acid \ninto its wells. It ultimately disposed of the rest of the acid after \nseveral inspections and investigations into the safety of the \nacid as potentially dangerous hazardous waste. Five years \n\fNo. 17‐3107 3 \n\nlater, the IEPA brought charges before the Board against EOR \nand AET (collectively EOR), identifying the transportation, \nstorage, and injection of the acid as violations of Illinois envi‐\nronmental law. In June 2012, the IEPA filed an unopposed \nmotion for summary judgment. The Board granted that mo‐\ntion and imposed $60,000 in sanctions against AET and \n$200,000 against EOR. EOR then filed a motion for reconsid‐\neration, arguing for the first time that the Board did not have \njurisdiction under state law over its suit. EOR asserted that it \nwas not injecting “waste” into its wells. Instead, it said, it was \nmerely injecting an acid that was used to treat the wells and \naid in petroleum extraction. Therefore, according to EOR, the \nIllinois Department of Natural Resources (the Department) \nhad exclusive jurisdiction over EOR’s injection of acid into a \n“Class II well” under the Illinois Oil and Gas Act, 225 ILCS \n725/1. The Board rejected this argument and denied EOR’s \nmotion for reconsideration. \n EOR appealed directly to the Appellate Court of Illinois \n(Fourth District), which affirmed the Board’s decision. E.O.R. \nEnergy, LLC v. Pollution Control Bd., 2015 IL App (4th) 130443, \n¶ 100 (2015). The Appellate Court emphasized that this was a \nmatter of state law, specifically Illinois’s “comprehensive stat‐\nutory structure for the regulation of underground injection of \nmaterials into wells in Illinois,” although the statutory scheme \nwas “promulgated with federal approval.” Id. at ¶ 83. The \ncourt interpreted the Illinois Environmental Protection Act as \ngiving the Board jurisdiction to decide this type of case, and \nthe IEPA jurisdiction to enforce this matter, “[b]ecause the \nacid material was both a ‘waste’ and a ‘hazardous waste’ \nwithin the meaning of the Act.” Id. at ¶¶ 72–80. It further held \nthat not only was the Department’s jurisdiction in this area \n\f4 No. 17‐3107 \n\nnot exclusive; it was non‐existent. The court held that the De‐\npartment’s authority is limited to the injection of certain fluids \nassociated with oil and gas production. Id. at ¶¶ 81–88. Both \nthe Supreme Court of Illinois, E.O.R. Energy, LLC v. Pollution \nControl Bd., 396 Ill. Dec. 175 (2015), and the Supreme Court of \nthe United States, E.O.R. Energy, LLC v. Illinois Pollution Con‐\ntrol Bd., 136 S. Ct. 1684 (2016), declined to hear EOR’s appeals. \n Almost immediately after losing in state court, EOR and \nAET filed this action, purportedly seeking a declaratory judg‐\nment through the citizen‐suit provisions of the two federal \nlaws—the Resource Conservation and Recovery Act, 42 \nU.S.C. §§ 6901–6992k, and the Safe Drinking Water Act, 42 \nU.S.C. §§ 300f–300j‐27—that allow states to develop their own \nstatutory schemes after obtaining federal approval. As it did \nin the state‐court action, EOR argues that Class II injection \nwells in Illinois are exclusively regulated by the Department, \nand so the IEPA is not empowered to require EOR to obtain a \nClass I permit or otherwise prosecute EOR for (as it describes \nin its brief) trying “to use cheap or off‐spec acid similar to that \nused in the 2002‐2004 acidization” into its Class II wells. The \ndistrict court granted the IEPA’s motion to dismiss for failure \nto state a claim upon which relief can be granted. We review \nthat dismissal de novo. Kubiak v. City of Chicago, 810 F.3d 476, \n480 (7th Cir. 2016). \n EOR’s complaint, which we must accept as true at this \nstage, paints a clear picture of what it would like to do. EOR \nwants to continue injecting the hazardous acid into its wells, \nbut this time it would like to do so armed with a declaratory \njudgment from a federal court that will protect it from another \nenforcement action brought by the IEPA and another penalty \n\fNo. 17‐3107 5 \n\nimposed by the Board. As EOR puts it, it would like to con‐\nduct these operations “without fear of a similar ordeal as they \nare currently enduring.” It cites past litigation costs and the \nenforcement of the state court’s order—through fines and the \ndirection to obtain permits or cease unlawful conduct—as the \nkinds of harms it seeks to avoid with a federal court order. \n We emphatically reject this undisguised attempt to exe‐\ncute an end‐run around the state court’s decision. That court \nhas considered and ruled on EOR’s arguments about the dis‐\ntribution of power among Illinois’s environmental agencies. \nFirst, its decision is final. Second, there is no federal interest \nin which state agency is authorized to take action. And above \nall, EOR ignores the duty of the federal courts to respect state‐\ncourt judgments and the jurisdictional barrier that would ex‐\nist if what it really wants is lower federal‐court review of the \nstate‐court results. \n To the extent EOR wanted the district court and now this \ncourt to review and set aside the state court’s adverse deci‐\nsion, it runs into the Rooker‐Feldman doctrine, under which \nlower federal courts lack jurisdiction to review state‐court \njudgments or to decide matters inextricably related to state \ncourt decisions. See Rooker v. Fidelity Trust Co., 263 U.S. 413, \n415–16 (1923); District of Columbia Court of Appeals v. Feldman, \n460 U.S. 462, 482–86 (1983); Exxon Mobil Corp. v. Saudi Basic \nIndus. Corp., 544 U.S. 280, 284 (2005). \n The heart of EOR’s claim is that the Illinois Appellate \nCourt declared the wrong rule of law and that we should cor‐\nrect it. EOR would like us to hold that the IEPA and the Board \nindeed lack jurisdiction to hold EOR accountable for dump‐\ning acidic waste into its wells. But if EOR believed that the \n\f6 No. 17‐3107 \n\nIllinois court got it wrong, its remedy was to ask the state su‐\npreme court, and thereafter the Supreme Court of the United \nStates, to correct the error. It filed the necessary petitions, but \nthose courts chose not to hear its case. That was the end of the \nline. There is no asterisk appended to the Rooker‐Feldman doc‐\ntrine saying that it evaporates once certiorari is denied. The \nstate court has adjudicated EOR’s claim, and that is that: it \nmay not come to the federal courthouse for Round Two. \n It may be more accurate, however, to read EOR’s com‐\nplaint and briefs in this court as acquiescing in the state \ncourt’s judgment, including the penalties it imposed, and ask‐\ning simply for a new ruling on the pure issues of law. In that \ncase, we do not face a Rooker‐Feldman problem, but EOR is no \nbetter off. The reason is simple: litigants cannot simply ignore \nlegal rulings from a competent state court and receive a do‐\nover in federal court. The full faith and credit statute, 28 \nU.S.C. § 1738, dictates the opposite rule: federal courts must \ngive the same preclusive effect to a state‐court judgment that \nit would receive under state law. See, e.g., Marrese v. American \nAcademy of Orthopaedic Surgeons, 470 U.S. 373, 380 (1985). \n Even if, as EOR insists, its federal‐law arguments are dif‐\nferent from the questions relating to the allocation of powers \namong the state agencies that were decided on the merits in \nthe prior litigation, that does not matter. Illinois applies claim \npreclusion when the original state court rendered a final judg‐\nment on the merits; the claims arise out of the same nucleus \nof fact; and the parties are identical. See Hudson v. City of Chi‐\ncago, 228 Ill. 2d 462, 467 (2008). This blocks parties not only \nfrom re‐litigating the issues the state court actually enter‐\ntained; it also bars litigation of any theory that could have \nbeen raised. And if that were not enough, EOR also faces issue \n\fNo. 17‐3107 7 \n\npreclusion. EOR raised its jurisdictional argument in the prior \nstate proceedings, and that issue was necessary to the Illinois \ncourt’s decision on the merits. Under those circumstances, \nEOR may not re‐litigate that issue. See Du Page Forklift Serv., \nInc. v. Material Handling Servs., Inc., 195 Ill. 2d 71, 77 (2001). \n We add for good measure that the Eleventh Amendment \nprohibits a federal court from ordering any relief against a \nstate agency based on state law. Pennhurst State Sch. & Hosp. \nv. Halderman, 465 U.S. 89, 100–01, 106 (1984). Although the en‐\nforcement of environmental laws is in part accomplished \nthrough a partnership between the states and the federal gov‐\nernment, federal law has nothing to say about which agency \na state is entitled to use in carrying out those tasks. That is \npurely a matter of state law. \n EOR also has asked this court for the opportunity to cure \nand refile its complaint. We deny its request. There is no way \nthat EOR could remedy the errors outlined above. Any \nchange in the suit that would remove these flaws would also \ndestroy EOR’s standing and the entire point of its lawsuit. If \nEOR intends to ignore the state court’s rulings and inject the \nsame kinds of hazardous waste acid into the same kinds of \nwells, then it will have to account for its actions before the \nstate authorities. If, on the other hand, EOR wants to inject \ninto its wells an entirely different acid that is not hazardous \nwaste under Illinois law, then it will have to take its chances \nin a future proceeding that is not at this time ripe for any fed‐\neral‐court action. \n We AFFIRM the judgment of the district court.\n[END_CASE]", "role": "user" } ]
4,582,215	UNITED STATES of America, Plaintiff-Appellee, v. Nathan DRIGGERS, Defendant-Appellant.	United States v. Nathan Driggers	2019-01-16	17-2994	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Wood, Flaum, Hamilton", "parties": "", "opinions": [{"author": "Diane Pamela Wood", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-2994\nUNITED STATES OF AMERICA,\n Plaintiff-Appellee,\n v.\n\nNATHAN DRIGGERS,\n Defendant-Appellant.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 15 CR 350 — John J. Tharp, Jr., Judge.\n ____________________\n\n ARGUED SEPTEMBER 21, 2018 — DECIDED JANUARY 16, 2019\n ____________________\n\n Before WOOD, Chief Judge, and FLAUM and HAMILTON, Cir-\ncuit Judges.\n WOOD, Chief Judge. In the wee hours of the morning on\nApril 12, 2015, thieves stole approximately 104 Ruger ﬁrearms\nfrom a train sitting in a Chicago railyard. Later that day, ac-\ncording to the government, Nathan Driggers purchased 30 of\nthose stolen guns. He wound up facing charges of being a\nfelon in possession of a ﬁrearm in violation of 18 U.S.C.\n§ 922(g), and possession of a stolen ﬁrearm in violation of 18\n\f2 No. 17-2994\n\nU.S.C. § 922(j). Driggers proceeded to trial, and a jury re-\nturned a split verdict, ﬁnding him guilty of being a felon in\npossession of a ﬁrearm, but not guilty of possessing a stolen\nﬁrearm. Driggers now appeals his conviction. He argues that\nthe district court improperly allowed testimony about his co-\ndefendant Warren Gates and gave an erroneous jury instruc-\ntion on joint possession. Finding no error in the district court’s\ndecisions, we aﬃrm Driggers’s conviction.\n I\n On April 12, 2015, eight men entered a Chicago railyard,\nbroke into a cargo train parked there, and discovered a cache\nof Ruger ﬁrearms being shipped from a factory in New\nHampshire to a distributor in Washington State. By the end of\nthe night, these men had stolen over 100 guns.\n The government did not accuse Driggers of participating\nin the actual robbery. Instead, its theory (supported by the tes-\ntimony of one of the robbers, Marcel Turner) was that Terry\nWalker, another of the robbers, contacted Driggers shortly af-\nter the heist to set up a sale of the stolen guns. The same day,\nTurner and Walker took approximately 30 of the stolen ﬁre-\narms to Driggers’s store. They met Driggers there, at which\npoint Driggers and Walker brieﬂy haggled over the price of\nthe guns and then consummated the sale. Though Turner did\nnot know how much Driggers ultimately paid for the 30 guns,\nTurner received $1,700 for the six guns that comprised his\nshare.\n The government’s other trial evidence attempted to cor-\nroborate Turner’s account of the gun sale. One inconvenient\nfact for the prosecution was that Driggers was not on the lease\nfor the store where the gun sale allegedly occurred. But\n\fNo. 17-2994 3\n\ntestimony from Driggers’s landlord and property manager\nestablished that, despite his absence from the lease, the store\ndid in fact belong to him. Their testimony showed that Drig-\ngers co-leased the store month-to-month with another man,\nYashmine Odom. Odom was apparently the store’s principal\noccupant, but Driggers paid the rent for the most part and\nmade at least some repairs.\n Additionally, police searched Driggers’s store during their\ninvestigation, and ATF Agent Jason Vachy described that\nsearch in detail at trial. He explained that the agents found a\nhodgepodge of merchandise (some of which appeared to be\nstolen), various personal documents and items belonging to\nDriggers and Odom, and a gun hidden in a tire in the\nbackroom. That gun’s serial number matched one of the guns\nstolen during the train robbery. There was a ﬁngerprint on\nthat gun, but it did not come from Driggers.\n The government also presented trial testimony and phone\nrecords that showed that shortly after Driggers allegedly pur-\nchased the 30 stolen guns, he contacted Warren Gates, a co-\ndefendant who pleaded guilty. Before Driggers’s trial, Gates\nadmitted to possessing 17 of the guns from the train robbery.\nNotably, during the ﬁrst four months of 2015, there were zero\ncontacts between Driggers’s and Gates’s cell phones, but\nshortly after the train robbery, there were 46 such contacts.\nPolice searched Gates’s storage units and found six of the sto-\nlen guns. Gates confessed to possessing these guns and fur-\nther admitted that he had purchased them, as well as 11 others\nfrom the train robbery. In his own case, Gates stated that he\npurchased those guns from two of the robbers, Elgin Lip-\nscomb and Alexander Peebles; in Driggers’s case, the prose-\ncution argued that Gates had bought them from Driggers. The\n\f4 No. 17-2994\n\ngovernment further urged that the jury could infer from Drig-\ngers’s contacts with Gates and Gates’s gun purchases that\nDriggers possessed and sold guns from the train robbery.\n II\n A\n As we indicated, Driggers raises only two points on ap-\npeal: one about the admission of testimony concerning Gates,\nand the other about the joint-possession jury instruction. We\nbegin with the latter.\n Driggers does not assert that the joint-possession instruc-\ntion used by the district court misstated the law. Instead he\nargues that the court should not have included the instruction\nbecause neither party’s theory of the case involved joint pos-\nsession, and so it only served to confuse the jury.\n We review a district court’s decision to give a jury instruc-\ntion for abuse of discretion. United States v. Tanner, 628 F.3d\n890, 904 (7th Cir. 2010). A joint-possession instruction is\nproper where “[t]here was substantial evidence that more\nthan one person could have possessed the gun.” United States\nv. Rainone, 816 F.3d 490, 494 (7th Cir. 2016). Indeed, we have\ngone so far as to say that “a joint possession instruction is ‘nec-\nessary’ when contraband is recovered from a jointly-occupied\nresidence.” Id. (quoting United States v. Lawrence, 788 F.3d 234,\n246 (7th Cir. 2015)) (emphasis added).\n Driggers is correct that the government primarily focused\non his alleged purchase and subsequent sole possession of the\nstolen guns. But he ignores the fact that the jury had before it\nevidence that he and Odom jointly possessed the ﬁrearm that\nthe oﬃcers found in his store. Driggers co-leased the store\nwith Odom, and both Driggers’s and Odom’s personal\n\fNo. 17-2994 5\n\neﬀects—including mail, a birthday card, and bank state-\nments—were found there. The owner and the property man-\nager of the store also testiﬁed that they observed both Drig-\ngers and Odom exhibiting control over the store, such as by\nmaking rent payments or oﬀering to make repairs.\n Given the substantial personal eﬀects addressed to both\nDriggers and Odom found within the store, as well as the tes-\ntimony suggesting that both occupied the store, there was am-\nple basis for a joint-possession instruction. The district court\nacted well within its discretion to provide the jury this guid-\nance.\n B\n Driggers also complains that the introduction of evidence\nabout his contacts with Gates, including the evidence about\nthe guns from the train robbery found in Gates’s storage\nlocker, was improper. He ﬁrst argues that the evidence was\nirrelevant under Federal Rule of Evidence 401. In addition, he\nasserts that the court’s decision to admit the evidence violated\nhis due process rights, because the government oﬀered incon-\nsistent theories about how Gates obtained the guns. A “dis-\ntrict court has ‘wide discretion’ when it rules on the admission\nof evidence.” United States v. Boros, 668 F.3d 901, 907 (7th Cir.\n2012). We thus review “a district court’s decision to admit or\nexclude evidence for abuse of discretion.” Id. We review the\nquestion whether a defendant’s due process rights were vio-\nlated de novo. See United States v. Kielar, 791 F.3d 733, 736 (7th\nCir. 2015).\n In fact, Driggers’s Rule 401 argument and his due process\nargument are intertwined. The potential relevance of any ev-\nidence regarding Gates could be limited because, based on the\n\f6 No. 17-2994\n\ngovernment’s contentions in Gates’s own prosecution, it ap-\npears that Driggers did not sell Gates any of the particular\nguns Gates was prosecuted for possessing. On the other hand,\nif Driggers had sold any of the guns he allegedly bought from\nthe train robbers to Gates, evidence about the contacts be-\ntween Driggers and Gates, as well as the fact that those guns\nwere found in Gates’s possession, would have been highly\nrelevant.\n In either scenario, the district court did not abuse its dis-\ncretion in ﬁnding that the Gates evidence passed the thresh-\nold for Rule 401. The standard for relevance is low. Tennard v.\nDretke, 542 U.S. 274, 284–85 (2004). When determining\nwhether evidence is relevant, we ask only whether it has\n“‘any tendency to make a fact more or less probable than it\nwould be without the evidence’ [when] ‘the fact is of conse-\nquence in determining the action.’” Boros, 668 F.3d at 907\n(quoting FED. R. EVID. 401). Even if Driggers did not directly\nsell Gates the guns police found in Gates’s storage locker, the\nfact that Driggers had 46 contacts with a known buyer of sto-\nlen guns immediately after he allegedly bought 30 stolen guns\nsupported the government’s theory that Driggers served as\nthe robbers’ fence. This ﬂurry of contacts was additionally\nsuspicious because Driggers and Gates were not in contact at\nall during the four months preceding the robbery. The district\ncourt thus did not abuse its discretion in ﬁnding that this evi-\ndence satisﬁed Rule 401.\n Before turning more directly to the due-process argument,\nwe explain how the Gates prosecution diﬀered from the case\nagainst Driggers. The government ﬁrst proceeded against\nGates; that case was resolved with a plea agreement. In that\nagreement, Gates admitted that he “purchased approximately\n\fNo. 17-2994 7\n\nseventeen of the ﬁrearms [from the train robbery] from co-de-\nfendants PEEBLES and LIPSCOMB on or after April 13, 2015.”\nPlea Agreement at 3, United States v. Gates, No. 1:15-cr-350-3\n(N.D. Ill. July 19, 2016), ECF No. 173 (capitalization in origi-\nnal). Gates also admitted that at the time the oﬃcers searched\nhis storage units, he kept 13 ﬁrearms in those units, six of\nwhich he had bought from Peebles and Lipscomb and “seven\nadditional ﬁrearms unrelated to the train theft.” Id. This ver-\nsion of the oﬀense—that Gates purchased 17 ﬁrearms from\nPeebles and Lipscomb, with oﬃcers recovering six of those 17\nguns from Gates’s storage units—was repeated by both ATF\nAgent Vachy in Gates’s Presentence Investigation Report and\nby the prosecution in Gates’s sentencing memorandum.\n By contrast, in Driggers’s prosecution, the government\nrepresented to both the district court and to the jury that the\nguns it had previously contended Gates bought from Peebles\nand Lipscomb were in fact sold to him by Driggers. The gov-\nernment has not explained to us (or to anyone else) how these\ntwo conﬂicting factual representations can coexist, and we are\nat a loss to reconcile them.\n The question is thus what to do about this inconsistency.\nThe circuits are split on the question whether the prosecu-\ntion’s use of inconsistent theories in multiple prosecutions vi-\nolates due process. Compare United States v. Frye, 489 F.3d\n201, 214 (5th Cir. 2007) (“[A] prosecutor can make inconsistent\narguments at the separate trials of codefendants without vio-\nlating the due process clause.”), with Smith v. Groose, 205 F.3d\n1045, 1049–52 (8th Cir. 2000) (agreeing with the Ninth Circuit\nthat “inconsistent prosecutorial theories can, in certain cir-\ncumstances, violate due process rights”); see also Bradshaw v.\nStumpf, 545 U.S. 175, 190 (2005) (Thomas, J. concurring) (“This\n\f8 No. 17-2994\n\nCourt has never hinted, much less held, that the Due Process\nClause prevents a State from prosecuting defendants based\non inconsistent theories.”). Though several litigants have\nraised this argument before us, we have thus far declined to\nchoose a side in this matter. We have not needed to address\nthe constitutional issue because the defendants who have ad-\nvanced this theory were either not prejudiced by the prosecu-\ntion’s behavior, see United States v. Flournoy, 842 F.3d 524, 530\n(7th Cir. 2016), or because the government did not actually\n“take fundamentally opposite positions in its two prosecu-\ntions.” United States v. Presbitero, 569 F.3d 691, 702 (7th Cir.\n2009). We likewise take a pass here, because Driggers was not\nprejudiced by the government’s actions.\n A defendant is entitled to a new trial only when “there is\na reasonable possibility that the trial error had a prejudicial\neﬀect on the jury’s verdict.” Flournoy, 842 F.3d at 530. Here,\nthere is a simple reason that the Gates evidence was not prej-\nudicial to Driggers: the jury acquitted him of the possession\nof a stolen ﬁrearm charge that the Gates evidence supported.\nEven if we totally disregard the Gates evidence, as well as the\nother testimony and argument it bolstered, there is still suﬃ-\ncient evidence to support the jury’s verdict on the other\ncharge. This is because the jury could ﬁnd Driggers guilty of\nbeing a felon in possession based solely on the gun found in\nhis store—a gun that had no connection to Gates. See Jackson\nv. Virginia, 443 U.S. 307, 319 (1979) (“Once a defendant has\nbeen found guilty of the crime charged, the factﬁnder’s role\nas weigher of the evidence is preserved through a legal con-\nclusion that upon judicial review all of the evidence is to be con-\nsidered in the light most favorable to the prosecution.”). As\nwe noted earlier, Driggers’s connection to, and control over,\nthe store was strongly supported by the evidence. The gun\n\fNo. 17-2994 9\n\nwas found hidden in a tire in the store’s backroom. This was\nenough to permit the jury to convict Driggers of being a felon\nin possession of a ﬁrearm in violation of 18 U.S.C. § 922(g).\n For purposes of that count, it did not matter whether the\ngun was stolen. And apparently the jury was not convinced\nthat Driggers knew, for purposes of the other count (under 18\nU.S.C. § 922(j)), that the gun in his store came from the train\nrobbery, because it acquitted him on that charge. Even if the\ngovernment’s theories in the Gates prosecution were incon-\nsistent with those it used against Driggers, there is thus no\nreasonable possibility that this tactic created a prejudicial ef-\nfect on the jury’s verdict.\n III\n Because the district court did not improperly instruct the\njury, and because Driggers suﬀered no prejudice from any er-\nror that may have existed in the treatment of the Gates evi-\ndence, we AFFIRM Driggers’s conviction and sentence.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4359468/", "author_raw": "Diane Pamela Wood"}]}	WOOD	FLAUM	HAMILTON	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4582215/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Nathan DRIGGERS, Defendant-Appellant.\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-16\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-2994\nUNITED STATES OF AMERICA,\n Plaintiff-Appellee,\n v.\n\nNATHAN DRIGGERS,\n Defendant-Appellant.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 15 CR 350 — John J. Tharp, Jr., Judge.\n ____________________\n\n ARGUED SEPTEMBER 21, 2018 — DECIDED JANUARY 16, 2019\n ____________________\n\n Before WOOD, Chief Judge, and FLAUM and HAMILTON, Cir-\ncuit Judges.\n WOOD, Chief Judge. In the wee hours of the morning on\nApril 12, 2015, thieves stole approximately 104 Ruger ﬁrearms\nfrom a train sitting in a Chicago railyard. Later that day, ac-\ncording to the government, Nathan Driggers purchased 30 of\nthose stolen guns. He wound up facing charges of being a\nfelon in possession of a ﬁrearm in violation of 18 U.S.C.\n§ 922(g), and possession of a stolen ﬁrearm in violation of 18\n\f2 No. 17-2994\n\nU.S.C. § 922(j). Driggers proceeded to trial, and a jury re-\nturned a split verdict, ﬁnding him guilty of being a felon in\npossession of a ﬁrearm, but not guilty of possessing a stolen\nﬁrearm. Driggers now appeals his conviction. He argues that\nthe district court improperly allowed testimony about his co-\ndefendant Warren Gates and gave an erroneous jury instruc-\ntion on joint possession. Finding no error in the district court’s\ndecisions, we aﬃrm Driggers’s conviction.\n I\n On April 12, 2015, eight men entered a Chicago railyard,\nbroke into a cargo train parked there, and discovered a cache\nof Ruger ﬁrearms being shipped from a factory in New\nHampshire to a distributor in Washington State. By the end of\nthe night, these men had stolen over 100 guns.\n The government did not accuse Driggers of participating\nin the actual robbery. Instead, its theory (supported by the tes-\ntimony of one of the robbers, Marcel Turner) was that Terry\nWalker, another of the robbers, contacted Driggers shortly af-\nter the heist to set up a sale of the stolen guns. The same day,\nTurner and Walker took approximately 30 of the stolen ﬁre-\narms to Driggers’s store. They met Driggers there, at which\npoint Driggers and Walker brieﬂy haggled over the price of\nthe guns and then consummated the sale. Though Turner did\nnot know how much Driggers ultimately paid for the 30 guns,\nTurner received $1,700 for the six guns that comprised his\nshare.\n The government’s other trial evidence attempted to cor-\nroborate Turner’s account of the gun sale. One inconvenient\nfact for the prosecution was that Driggers was not on the lease\nfor the store where the gun sale allegedly occurred. But\n\fNo. 17-2994 3\n\ntestimony from Driggers’s landlord and property manager\nestablished that, despite his absence from the lease, the store\ndid in fact belong to him. Their testimony showed that Drig-\ngers co-leased the store month-to-month with another man,\nYashmine Odom. Odom was apparently the store’s principal\noccupant, but Driggers paid the rent for the most part and\nmade at least some repairs.\n Additionally, police searched Driggers’s store during their\ninvestigation, and ATF Agent Jason Vachy described that\nsearch in detail at trial. He explained that the agents found a\nhodgepodge of merchandise (some of which appeared to be\nstolen), various personal documents and items belonging to\nDriggers and Odom, and a gun hidden in a tire in the\nbackroom. That gun’s serial number matched one of the guns\nstolen during the train robbery. There was a ﬁngerprint on\nthat gun, but it did not come from Driggers.\n The government also presented trial testimony and phone\nrecords that showed that shortly after Driggers allegedly pur-\nchased the 30 stolen guns, he contacted Warren Gates, a co-\ndefendant who pleaded guilty. Before Driggers’s trial, Gates\nadmitted to possessing 17 of the guns from the train robbery.\nNotably, during the ﬁrst four months of 2015, there were zero\ncontacts between Driggers’s and Gates’s cell phones, but\nshortly after the train robbery, there were 46 such contacts.\nPolice searched Gates’s storage units and found six of the sto-\nlen guns. Gates confessed to possessing these guns and fur-\nther admitted that he had purchased them, as well as 11 others\nfrom the train robbery. In his own case, Gates stated that he\npurchased those guns from two of the robbers, Elgin Lip-\nscomb and Alexander Peebles; in Driggers’s case, the prose-\ncution argued that Gates had bought them from Driggers. The\n\f4 No. 17-2994\n\ngovernment further urged that the jury could infer from Drig-\ngers’s contacts with Gates and Gates’s gun purchases that\nDriggers possessed and sold guns from the train robbery.\n II\n A\n As we indicated, Driggers raises only two points on ap-\npeal: one about the admission of testimony concerning Gates,\nand the other about the joint-possession jury instruction. We\nbegin with the latter.\n Driggers does not assert that the joint-possession instruc-\ntion used by the district court misstated the law. Instead he\nargues that the court should not have included the instruction\nbecause neither party’s theory of the case involved joint pos-\nsession, and so it only served to confuse the jury.\n We review a district court’s decision to give a jury instruc-\ntion for abuse of discretion. United States v. Tanner, 628 F.3d\n890, 904 (7th Cir. 2010). A joint-possession instruction is\nproper where “[t]here was substantial evidence that more\nthan one person could have possessed the gun.” United States\nv. Rainone, 816 F.3d 490, 494 (7th Cir. 2016). Indeed, we have\ngone so far as to say that “a joint possession instruction is ‘nec-\nessary’ when contraband is recovered from a jointly-occupied\nresidence.” Id. (quoting United States v. Lawrence, 788 F.3d 234,\n246 (7th Cir. 2015)) (emphasis added).\n Driggers is correct that the government primarily focused\non his alleged purchase and subsequent sole possession of the\nstolen guns. But he ignores the fact that the jury had before it\nevidence that he and Odom jointly possessed the ﬁrearm that\nthe oﬃcers found in his store. Driggers co-leased the store\nwith Odom, and both Driggers’s and Odom’s personal\n\fNo. 17-2994 5\n\neﬀects—including mail, a birthday card, and bank state-\nments—were found there. The owner and the property man-\nager of the store also testiﬁed that they observed both Drig-\ngers and Odom exhibiting control over the store, such as by\nmaking rent payments or oﬀering to make repairs.\n Given the substantial personal eﬀects addressed to both\nDriggers and Odom found within the store, as well as the tes-\ntimony suggesting that both occupied the store, there was am-\nple basis for a joint-possession instruction. The district court\nacted well within its discretion to provide the jury this guid-\nance.\n B\n Driggers also complains that the introduction of evidence\nabout his contacts with Gates, including the evidence about\nthe guns from the train robbery found in Gates’s storage\nlocker, was improper. He ﬁrst argues that the evidence was\nirrelevant under Federal Rule of Evidence 401. In addition, he\nasserts that the court’s decision to admit the evidence violated\nhis due process rights, because the government oﬀered incon-\nsistent theories about how Gates obtained the guns. A “dis-\ntrict court has ‘wide discretion’ when it rules on the admission\nof evidence.” United States v. Boros, 668 F.3d 901, 907 (7th Cir.\n2012). We thus review “a district court’s decision to admit or\nexclude evidence for abuse of discretion.” Id. We review the\nquestion whether a defendant’s due process rights were vio-\nlated de novo. See United States v. Kielar, 791 F.3d 733, 736 (7th\nCir. 2015).\n In fact, Driggers’s Rule 401 argument and his due process\nargument are intertwined. The potential relevance of any ev-\nidence regarding Gates could be limited because, based on the\n\f6 No. 17-2994\n\ngovernment’s contentions in Gates’s own prosecution, it ap-\npears that Driggers did not sell Gates any of the particular\nguns Gates was prosecuted for possessing. On the other hand,\nif Driggers had sold any of the guns he allegedly bought from\nthe train robbers to Gates, evidence about the contacts be-\ntween Driggers and Gates, as well as the fact that those guns\nwere found in Gates’s possession, would have been highly\nrelevant.\n In either scenario, the district court did not abuse its dis-\ncretion in ﬁnding that the Gates evidence passed the thresh-\nold for Rule 401. The standard for relevance is low. Tennard v.\nDretke, 542 U.S. 274, 284–85 (2004). When determining\nwhether evidence is relevant, we ask only whether it has\n“‘any tendency to make a fact more or less probable than it\nwould be without the evidence’ [when] ‘the fact is of conse-\nquence in determining the action.’” Boros, 668 F.3d at 907\n(quoting FED. R. EVID. 401). Even if Driggers did not directly\nsell Gates the guns police found in Gates’s storage locker, the\nfact that Driggers had 46 contacts with a known buyer of sto-\nlen guns immediately after he allegedly bought 30 stolen guns\nsupported the government’s theory that Driggers served as\nthe robbers’ fence. This ﬂurry of contacts was additionally\nsuspicious because Driggers and Gates were not in contact at\nall during the four months preceding the robbery. The district\ncourt thus did not abuse its discretion in ﬁnding that this evi-\ndence satisﬁed Rule 401.\n Before turning more directly to the due-process argument,\nwe explain how the Gates prosecution diﬀered from the case\nagainst Driggers. The government ﬁrst proceeded against\nGates; that case was resolved with a plea agreement. In that\nagreement, Gates admitted that he “purchased approximately\n\fNo. 17-2994 7\n\nseventeen of the ﬁrearms [from the train robbery] from co-de-\nfendants PEEBLES and LIPSCOMB on or after April 13, 2015.”\nPlea Agreement at 3, United States v. Gates, No. 1:15-cr-350-3\n(N.D. Ill. July 19, 2016), ECF No. 173 (capitalization in origi-\nnal). Gates also admitted that at the time the oﬃcers searched\nhis storage units, he kept 13 ﬁrearms in those units, six of\nwhich he had bought from Peebles and Lipscomb and “seven\nadditional ﬁrearms unrelated to the train theft.” Id. This ver-\nsion of the oﬀense—that Gates purchased 17 ﬁrearms from\nPeebles and Lipscomb, with oﬃcers recovering six of those 17\nguns from Gates’s storage units—was repeated by both ATF\nAgent Vachy in Gates’s Presentence Investigation Report and\nby the prosecution in Gates’s sentencing memorandum.\n By contrast, in Driggers’s prosecution, the government\nrepresented to both the district court and to the jury that the\nguns it had previously contended Gates bought from Peebles\nand Lipscomb were in fact sold to him by Driggers. The gov-\nernment has not explained to us (or to anyone else) how these\ntwo conﬂicting factual representations can coexist, and we are\nat a loss to reconcile them.\n The question is thus what to do about this inconsistency.\nThe circuits are split on the question whether the prosecu-\ntion’s use of inconsistent theories in multiple prosecutions vi-\nolates due process. Compare United States v. Frye, 489 F.3d\n201, 214 (5th Cir. 2007) (“[A] prosecutor can make inconsistent\narguments at the separate trials of codefendants without vio-\nlating the due process clause.”), with Smith v. Groose, 205 F.3d\n1045, 1049–52 (8th Cir. 2000) (agreeing with the Ninth Circuit\nthat “inconsistent prosecutorial theories can, in certain cir-\ncumstances, violate due process rights”); see also Bradshaw v.\nStumpf, 545 U.S. 175, 190 (2005) (Thomas, J. concurring) (“This\n\f8 No. 17-2994\n\nCourt has never hinted, much less held, that the Due Process\nClause prevents a State from prosecuting defendants based\non inconsistent theories.”). Though several litigants have\nraised this argument before us, we have thus far declined to\nchoose a side in this matter. We have not needed to address\nthe constitutional issue because the defendants who have ad-\nvanced this theory were either not prejudiced by the prosecu-\ntion’s behavior, see United States v. Flournoy, 842 F.3d 524, 530\n(7th Cir. 2016), or because the government did not actually\n“take fundamentally opposite positions in its two prosecu-\ntions.” United States v. Presbitero, 569 F.3d 691, 702 (7th Cir.\n2009). We likewise take a pass here, because Driggers was not\nprejudiced by the government’s actions.\n A defendant is entitled to a new trial only when “there is\na reasonable possibility that the trial error had a prejudicial\neﬀect on the jury’s verdict.” Flournoy, 842 F.3d at 530. Here,\nthere is a simple reason that the Gates evidence was not prej-\nudicial to Driggers: the jury acquitted him of the possession\nof a stolen ﬁrearm charge that the Gates evidence supported.\nEven if we totally disregard the Gates evidence, as well as the\nother testimony and argument it bolstered, there is still suﬃ-\ncient evidence to support the jury’s verdict on the other\ncharge. This is because the jury could ﬁnd Driggers guilty of\nbeing a felon in possession based solely on the gun found in\nhis store—a gun that had no connection to Gates. See Jackson\nv. Virginia, 443 U.S. 307, 319 (1979) (“Once a defendant has\nbeen found guilty of the crime charged, the factﬁnder’s role\nas weigher of the evidence is preserved through a legal con-\nclusion that upon judicial review all of the evidence is to be con-\nsidered in the light most favorable to the prosecution.”). As\nwe noted earlier, Driggers’s connection to, and control over,\nthe store was strongly supported by the evidence. The gun\n\fNo. 17-2994 9\n\nwas found hidden in a tire in the store’s backroom. This was\nenough to permit the jury to convict Driggers of being a felon\nin possession of a ﬁrearm in violation of 18 U.S.C. § 922(g).\n For purposes of that count, it did not matter whether the\ngun was stolen. And apparently the jury was not convinced\nthat Driggers knew, for purposes of the other count (under 18\nU.S.C. § 922(j)), that the gun in his store came from the train\nrobbery, because it acquitted him on that charge. Even if the\ngovernment’s theories in the Gates prosecution were incon-\nsistent with those it used against Driggers, there is thus no\nreasonable possibility that this tactic created a prejudicial ef-\nfect on the jury’s verdict.\n III\n Because the district court did not improperly instruct the\njury, and because Driggers suﬀered no prejudice from any er-\nror that may have existed in the treatment of the Gates evi-\ndence, we AFFIRM Driggers’s conviction and sentence.\n[END_CASE]", "role": "user" } ]
4,582,217		EOR Energy, LLC v. Illinois Environmental Protec	2019-01-16	17-3107	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before WOOD, Chief Judge, and FLAUM and HAMILTON, Cir‐ cuit Judges.", "parties": "", "opinions": [{"author": "Diane Pamela Wood", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________ \n No. 17‐3107 \n EOR ENERGY LLC, et al., \n Plaintiffs‐Appellants, \n v. \n\n ILLINOIS ENVIRONMENTAL PROTECTION AGENCY, et al., \n Defendants‐Appellees. \n ____________________ \n\n Appeal from the United States District Court for the \n Central District of Illinois. \n No. 3:16‐cv‐03122 — Sue E. Myerscough, Judge. \n ____________________ \n\n ARGUED SEPTEMBER 21, 2018 — DECIDED JANUARY 16, 2019 \n ____________________ \n\n Before WOOD, Chief Judge, and FLAUM and HAMILTON, Cir‐\ncuit Judges. \n WOOD, Chief Judge. In March 2007 the Illinois Environmen‐\ntal Protection Agency (IEPA) brought charges before the Illi‐\nnois Pollution Control Board (the Board) against EOR Energy, \nLLC (EOR) and AET Environmental, Inc. (AET). The IEPA ac‐\ncused EOR and AET of violating the Illinois Environmental \nProtection Act, 415 ILCS 5/1–5/58, by transporting hazardous‐\nwaste acid into Illinois, storing that waste, and then injecting \n\f2 No. 17‐3107 \n\nit into EOR’s industrial wells in Illinois. EOR challenged its \nprosecution by arguing that under the environmental law \nscheme put in place by Illinois, the IEPA and the Board do not \nhave jurisdiction over EOR’s acid dumping. EOR took that ar‐\ngument all the way through the Illinois courts, losing at every \nturn. The state courts determined that under Illinois law, \nEOR’s jurisdictional argument is meritless. \n Having lost in the state courts, EOR has turned to the fed‐\neral courthouse. It would like the federal district court to issue \na declaratory judgment that under federal law, the IEPA and \nthe Board do not have jurisdiction over any future attempts \nto dump similar acidic waste into its wells. The district court \ndismissed the case on several grounds: the Eleventh Amend‐\nment, issue preclusion, and a hint of Rooker‐Feldman, to the \nextent that EOR was trying to undo the adverse decisions \nfrom the state courts. We agree with the district court that this \nsuit cannot proceed in federal court: it is blocked by claim and \nissue preclusion; in some respects Rooker‐Feldman deprives \nthe district court of subject‐matter jurisdiction; and to the ex‐\ntent that anything else remains, EOR is stymied by the Elev‐\nenth Amendment. \n In 2002 a tire production facility in Colorado experienced \nan emergency overheating of industrial acid. AET Environ‐\nmental was hired by the plant to dispose of the acid. When it \ncould not find a nearby waste disposal plant that would ac‐\ncept the acid, AET decided to ship the acid to EOR, an oil com‐\npany with wells in Illinois. EOR stored the acid in Illinois for \ntwo years. At that point, it decided to inject some of the acid \ninto its wells. It ultimately disposed of the rest of the acid after \nseveral inspections and investigations into the safety of the \nacid as potentially dangerous hazardous waste. Five years \n\fNo. 17‐3107 3 \n\nlater, the IEPA brought charges before the Board against EOR \nand AET (collectively EOR), identifying the transportation, \nstorage, and injection of the acid as violations of Illinois envi‐\nronmental law. In June 2012, the IEPA filed an unopposed \nmotion for summary judgment. The Board granted that mo‐\ntion and imposed $60,000 in sanctions against AET and \n$200,000 against EOR. EOR then filed a motion for reconsid‐\neration, arguing for the first time that the Board did not have \njurisdiction under state law over its suit. EOR asserted that it \nwas not injecting “waste” into its wells. Instead, it said, it was \nmerely injecting an acid that was used to treat the wells and \naid in petroleum extraction. Therefore, according to EOR, the \nIllinois Department of Natural Resources (the Department) \nhad exclusive jurisdiction over EOR’s injection of acid into a \n“Class II well” under the Illinois Oil and Gas Act, 225 ILCS \n725/1. The Board rejected this argument and denied EOR’s \nmotion for reconsideration. \n EOR appealed directly to the Appellate Court of Illinois \n(Fourth District), which affirmed the Board’s decision. E.O.R. \nEnergy, LLC v. Pollution Control Bd., 2015 IL App (4th) 130443, \n¶ 100 (2015). The Appellate Court emphasized that this was a \nmatter of state law, specifically Illinois’s “comprehensive stat‐\nutory structure for the regulation of underground injection of \nmaterials into wells in Illinois,” although the statutory scheme \nwas “promulgated with federal approval.” Id. at ¶ 83. The \ncourt interpreted the Illinois Environmental Protection Act as \ngiving the Board jurisdiction to decide this type of case, and \nthe IEPA jurisdiction to enforce this matter, “[b]ecause the \nacid material was both a ‘waste’ and a ‘hazardous waste’ \nwithin the meaning of the Act.” Id. at ¶¶ 72–80. It further held \nthat not only was the Department’s jurisdiction in this area \n\f4 No. 17‐3107 \n\nnot exclusive; it was non‐existent. The court held that the De‐\npartment’s authority is limited to the injection of certain fluids \nassociated with oil and gas production. Id. at ¶¶ 81–88. Both \nthe Supreme Court of Illinois, E.O.R. Energy, LLC v. Pollution \nControl Bd., 396 Ill. Dec. 175 (2015), and the Supreme Court of \nthe United States, E.O.R. Energy, LLC v. Illinois Pollution Con‐\ntrol Bd., 136 S. Ct. 1684 (2016), declined to hear EOR’s appeals. \n Almost immediately after losing in state court, EOR and \nAET filed this action, purportedly seeking a declaratory judg‐\nment through the citizen‐suit provisions of the two federal \nlaws—the Resource Conservation and Recovery Act, 42 \nU.S.C. §§ 6901–6992k, and the Safe Drinking Water Act, 42 \nU.S.C. §§ 300f–300j‐27—that allow states to develop their own \nstatutory schemes after obtaining federal approval. As it did \nin the state‐court action, EOR argues that Class II injection \nwells in Illinois are exclusively regulated by the Department, \nand so the IEPA is not empowered to require EOR to obtain a \nClass I permit or otherwise prosecute EOR for (as it describes \nin its brief) trying “to use cheap or off‐spec acid similar to that \nused in the 2002‐2004 acidization” into its Class II wells. The \ndistrict court granted the IEPA’s motion to dismiss for failure \nto state a claim upon which relief can be granted. We review \nthat dismissal de novo. Kubiak v. City of Chicago, 810 F.3d 476, \n480 (7th Cir. 2016). \n EOR’s complaint, which we must accept as true at this \nstage, paints a clear picture of what it would like to do. EOR \nwants to continue injecting the hazardous acid into its wells, \nbut this time it would like to do so armed with a declaratory \njudgment from a federal court that will protect it from another \nenforcement action brought by the IEPA and another penalty \n\fNo. 17‐3107 5 \n\nimposed by the Board. As EOR puts it, it would like to con‐\nduct these operations “without fear of a similar ordeal as they \nare currently enduring.” It cites past litigation costs and the \nenforcement of the state court’s order—through fines and the \ndirection to obtain permits or cease unlawful conduct—as the \nkinds of harms it seeks to avoid with a federal court order. \n We emphatically reject this undisguised attempt to exe‐\ncute an end‐run around the state court’s decision. That court \nhas considered and ruled on EOR’s arguments about the dis‐\ntribution of power among Illinois’s environmental agencies. \nFirst, its decision is final. Second, there is no federal interest \nin which state agency is authorized to take action. And above \nall, EOR ignores the duty of the federal courts to respect state‐\ncourt judgments and the jurisdictional barrier that would ex‐\nist if what it really wants is lower federal‐court review of the \nstate‐court results. \n To the extent EOR wanted the district court and now this \ncourt to review and set aside the state court’s adverse deci‐\nsion, it runs into the Rooker‐Feldman doctrine, under which \nlower federal courts lack jurisdiction to review state‐court \njudgments or to decide matters inextricably related to state \ncourt decisions. See Rooker v. Fidelity Trust Co., 263 U.S. 413, \n415–16 (1923); District of Columbia Court of Appeals v. Feldman, \n460 U.S. 462, 482–86 (1983); Exxon Mobil Corp. v. Saudi Basic \nIndus. Corp., 544 U.S. 280, 284 (2005). \n The heart of EOR’s claim is that the Illinois Appellate \nCourt declared the wrong rule of law and that we should cor‐\nrect it. EOR would like us to hold that the IEPA and the Board \nindeed lack jurisdiction to hold EOR accountable for dump‐\ning acidic waste into its wells. But if EOR believed that the \n\f6 No. 17‐3107 \n\nIllinois court got it wrong, its remedy was to ask the state su‐\npreme court, and thereafter the Supreme Court of the United \nStates, to correct the error. It filed the necessary petitions, but \nthose courts chose not to hear its case. That was the end of the \nline. There is no asterisk appended to the Rooker‐Feldman doc‐\ntrine saying that it evaporates once certiorari is denied. The \nstate court has adjudicated EOR’s claim, and that is that: it \nmay not come to the federal courthouse for Round Two. \n It may be more accurate, however, to read EOR’s com‐\nplaint and briefs in this court as acquiescing in the state \ncourt’s judgment, including the penalties it imposed, and ask‐\ning simply for a new ruling on the pure issues of law. In that \ncase, we do not face a Rooker‐Feldman problem, but EOR is no \nbetter off. The reason is simple: litigants cannot simply ignore \nlegal rulings from a competent state court and receive a do‐\nover in federal court. The full faith and credit statute, 28 \nU.S.C. § 1738, dictates the opposite rule: federal courts must \ngive the same preclusive effect to a state‐court judgment that \nit would receive under state law. See, e.g., Marrese v. American \nAcademy of Orthopaedic Surgeons, 470 U.S. 373, 380 (1985). \n Even if, as EOR insists, its federal‐law arguments are dif‐\nferent from the questions relating to the allocation of powers \namong the state agencies that were decided on the merits in \nthe prior litigation, that does not matter. Illinois applies claim \npreclusion when the original state court rendered a final judg‐\nment on the merits; the claims arise out of the same nucleus \nof fact; and the parties are identical. See Hudson v. City of Chi‐\ncago, 228 Ill. 2d 462, 467 (2008). This blocks parties not only \nfrom re‐litigating the issues the state court actually enter‐\ntained; it also bars litigation of any theory that could have \nbeen raised. And if that were not enough, EOR also faces issue \n\fNo. 17‐3107 7 \n\npreclusion. EOR raised its jurisdictional argument in the prior \nstate proceedings, and that issue was necessary to the Illinois \ncourt’s decision on the merits. Under those circumstances, \nEOR may not re‐litigate that issue. See Du Page Forklift Serv., \nInc. v. Material Handling Servs., Inc., 195 Ill. 2d 71, 77 (2001). \n We add for good measure that the Eleventh Amendment \nprohibits a federal court from ordering any relief against a \nstate agency based on state law. Pennhurst State Sch. & Hosp. \nv. Halderman, 465 U.S. 89, 100–01, 106 (1984). Although the en‐\nforcement of environmental laws is in part accomplished \nthrough a partnership between the states and the federal gov‐\nernment, federal law has nothing to say about which agency \na state is entitled to use in carrying out those tasks. That is \npurely a matter of state law. \n EOR also has asked this court for the opportunity to cure \nand refile its complaint. We deny its request. There is no way \nthat EOR could remedy the errors outlined above. Any \nchange in the suit that would remove these flaws would also \ndestroy EOR’s standing and the entire point of its lawsuit. If \nEOR intends to ignore the state court’s rulings and inject the \nsame kinds of hazardous waste acid into the same kinds of \nwells, then it will have to account for its actions before the \nstate authorities. If, on the other hand, EOR wants to inject \ninto its wells an entirely different acid that is not hazardous \nwaste under Illinois law, then it will have to take its chances \nin a future proceeding that is not at this time ripe for any fed‐\neral‐court action. \n We AFFIRM the judgment of the district court.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4359470/", "author_raw": "Diane Pamela Wood"}]}	WOOD	FLAUM	HAMILTON	1		{"WOOD": ", Chief", "FLAUM": ", Cir cuit", "HAMILTON": ", Cir cuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4582217/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: EOR Energy, LLC v. Illinois Environmental Protec\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-16\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________ \n No. 17‐3107 \n EOR ENERGY LLC, et al., \n Plaintiffs‐Appellants, \n v. \n\n ILLINOIS ENVIRONMENTAL PROTECTION AGENCY, et al., \n Defendants‐Appellees. \n ____________________ \n\n Appeal from the United States District Court for the \n Central District of Illinois. \n No. 3:16‐cv‐03122 — Sue E. Myerscough, Judge. \n ____________________ \n\n ARGUED SEPTEMBER 21, 2018 — DECIDED JANUARY 16, 2019 \n ____________________ \n\n Before WOOD, Chief Judge, and FLAUM and HAMILTON, Cir‐\ncuit Judges. \n WOOD, Chief Judge. In March 2007 the Illinois Environmen‐\ntal Protection Agency (IEPA) brought charges before the Illi‐\nnois Pollution Control Board (the Board) against EOR Energy, \nLLC (EOR) and AET Environmental, Inc. (AET). The IEPA ac‐\ncused EOR and AET of violating the Illinois Environmental \nProtection Act, 415 ILCS 5/1–5/58, by transporting hazardous‐\nwaste acid into Illinois, storing that waste, and then injecting \n\f2 No. 17‐3107 \n\nit into EOR’s industrial wells in Illinois. EOR challenged its \nprosecution by arguing that under the environmental law \nscheme put in place by Illinois, the IEPA and the Board do not \nhave jurisdiction over EOR’s acid dumping. EOR took that ar‐\ngument all the way through the Illinois courts, losing at every \nturn. The state courts determined that under Illinois law, \nEOR’s jurisdictional argument is meritless. \n Having lost in the state courts, EOR has turned to the fed‐\neral courthouse. It would like the federal district court to issue \na declaratory judgment that under federal law, the IEPA and \nthe Board do not have jurisdiction over any future attempts \nto dump similar acidic waste into its wells. The district court \ndismissed the case on several grounds: the Eleventh Amend‐\nment, issue preclusion, and a hint of Rooker‐Feldman, to the \nextent that EOR was trying to undo the adverse decisions \nfrom the state courts. We agree with the district court that this \nsuit cannot proceed in federal court: it is blocked by claim and \nissue preclusion; in some respects Rooker‐Feldman deprives \nthe district court of subject‐matter jurisdiction; and to the ex‐\ntent that anything else remains, EOR is stymied by the Elev‐\nenth Amendment. \n In 2002 a tire production facility in Colorado experienced \nan emergency overheating of industrial acid. AET Environ‐\nmental was hired by the plant to dispose of the acid. When it \ncould not find a nearby waste disposal plant that would ac‐\ncept the acid, AET decided to ship the acid to EOR, an oil com‐\npany with wells in Illinois. EOR stored the acid in Illinois for \ntwo years. At that point, it decided to inject some of the acid \ninto its wells. It ultimately disposed of the rest of the acid after \nseveral inspections and investigations into the safety of the \nacid as potentially dangerous hazardous waste. Five years \n\fNo. 17‐3107 3 \n\nlater, the IEPA brought charges before the Board against EOR \nand AET (collectively EOR), identifying the transportation, \nstorage, and injection of the acid as violations of Illinois envi‐\nronmental law. In June 2012, the IEPA filed an unopposed \nmotion for summary judgment. The Board granted that mo‐\ntion and imposed $60,000 in sanctions against AET and \n$200,000 against EOR. EOR then filed a motion for reconsid‐\neration, arguing for the first time that the Board did not have \njurisdiction under state law over its suit. EOR asserted that it \nwas not injecting “waste” into its wells. Instead, it said, it was \nmerely injecting an acid that was used to treat the wells and \naid in petroleum extraction. Therefore, according to EOR, the \nIllinois Department of Natural Resources (the Department) \nhad exclusive jurisdiction over EOR’s injection of acid into a \n“Class II well” under the Illinois Oil and Gas Act, 225 ILCS \n725/1. The Board rejected this argument and denied EOR’s \nmotion for reconsideration. \n EOR appealed directly to the Appellate Court of Illinois \n(Fourth District), which affirmed the Board’s decision. E.O.R. \nEnergy, LLC v. Pollution Control Bd., 2015 IL App (4th) 130443, \n¶ 100 (2015). The Appellate Court emphasized that this was a \nmatter of state law, specifically Illinois’s “comprehensive stat‐\nutory structure for the regulation of underground injection of \nmaterials into wells in Illinois,” although the statutory scheme \nwas “promulgated with federal approval.” Id. at ¶ 83. The \ncourt interpreted the Illinois Environmental Protection Act as \ngiving the Board jurisdiction to decide this type of case, and \nthe IEPA jurisdiction to enforce this matter, “[b]ecause the \nacid material was both a ‘waste’ and a ‘hazardous waste’ \nwithin the meaning of the Act.” Id. at ¶¶ 72–80. It further held \nthat not only was the Department’s jurisdiction in this area \n\f4 No. 17‐3107 \n\nnot exclusive; it was non‐existent. The court held that the De‐\npartment’s authority is limited to the injection of certain fluids \nassociated with oil and gas production. Id. at ¶¶ 81–88. Both \nthe Supreme Court of Illinois, E.O.R. Energy, LLC v. Pollution \nControl Bd., 396 Ill. Dec. 175 (2015), and the Supreme Court of \nthe United States, E.O.R. Energy, LLC v. Illinois Pollution Con‐\ntrol Bd., 136 S. Ct. 1684 (2016), declined to hear EOR’s appeals. \n Almost immediately after losing in state court, EOR and \nAET filed this action, purportedly seeking a declaratory judg‐\nment through the citizen‐suit provisions of the two federal \nlaws—the Resource Conservation and Recovery Act, 42 \nU.S.C. §§ 6901–6992k, and the Safe Drinking Water Act, 42 \nU.S.C. §§ 300f–300j‐27—that allow states to develop their own \nstatutory schemes after obtaining federal approval. As it did \nin the state‐court action, EOR argues that Class II injection \nwells in Illinois are exclusively regulated by the Department, \nand so the IEPA is not empowered to require EOR to obtain a \nClass I permit or otherwise prosecute EOR for (as it describes \nin its brief) trying “to use cheap or off‐spec acid similar to that \nused in the 2002‐2004 acidization” into its Class II wells. The \ndistrict court granted the IEPA’s motion to dismiss for failure \nto state a claim upon which relief can be granted. We review \nthat dismissal de novo. Kubiak v. City of Chicago, 810 F.3d 476, \n480 (7th Cir. 2016). \n EOR’s complaint, which we must accept as true at this \nstage, paints a clear picture of what it would like to do. EOR \nwants to continue injecting the hazardous acid into its wells, \nbut this time it would like to do so armed with a declaratory \njudgment from a federal court that will protect it from another \nenforcement action brought by the IEPA and another penalty \n\fNo. 17‐3107 5 \n\nimposed by the Board. As EOR puts it, it would like to con‐\nduct these operations “without fear of a similar ordeal as they \nare currently enduring.” It cites past litigation costs and the \nenforcement of the state court’s order—through fines and the \ndirection to obtain permits or cease unlawful conduct—as the \nkinds of harms it seeks to avoid with a federal court order. \n We emphatically reject this undisguised attempt to exe‐\ncute an end‐run around the state court’s decision. That court \nhas considered and ruled on EOR’s arguments about the dis‐\ntribution of power among Illinois’s environmental agencies. \nFirst, its decision is final. Second, there is no federal interest \nin which state agency is authorized to take action. And above \nall, EOR ignores the duty of the federal courts to respect state‐\ncourt judgments and the jurisdictional barrier that would ex‐\nist if what it really wants is lower federal‐court review of the \nstate‐court results. \n To the extent EOR wanted the district court and now this \ncourt to review and set aside the state court’s adverse deci‐\nsion, it runs into the Rooker‐Feldman doctrine, under which \nlower federal courts lack jurisdiction to review state‐court \njudgments or to decide matters inextricably related to state \ncourt decisions. See Rooker v. Fidelity Trust Co., 263 U.S. 413, \n415–16 (1923); District of Columbia Court of Appeals v. Feldman, \n460 U.S. 462, 482–86 (1983); Exxon Mobil Corp. v. Saudi Basic \nIndus. Corp., 544 U.S. 280, 284 (2005). \n The heart of EOR’s claim is that the Illinois Appellate \nCourt declared the wrong rule of law and that we should cor‐\nrect it. EOR would like us to hold that the IEPA and the Board \nindeed lack jurisdiction to hold EOR accountable for dump‐\ning acidic waste into its wells. But if EOR believed that the \n\f6 No. 17‐3107 \n\nIllinois court got it wrong, its remedy was to ask the state su‐\npreme court, and thereafter the Supreme Court of the United \nStates, to correct the error. It filed the necessary petitions, but \nthose courts chose not to hear its case. That was the end of the \nline. There is no asterisk appended to the Rooker‐Feldman doc‐\ntrine saying that it evaporates once certiorari is denied. The \nstate court has adjudicated EOR’s claim, and that is that: it \nmay not come to the federal courthouse for Round Two. \n It may be more accurate, however, to read EOR’s com‐\nplaint and briefs in this court as acquiescing in the state \ncourt’s judgment, including the penalties it imposed, and ask‐\ning simply for a new ruling on the pure issues of law. In that \ncase, we do not face a Rooker‐Feldman problem, but EOR is no \nbetter off. The reason is simple: litigants cannot simply ignore \nlegal rulings from a competent state court and receive a do‐\nover in federal court. The full faith and credit statute, 28 \nU.S.C. § 1738, dictates the opposite rule: federal courts must \ngive the same preclusive effect to a state‐court judgment that \nit would receive under state law. See, e.g., Marrese v. American \nAcademy of Orthopaedic Surgeons, 470 U.S. 373, 380 (1985). \n Even if, as EOR insists, its federal‐law arguments are dif‐\nferent from the questions relating to the allocation of powers \namong the state agencies that were decided on the merits in \nthe prior litigation, that does not matter. Illinois applies claim \npreclusion when the original state court rendered a final judg‐\nment on the merits; the claims arise out of the same nucleus \nof fact; and the parties are identical. See Hudson v. City of Chi‐\ncago, 228 Ill. 2d 462, 467 (2008). This blocks parties not only \nfrom re‐litigating the issues the state court actually enter‐\ntained; it also bars litigation of any theory that could have \nbeen raised. And if that were not enough, EOR also faces issue \n\fNo. 17‐3107 7 \n\npreclusion. EOR raised its jurisdictional argument in the prior \nstate proceedings, and that issue was necessary to the Illinois \ncourt’s decision on the merits. Under those circumstances, \nEOR may not re‐litigate that issue. See Du Page Forklift Serv., \nInc. v. Material Handling Servs., Inc., 195 Ill. 2d 71, 77 (2001). \n We add for good measure that the Eleventh Amendment \nprohibits a federal court from ordering any relief against a \nstate agency based on state law. Pennhurst State Sch. & Hosp. \nv. Halderman, 465 U.S. 89, 100–01, 106 (1984). Although the en‐\nforcement of environmental laws is in part accomplished \nthrough a partnership between the states and the federal gov‐\nernment, federal law has nothing to say about which agency \na state is entitled to use in carrying out those tasks. That is \npurely a matter of state law. \n EOR also has asked this court for the opportunity to cure \nand refile its complaint. We deny its request. There is no way \nthat EOR could remedy the errors outlined above. Any \nchange in the suit that would remove these flaws would also \ndestroy EOR’s standing and the entire point of its lawsuit. If \nEOR intends to ignore the state court’s rulings and inject the \nsame kinds of hazardous waste acid into the same kinds of \nwells, then it will have to account for its actions before the \nstate authorities. If, on the other hand, EOR wants to inject \ninto its wells an entirely different acid that is not hazardous \nwaste under Illinois law, then it will have to take its chances \nin a future proceeding that is not at this time ripe for any fed‐\neral‐court action. \n We AFFIRM the judgment of the district court.\n[END_CASE]", "role": "user" } ]
4,582,263		United States v. Nathan Driggers	2019-01-16	17-2994	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before WOOD, Chief Judge, and FLAUM and HAMILTON, Cir- cuit Judges.", "parties": "", "opinions": [{"author": "Diane Pamela Wood", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-2994\nUNITED STATES OF AMERICA,\n Plaintiff-Appellee,\n v.\n\nNATHAN DRIGGERS,\n Defendant-Appellant.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 15 CR 350 — John J. Tharp, Jr., Judge.\n ____________________\n\n ARGUED SEPTEMBER 21, 2018 — DECIDED JANUARY 16, 2019\n ____________________\n\n Before WOOD, Chief Judge, and FLAUM and HAMILTON, Cir-\ncuit Judges.\n WOOD, Chief Judge. In the wee hours of the morning on\nApril 12, 2015, thieves stole approximately 104 Ruger ﬁrearms\nfrom a train sitting in a Chicago railyard. Later that day, ac-\ncording to the government, Nathan Driggers purchased 30 of\nthose stolen guns. He wound up facing charges of being a\nfelon in possession of a ﬁrearm in violation of 18 U.S.C.\n§ 922(g), and possession of a stolen ﬁrearm in violation of 18\n\f2 No. 17-2994\n\nU.S.C. § 922(j). Driggers proceeded to trial, and a jury re-\nturned a split verdict, ﬁnding him guilty of being a felon in\npossession of a ﬁrearm, but not guilty of possessing a stolen\nﬁrearm. Driggers now appeals his conviction. He argues that\nthe district court improperly allowed testimony about his co-\ndefendant Warren Gates and gave an erroneous jury instruc-\ntion on joint possession. Finding no error in the district court’s\ndecisions, we aﬃrm Driggers’s conviction.\n I\n On April 12, 2015, eight men entered a Chicago railyard,\nbroke into a cargo train parked there, and discovered a cache\nof Ruger ﬁrearms being shipped from a factory in New\nHampshire to a distributor in Washington State. By the end of\nthe night, these men had stolen over 100 guns.\n The government did not accuse Driggers of participating\nin the actual robbery. Instead, its theory (supported by the tes-\ntimony of one of the robbers, Marcel Turner) was that Terry\nWalker, another of the robbers, contacted Driggers shortly af-\nter the heist to set up a sale of the stolen guns. The same day,\nTurner and Walker took approximately 30 of the stolen ﬁre-\narms to Driggers’s store. They met Driggers there, at which\npoint Driggers and Walker brieﬂy haggled over the price of\nthe guns and then consummated the sale. Though Turner did\nnot know how much Driggers ultimately paid for the 30 guns,\nTurner received $1,700 for the six guns that comprised his\nshare.\n The government’s other trial evidence attempted to cor-\nroborate Turner’s account of the gun sale. One inconvenient\nfact for the prosecution was that Driggers was not on the lease\nfor the store where the gun sale allegedly occurred. But\n\fNo. 17-2994 3\n\ntestimony from Driggers’s landlord and property manager\nestablished that, despite his absence from the lease, the store\ndid in fact belong to him. Their testimony showed that Drig-\ngers co-leased the store month-to-month with another man,\nYashmine Odom. Odom was apparently the store’s principal\noccupant, but Driggers paid the rent for the most part and\nmade at least some repairs.\n Additionally, police searched Driggers’s store during their\ninvestigation, and ATF Agent Jason Vachy described that\nsearch in detail at trial. He explained that the agents found a\nhodgepodge of merchandise (some of which appeared to be\nstolen), various personal documents and items belonging to\nDriggers and Odom, and a gun hidden in a tire in the\nbackroom. That gun’s serial number matched one of the guns\nstolen during the train robbery. There was a ﬁngerprint on\nthat gun, but it did not come from Driggers.\n The government also presented trial testimony and phone\nrecords that showed that shortly after Driggers allegedly pur-\nchased the 30 stolen guns, he contacted Warren Gates, a co-\ndefendant who pleaded guilty. Before Driggers’s trial, Gates\nadmitted to possessing 17 of the guns from the train robbery.\nNotably, during the ﬁrst four months of 2015, there were zero\ncontacts between Driggers’s and Gates’s cell phones, but\nshortly after the train robbery, there were 46 such contacts.\nPolice searched Gates’s storage units and found six of the sto-\nlen guns. Gates confessed to possessing these guns and fur-\nther admitted that he had purchased them, as well as 11 others\nfrom the train robbery. In his own case, Gates stated that he\npurchased those guns from two of the robbers, Elgin Lip-\nscomb and Alexander Peebles; in Driggers’s case, the prose-\ncution argued that Gates had bought them from Driggers. The\n\f4 No. 17-2994\n\ngovernment further urged that the jury could infer from Drig-\ngers’s contacts with Gates and Gates’s gun purchases that\nDriggers possessed and sold guns from the train robbery.\n II\n A\n As we indicated, Driggers raises only two points on ap-\npeal: one about the admission of testimony concerning Gates,\nand the other about the joint-possession jury instruction. We\nbegin with the latter.\n Driggers does not assert that the joint-possession instruc-\ntion used by the district court misstated the law. Instead he\nargues that the court should not have included the instruction\nbecause neither party’s theory of the case involved joint pos-\nsession, and so it only served to confuse the jury.\n We review a district court’s decision to give a jury instruc-\ntion for abuse of discretion. United States v. Tanner, 628 F.3d\n890, 904 (7th Cir. 2010). A joint-possession instruction is\nproper where “[t]here was substantial evidence that more\nthan one person could have possessed the gun.” United States\nv. Rainone, 816 F.3d 490, 494 (7th Cir. 2016). Indeed, we have\ngone so far as to say that “a joint possession instruction is ‘nec-\nessary’ when contraband is recovered from a jointly-occupied\nresidence.” Id. (quoting United States v. Lawrence, 788 F.3d 234,\n246 (7th Cir. 2015)) (emphasis added).\n Driggers is correct that the government primarily focused\non his alleged purchase and subsequent sole possession of the\nstolen guns. But he ignores the fact that the jury had before it\nevidence that he and Odom jointly possessed the ﬁrearm that\nthe oﬃcers found in his store. Driggers co-leased the store\nwith Odom, and both Driggers’s and Odom’s personal\n\fNo. 17-2994 5\n\neﬀects—including mail, a birthday card, and bank state-\nments—were found there. The owner and the property man-\nager of the store also testiﬁed that they observed both Drig-\ngers and Odom exhibiting control over the store, such as by\nmaking rent payments or oﬀering to make repairs.\n Given the substantial personal eﬀects addressed to both\nDriggers and Odom found within the store, as well as the tes-\ntimony suggesting that both occupied the store, there was am-\nple basis for a joint-possession instruction. The district court\nacted well within its discretion to provide the jury this guid-\nance.\n B\n Driggers also complains that the introduction of evidence\nabout his contacts with Gates, including the evidence about\nthe guns from the train robbery found in Gates’s storage\nlocker, was improper. He ﬁrst argues that the evidence was\nirrelevant under Federal Rule of Evidence 401. In addition, he\nasserts that the court’s decision to admit the evidence violated\nhis due process rights, because the government oﬀered incon-\nsistent theories about how Gates obtained the guns. A “dis-\ntrict court has ‘wide discretion’ when it rules on the admission\nof evidence.” United States v. Boros, 668 F.3d 901, 907 (7th Cir.\n2012). We thus review “a district court’s decision to admit or\nexclude evidence for abuse of discretion.” Id. We review the\nquestion whether a defendant’s due process rights were vio-\nlated de novo. See United States v. Kielar, 791 F.3d 733, 736 (7th\nCir. 2015).\n In fact, Driggers’s Rule 401 argument and his due process\nargument are intertwined. The potential relevance of any ev-\nidence regarding Gates could be limited because, based on the\n\f6 No. 17-2994\n\ngovernment’s contentions in Gates’s own prosecution, it ap-\npears that Driggers did not sell Gates any of the particular\nguns Gates was prosecuted for possessing. On the other hand,\nif Driggers had sold any of the guns he allegedly bought from\nthe train robbers to Gates, evidence about the contacts be-\ntween Driggers and Gates, as well as the fact that those guns\nwere found in Gates’s possession, would have been highly\nrelevant.\n In either scenario, the district court did not abuse its dis-\ncretion in ﬁnding that the Gates evidence passed the thresh-\nold for Rule 401. The standard for relevance is low. Tennard v.\nDretke, 542 U.S. 274, 284–85 (2004). When determining\nwhether evidence is relevant, we ask only whether it has\n“‘any tendency to make a fact more or less probable than it\nwould be without the evidence’ [when] ‘the fact is of conse-\nquence in determining the action.’” Boros, 668 F.3d at 907\n(quoting FED. R. EVID. 401). Even if Driggers did not directly\nsell Gates the guns police found in Gates’s storage locker, the\nfact that Driggers had 46 contacts with a known buyer of sto-\nlen guns immediately after he allegedly bought 30 stolen guns\nsupported the government’s theory that Driggers served as\nthe robbers’ fence. This ﬂurry of contacts was additionally\nsuspicious because Driggers and Gates were not in contact at\nall during the four months preceding the robbery. The district\ncourt thus did not abuse its discretion in ﬁnding that this evi-\ndence satisﬁed Rule 401.\n Before turning more directly to the due-process argument,\nwe explain how the Gates prosecution diﬀered from the case\nagainst Driggers. The government ﬁrst proceeded against\nGates; that case was resolved with a plea agreement. In that\nagreement, Gates admitted that he “purchased approximately\n\fNo. 17-2994 7\n\nseventeen of the ﬁrearms [from the train robbery] from co-de-\nfendants PEEBLES and LIPSCOMB on or after April 13, 2015.”\nPlea Agreement at 3, United States v. Gates, No. 1:15-cr-350-3\n(N.D. Ill. July 19, 2016), ECF No. 173 (capitalization in origi-\nnal). Gates also admitted that at the time the oﬃcers searched\nhis storage units, he kept 13 ﬁrearms in those units, six of\nwhich he had bought from Peebles and Lipscomb and “seven\nadditional ﬁrearms unrelated to the train theft.” Id. This ver-\nsion of the oﬀense—that Gates purchased 17 ﬁrearms from\nPeebles and Lipscomb, with oﬃcers recovering six of those 17\nguns from Gates’s storage units—was repeated by both ATF\nAgent Vachy in Gates’s Presentence Investigation Report and\nby the prosecution in Gates’s sentencing memorandum.\n By contrast, in Driggers’s prosecution, the government\nrepresented to both the district court and to the jury that the\nguns it had previously contended Gates bought from Peebles\nand Lipscomb were in fact sold to him by Driggers. The gov-\nernment has not explained to us (or to anyone else) how these\ntwo conﬂicting factual representations can coexist, and we are\nat a loss to reconcile them.\n The question is thus what to do about this inconsistency.\nThe circuits are split on the question whether the prosecu-\ntion’s use of inconsistent theories in multiple prosecutions vi-\nolates due process. Compare United States v. Frye, 489 F.3d\n201, 214 (5th Cir. 2007) (“[A] prosecutor can make inconsistent\narguments at the separate trials of codefendants without vio-\nlating the due process clause.”), with Smith v. Groose, 205 F.3d\n1045, 1049–52 (8th Cir. 2000) (agreeing with the Ninth Circuit\nthat “inconsistent prosecutorial theories can, in certain cir-\ncumstances, violate due process rights”); see also Bradshaw v.\nStumpf, 545 U.S. 175, 190 (2005) (Thomas, J. concurring) (“This\n\f8 No. 17-2994\n\nCourt has never hinted, much less held, that the Due Process\nClause prevents a State from prosecuting defendants based\non inconsistent theories.”). Though several litigants have\nraised this argument before us, we have thus far declined to\nchoose a side in this matter. We have not needed to address\nthe constitutional issue because the defendants who have ad-\nvanced this theory were either not prejudiced by the prosecu-\ntion’s behavior, see United States v. Flournoy, 842 F.3d 524, 530\n(7th Cir. 2016), or because the government did not actually\n“take fundamentally opposite positions in its two prosecu-\ntions.” United States v. Presbitero, 569 F.3d 691, 702 (7th Cir.\n2009). We likewise take a pass here, because Driggers was not\nprejudiced by the government’s actions.\n A defendant is entitled to a new trial only when “there is\na reasonable possibility that the trial error had a prejudicial\neﬀect on the jury’s verdict.” Flournoy, 842 F.3d at 530. Here,\nthere is a simple reason that the Gates evidence was not prej-\nudicial to Driggers: the jury acquitted him of the possession\nof a stolen ﬁrearm charge that the Gates evidence supported.\nEven if we totally disregard the Gates evidence, as well as the\nother testimony and argument it bolstered, there is still suﬃ-\ncient evidence to support the jury’s verdict on the other\ncharge. This is because the jury could ﬁnd Driggers guilty of\nbeing a felon in possession based solely on the gun found in\nhis store—a gun that had no connection to Gates. See Jackson\nv. Virginia, 443 U.S. 307, 319 (1979) (“Once a defendant has\nbeen found guilty of the crime charged, the factﬁnder’s role\nas weigher of the evidence is preserved through a legal con-\nclusion that upon judicial review all of the evidence is to be con-\nsidered in the light most favorable to the prosecution.”). As\nwe noted earlier, Driggers’s connection to, and control over,\nthe store was strongly supported by the evidence. The gun\n\fNo. 17-2994 9\n\nwas found hidden in a tire in the store’s backroom. This was\nenough to permit the jury to convict Driggers of being a felon\nin possession of a ﬁrearm in violation of 18 U.S.C. § 922(g).\n For purposes of that count, it did not matter whether the\ngun was stolen. And apparently the jury was not convinced\nthat Driggers knew, for purposes of the other count (under 18\nU.S.C. § 922(j)), that the gun in his store came from the train\nrobbery, because it acquitted him on that charge. Even if the\ngovernment’s theories in the Gates prosecution were incon-\nsistent with those it used against Driggers, there is thus no\nreasonable possibility that this tactic created a prejudicial ef-\nfect on the jury’s verdict.\n III\n Because the district court did not improperly instruct the\njury, and because Driggers suﬀered no prejudice from any er-\nror that may have existed in the treatment of the Gates evi-\ndence, we AFFIRM Driggers’s conviction and sentence.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4359516/", "author_raw": "Diane Pamela Wood"}]}	WOOD	FLAUM	HAMILTON	1		{"WOOD": ", Chief", "FLAUM": ", Cir cuit", "HAMILTON": ", Cir cuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4582263/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: United States v. Nathan Driggers\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-16\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-2994\nUNITED STATES OF AMERICA,\n Plaintiff-Appellee,\n v.\n\nNATHAN DRIGGERS,\n Defendant-Appellant.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 15 CR 350 — John J. Tharp, Jr., Judge.\n ____________________\n\n ARGUED SEPTEMBER 21, 2018 — DECIDED JANUARY 16, 2019\n ____________________\n\n Before WOOD, Chief Judge, and FLAUM and HAMILTON, Cir-\ncuit Judges.\n WOOD, Chief Judge. In the wee hours of the morning on\nApril 12, 2015, thieves stole approximately 104 Ruger ﬁrearms\nfrom a train sitting in a Chicago railyard. Later that day, ac-\ncording to the government, Nathan Driggers purchased 30 of\nthose stolen guns. He wound up facing charges of being a\nfelon in possession of a ﬁrearm in violation of 18 U.S.C.\n§ 922(g), and possession of a stolen ﬁrearm in violation of 18\n\f2 No. 17-2994\n\nU.S.C. § 922(j). Driggers proceeded to trial, and a jury re-\nturned a split verdict, ﬁnding him guilty of being a felon in\npossession of a ﬁrearm, but not guilty of possessing a stolen\nﬁrearm. Driggers now appeals his conviction. He argues that\nthe district court improperly allowed testimony about his co-\ndefendant Warren Gates and gave an erroneous jury instruc-\ntion on joint possession. Finding no error in the district court’s\ndecisions, we aﬃrm Driggers’s conviction.\n I\n On April 12, 2015, eight men entered a Chicago railyard,\nbroke into a cargo train parked there, and discovered a cache\nof Ruger ﬁrearms being shipped from a factory in New\nHampshire to a distributor in Washington State. By the end of\nthe night, these men had stolen over 100 guns.\n The government did not accuse Driggers of participating\nin the actual robbery. Instead, its theory (supported by the tes-\ntimony of one of the robbers, Marcel Turner) was that Terry\nWalker, another of the robbers, contacted Driggers shortly af-\nter the heist to set up a sale of the stolen guns. The same day,\nTurner and Walker took approximately 30 of the stolen ﬁre-\narms to Driggers’s store. They met Driggers there, at which\npoint Driggers and Walker brieﬂy haggled over the price of\nthe guns and then consummated the sale. Though Turner did\nnot know how much Driggers ultimately paid for the 30 guns,\nTurner received $1,700 for the six guns that comprised his\nshare.\n The government’s other trial evidence attempted to cor-\nroborate Turner’s account of the gun sale. One inconvenient\nfact for the prosecution was that Driggers was not on the lease\nfor the store where the gun sale allegedly occurred. But\n\fNo. 17-2994 3\n\ntestimony from Driggers’s landlord and property manager\nestablished that, despite his absence from the lease, the store\ndid in fact belong to him. Their testimony showed that Drig-\ngers co-leased the store month-to-month with another man,\nYashmine Odom. Odom was apparently the store’s principal\noccupant, but Driggers paid the rent for the most part and\nmade at least some repairs.\n Additionally, police searched Driggers’s store during their\ninvestigation, and ATF Agent Jason Vachy described that\nsearch in detail at trial. He explained that the agents found a\nhodgepodge of merchandise (some of which appeared to be\nstolen), various personal documents and items belonging to\nDriggers and Odom, and a gun hidden in a tire in the\nbackroom. That gun’s serial number matched one of the guns\nstolen during the train robbery. There was a ﬁngerprint on\nthat gun, but it did not come from Driggers.\n The government also presented trial testimony and phone\nrecords that showed that shortly after Driggers allegedly pur-\nchased the 30 stolen guns, he contacted Warren Gates, a co-\ndefendant who pleaded guilty. Before Driggers’s trial, Gates\nadmitted to possessing 17 of the guns from the train robbery.\nNotably, during the ﬁrst four months of 2015, there were zero\ncontacts between Driggers’s and Gates’s cell phones, but\nshortly after the train robbery, there were 46 such contacts.\nPolice searched Gates’s storage units and found six of the sto-\nlen guns. Gates confessed to possessing these guns and fur-\nther admitted that he had purchased them, as well as 11 others\nfrom the train robbery. In his own case, Gates stated that he\npurchased those guns from two of the robbers, Elgin Lip-\nscomb and Alexander Peebles; in Driggers’s case, the prose-\ncution argued that Gates had bought them from Driggers. The\n\f4 No. 17-2994\n\ngovernment further urged that the jury could infer from Drig-\ngers’s contacts with Gates and Gates’s gun purchases that\nDriggers possessed and sold guns from the train robbery.\n II\n A\n As we indicated, Driggers raises only two points on ap-\npeal: one about the admission of testimony concerning Gates,\nand the other about the joint-possession jury instruction. We\nbegin with the latter.\n Driggers does not assert that the joint-possession instruc-\ntion used by the district court misstated the law. Instead he\nargues that the court should not have included the instruction\nbecause neither party’s theory of the case involved joint pos-\nsession, and so it only served to confuse the jury.\n We review a district court’s decision to give a jury instruc-\ntion for abuse of discretion. United States v. Tanner, 628 F.3d\n890, 904 (7th Cir. 2010). A joint-possession instruction is\nproper where “[t]here was substantial evidence that more\nthan one person could have possessed the gun.” United States\nv. Rainone, 816 F.3d 490, 494 (7th Cir. 2016). Indeed, we have\ngone so far as to say that “a joint possession instruction is ‘nec-\nessary’ when contraband is recovered from a jointly-occupied\nresidence.” Id. (quoting United States v. Lawrence, 788 F.3d 234,\n246 (7th Cir. 2015)) (emphasis added).\n Driggers is correct that the government primarily focused\non his alleged purchase and subsequent sole possession of the\nstolen guns. But he ignores the fact that the jury had before it\nevidence that he and Odom jointly possessed the ﬁrearm that\nthe oﬃcers found in his store. Driggers co-leased the store\nwith Odom, and both Driggers’s and Odom’s personal\n\fNo. 17-2994 5\n\neﬀects—including mail, a birthday card, and bank state-\nments—were found there. The owner and the property man-\nager of the store also testiﬁed that they observed both Drig-\ngers and Odom exhibiting control over the store, such as by\nmaking rent payments or oﬀering to make repairs.\n Given the substantial personal eﬀects addressed to both\nDriggers and Odom found within the store, as well as the tes-\ntimony suggesting that both occupied the store, there was am-\nple basis for a joint-possession instruction. The district court\nacted well within its discretion to provide the jury this guid-\nance.\n B\n Driggers also complains that the introduction of evidence\nabout his contacts with Gates, including the evidence about\nthe guns from the train robbery found in Gates’s storage\nlocker, was improper. He ﬁrst argues that the evidence was\nirrelevant under Federal Rule of Evidence 401. In addition, he\nasserts that the court’s decision to admit the evidence violated\nhis due process rights, because the government oﬀered incon-\nsistent theories about how Gates obtained the guns. A “dis-\ntrict court has ‘wide discretion’ when it rules on the admission\nof evidence.” United States v. Boros, 668 F.3d 901, 907 (7th Cir.\n2012). We thus review “a district court’s decision to admit or\nexclude evidence for abuse of discretion.” Id. We review the\nquestion whether a defendant’s due process rights were vio-\nlated de novo. See United States v. Kielar, 791 F.3d 733, 736 (7th\nCir. 2015).\n In fact, Driggers’s Rule 401 argument and his due process\nargument are intertwined. The potential relevance of any ev-\nidence regarding Gates could be limited because, based on the\n\f6 No. 17-2994\n\ngovernment’s contentions in Gates’s own prosecution, it ap-\npears that Driggers did not sell Gates any of the particular\nguns Gates was prosecuted for possessing. On the other hand,\nif Driggers had sold any of the guns he allegedly bought from\nthe train robbers to Gates, evidence about the contacts be-\ntween Driggers and Gates, as well as the fact that those guns\nwere found in Gates’s possession, would have been highly\nrelevant.\n In either scenario, the district court did not abuse its dis-\ncretion in ﬁnding that the Gates evidence passed the thresh-\nold for Rule 401. The standard for relevance is low. Tennard v.\nDretke, 542 U.S. 274, 284–85 (2004). When determining\nwhether evidence is relevant, we ask only whether it has\n“‘any tendency to make a fact more or less probable than it\nwould be without the evidence’ [when] ‘the fact is of conse-\nquence in determining the action.’” Boros, 668 F.3d at 907\n(quoting FED. R. EVID. 401). Even if Driggers did not directly\nsell Gates the guns police found in Gates’s storage locker, the\nfact that Driggers had 46 contacts with a known buyer of sto-\nlen guns immediately after he allegedly bought 30 stolen guns\nsupported the government’s theory that Driggers served as\nthe robbers’ fence. This ﬂurry of contacts was additionally\nsuspicious because Driggers and Gates were not in contact at\nall during the four months preceding the robbery. The district\ncourt thus did not abuse its discretion in ﬁnding that this evi-\ndence satisﬁed Rule 401.\n Before turning more directly to the due-process argument,\nwe explain how the Gates prosecution diﬀered from the case\nagainst Driggers. The government ﬁrst proceeded against\nGates; that case was resolved with a plea agreement. In that\nagreement, Gates admitted that he “purchased approximately\n\fNo. 17-2994 7\n\nseventeen of the ﬁrearms [from the train robbery] from co-de-\nfendants PEEBLES and LIPSCOMB on or after April 13, 2015.”\nPlea Agreement at 3, United States v. Gates, No. 1:15-cr-350-3\n(N.D. Ill. July 19, 2016), ECF No. 173 (capitalization in origi-\nnal). Gates also admitted that at the time the oﬃcers searched\nhis storage units, he kept 13 ﬁrearms in those units, six of\nwhich he had bought from Peebles and Lipscomb and “seven\nadditional ﬁrearms unrelated to the train theft.” Id. This ver-\nsion of the oﬀense—that Gates purchased 17 ﬁrearms from\nPeebles and Lipscomb, with oﬃcers recovering six of those 17\nguns from Gates’s storage units—was repeated by both ATF\nAgent Vachy in Gates’s Presentence Investigation Report and\nby the prosecution in Gates’s sentencing memorandum.\n By contrast, in Driggers’s prosecution, the government\nrepresented to both the district court and to the jury that the\nguns it had previously contended Gates bought from Peebles\nand Lipscomb were in fact sold to him by Driggers. The gov-\nernment has not explained to us (or to anyone else) how these\ntwo conﬂicting factual representations can coexist, and we are\nat a loss to reconcile them.\n The question is thus what to do about this inconsistency.\nThe circuits are split on the question whether the prosecu-\ntion’s use of inconsistent theories in multiple prosecutions vi-\nolates due process. Compare United States v. Frye, 489 F.3d\n201, 214 (5th Cir. 2007) (“[A] prosecutor can make inconsistent\narguments at the separate trials of codefendants without vio-\nlating the due process clause.”), with Smith v. Groose, 205 F.3d\n1045, 1049–52 (8th Cir. 2000) (agreeing with the Ninth Circuit\nthat “inconsistent prosecutorial theories can, in certain cir-\ncumstances, violate due process rights”); see also Bradshaw v.\nStumpf, 545 U.S. 175, 190 (2005) (Thomas, J. concurring) (“This\n\f8 No. 17-2994\n\nCourt has never hinted, much less held, that the Due Process\nClause prevents a State from prosecuting defendants based\non inconsistent theories.”). Though several litigants have\nraised this argument before us, we have thus far declined to\nchoose a side in this matter. We have not needed to address\nthe constitutional issue because the defendants who have ad-\nvanced this theory were either not prejudiced by the prosecu-\ntion’s behavior, see United States v. Flournoy, 842 F.3d 524, 530\n(7th Cir. 2016), or because the government did not actually\n“take fundamentally opposite positions in its two prosecu-\ntions.” United States v. Presbitero, 569 F.3d 691, 702 (7th Cir.\n2009). We likewise take a pass here, because Driggers was not\nprejudiced by the government’s actions.\n A defendant is entitled to a new trial only when “there is\na reasonable possibility that the trial error had a prejudicial\neﬀect on the jury’s verdict.” Flournoy, 842 F.3d at 530. Here,\nthere is a simple reason that the Gates evidence was not prej-\nudicial to Driggers: the jury acquitted him of the possession\nof a stolen ﬁrearm charge that the Gates evidence supported.\nEven if we totally disregard the Gates evidence, as well as the\nother testimony and argument it bolstered, there is still suﬃ-\ncient evidence to support the jury’s verdict on the other\ncharge. This is because the jury could ﬁnd Driggers guilty of\nbeing a felon in possession based solely on the gun found in\nhis store—a gun that had no connection to Gates. See Jackson\nv. Virginia, 443 U.S. 307, 319 (1979) (“Once a defendant has\nbeen found guilty of the crime charged, the factﬁnder’s role\nas weigher of the evidence is preserved through a legal con-\nclusion that upon judicial review all of the evidence is to be con-\nsidered in the light most favorable to the prosecution.”). As\nwe noted earlier, Driggers’s connection to, and control over,\nthe store was strongly supported by the evidence. The gun\n\fNo. 17-2994 9\n\nwas found hidden in a tire in the store’s backroom. This was\nenough to permit the jury to convict Driggers of being a felon\nin possession of a ﬁrearm in violation of 18 U.S.C. § 922(g).\n For purposes of that count, it did not matter whether the\ngun was stolen. And apparently the jury was not convinced\nthat Driggers knew, for purposes of the other count (under 18\nU.S.C. § 922(j)), that the gun in his store came from the train\nrobbery, because it acquitted him on that charge. Even if the\ngovernment’s theories in the Gates prosecution were incon-\nsistent with those it used against Driggers, there is thus no\nreasonable possibility that this tactic created a prejudicial ef-\nfect on the jury’s verdict.\n III\n Because the district court did not improperly instruct the\njury, and because Driggers suﬀered no prejudice from any er-\nror that may have existed in the treatment of the Gates evi-\ndence, we AFFIRM Driggers’s conviction and sentence.\n[END_CASE]", "role": "user" } ]
4,582,264		EOR Energy, LLC v. Illinois Environmental Protec	2019-01-16	17-3107	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before WOOD, Chief Judge, and FLAUM and HAMILTON, Cir‐ cuit Judges.", "parties": "", "opinions": [{"author": "Diane Pamela Wood", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________ \n No. 17‐3107 \n EOR ENERGY LLC, et al., \n Plaintiffs‐Appellants, \n v. \n\n ILLINOIS ENVIRONMENTAL PROTECTION AGENCY, et al., \n Defendants‐Appellees. \n ____________________ \n\n Appeal from the United States District Court for the \n Central District of Illinois. \n No. 3:16‐cv‐03122 — Sue E. Myerscough, Judge. \n ____________________ \n\n ARGUED SEPTEMBER 21, 2018 — DECIDED JANUARY 16, 2019 \n ____________________ \n\n Before WOOD, Chief Judge, and FLAUM and HAMILTON, Cir‐\ncuit Judges. \n WOOD, Chief Judge. In March 2007 the Illinois Environmen‐\ntal Protection Agency (IEPA) brought charges before the Illi‐\nnois Pollution Control Board (the Board) against EOR Energy, \nLLC (EOR) and AET Environmental, Inc. (AET). The IEPA ac‐\ncused EOR and AET of violating the Illinois Environmental \nProtection Act, 415 ILCS 5/1–5/58, by transporting hazardous‐\nwaste acid into Illinois, storing that waste, and then injecting \n\f2 No. 17‐3107 \n\nit into EOR’s industrial wells in Illinois. EOR challenged its \nprosecution by arguing that under the environmental law \nscheme put in place by Illinois, the IEPA and the Board do not \nhave jurisdiction over EOR’s acid dumping. EOR took that ar‐\ngument all the way through the Illinois courts, losing at every \nturn. The state courts determined that under Illinois law, \nEOR’s jurisdictional argument is meritless. \n Having lost in the state courts, EOR has turned to the fed‐\neral courthouse. It would like the federal district court to issue \na declaratory judgment that under federal law, the IEPA and \nthe Board do not have jurisdiction over any future attempts \nto dump similar acidic waste into its wells. The district court \ndismissed the case on several grounds: the Eleventh Amend‐\nment, issue preclusion, and a hint of Rooker‐Feldman, to the \nextent that EOR was trying to undo the adverse decisions \nfrom the state courts. We agree with the district court that this \nsuit cannot proceed in federal court: it is blocked by claim and \nissue preclusion; in some respects Rooker‐Feldman deprives \nthe district court of subject‐matter jurisdiction; and to the ex‐\ntent that anything else remains, EOR is stymied by the Elev‐\nenth Amendment. \n In 2002 a tire production facility in Colorado experienced \nan emergency overheating of industrial acid. AET Environ‐\nmental was hired by the plant to dispose of the acid. When it \ncould not find a nearby waste disposal plant that would ac‐\ncept the acid, AET decided to ship the acid to EOR, an oil com‐\npany with wells in Illinois. EOR stored the acid in Illinois for \ntwo years. At that point, it decided to inject some of the acid \ninto its wells. It ultimately disposed of the rest of the acid after \nseveral inspections and investigations into the safety of the \nacid as potentially dangerous hazardous waste. Five years \n\fNo. 17‐3107 3 \n\nlater, the IEPA brought charges before the Board against EOR \nand AET (collectively EOR), identifying the transportation, \nstorage, and injection of the acid as violations of Illinois envi‐\nronmental law. In June 2012, the IEPA filed an unopposed \nmotion for summary judgment. The Board granted that mo‐\ntion and imposed $60,000 in sanctions against AET and \n$200,000 against EOR. EOR then filed a motion for reconsid‐\neration, arguing for the first time that the Board did not have \njurisdiction under state law over its suit. EOR asserted that it \nwas not injecting “waste” into its wells. Instead, it said, it was \nmerely injecting an acid that was used to treat the wells and \naid in petroleum extraction. Therefore, according to EOR, the \nIllinois Department of Natural Resources (the Department) \nhad exclusive jurisdiction over EOR’s injection of acid into a \n“Class II well” under the Illinois Oil and Gas Act, 225 ILCS \n725/1. The Board rejected this argument and denied EOR’s \nmotion for reconsideration. \n EOR appealed directly to the Appellate Court of Illinois \n(Fourth District), which affirmed the Board’s decision. E.O.R. \nEnergy, LLC v. Pollution Control Bd., 2015 IL App (4th) 130443, \n¶ 100 (2015). The Appellate Court emphasized that this was a \nmatter of state law, specifically Illinois’s “comprehensive stat‐\nutory structure for the regulation of underground injection of \nmaterials into wells in Illinois,” although the statutory scheme \nwas “promulgated with federal approval.” Id. at ¶ 83. The \ncourt interpreted the Illinois Environmental Protection Act as \ngiving the Board jurisdiction to decide this type of case, and \nthe IEPA jurisdiction to enforce this matter, “[b]ecause the \nacid material was both a ‘waste’ and a ‘hazardous waste’ \nwithin the meaning of the Act.” Id. at ¶¶ 72–80. It further held \nthat not only was the Department’s jurisdiction in this area \n\f4 No. 17‐3107 \n\nnot exclusive; it was non‐existent. The court held that the De‐\npartment’s authority is limited to the injection of certain fluids \nassociated with oil and gas production. Id. at ¶¶ 81–88. Both \nthe Supreme Court of Illinois, E.O.R. Energy, LLC v. Pollution \nControl Bd., 396 Ill. Dec. 175 (2015), and the Supreme Court of \nthe United States, E.O.R. Energy, LLC v. Illinois Pollution Con‐\ntrol Bd., 136 S. Ct. 1684 (2016), declined to hear EOR’s appeals. \n Almost immediately after losing in state court, EOR and \nAET filed this action, purportedly seeking a declaratory judg‐\nment through the citizen‐suit provisions of the two federal \nlaws—the Resource Conservation and Recovery Act, 42 \nU.S.C. §§ 6901–6992k, and the Safe Drinking Water Act, 42 \nU.S.C. §§ 300f–300j‐27—that allow states to develop their own \nstatutory schemes after obtaining federal approval. As it did \nin the state‐court action, EOR argues that Class II injection \nwells in Illinois are exclusively regulated by the Department, \nand so the IEPA is not empowered to require EOR to obtain a \nClass I permit or otherwise prosecute EOR for (as it describes \nin its brief) trying “to use cheap or off‐spec acid similar to that \nused in the 2002‐2004 acidization” into its Class II wells. The \ndistrict court granted the IEPA’s motion to dismiss for failure \nto state a claim upon which relief can be granted. We review \nthat dismissal de novo. Kubiak v. City of Chicago, 810 F.3d 476, \n480 (7th Cir. 2016). \n EOR’s complaint, which we must accept as true at this \nstage, paints a clear picture of what it would like to do. EOR \nwants to continue injecting the hazardous acid into its wells, \nbut this time it would like to do so armed with a declaratory \njudgment from a federal court that will protect it from another \nenforcement action brought by the IEPA and another penalty \n\fNo. 17‐3107 5 \n\nimposed by the Board. As EOR puts it, it would like to con‐\nduct these operations “without fear of a similar ordeal as they \nare currently enduring.” It cites past litigation costs and the \nenforcement of the state court’s order—through fines and the \ndirection to obtain permits or cease unlawful conduct—as the \nkinds of harms it seeks to avoid with a federal court order. \n We emphatically reject this undisguised attempt to exe‐\ncute an end‐run around the state court’s decision. That court \nhas considered and ruled on EOR’s arguments about the dis‐\ntribution of power among Illinois’s environmental agencies. \nFirst, its decision is final. Second, there is no federal interest \nin which state agency is authorized to take action. And above \nall, EOR ignores the duty of the federal courts to respect state‐\ncourt judgments and the jurisdictional barrier that would ex‐\nist if what it really wants is lower federal‐court review of the \nstate‐court results. \n To the extent EOR wanted the district court and now this \ncourt to review and set aside the state court’s adverse deci‐\nsion, it runs into the Rooker‐Feldman doctrine, under which \nlower federal courts lack jurisdiction to review state‐court \njudgments or to decide matters inextricably related to state \ncourt decisions. See Rooker v. Fidelity Trust Co., 263 U.S. 413, \n415–16 (1923); District of Columbia Court of Appeals v. Feldman, \n460 U.S. 462, 482–86 (1983); Exxon Mobil Corp. v. Saudi Basic \nIndus. Corp., 544 U.S. 280, 284 (2005). \n The heart of EOR’s claim is that the Illinois Appellate \nCourt declared the wrong rule of law and that we should cor‐\nrect it. EOR would like us to hold that the IEPA and the Board \nindeed lack jurisdiction to hold EOR accountable for dump‐\ning acidic waste into its wells. But if EOR believed that the \n\f6 No. 17‐3107 \n\nIllinois court got it wrong, its remedy was to ask the state su‐\npreme court, and thereafter the Supreme Court of the United \nStates, to correct the error. It filed the necessary petitions, but \nthose courts chose not to hear its case. That was the end of the \nline. There is no asterisk appended to the Rooker‐Feldman doc‐\ntrine saying that it evaporates once certiorari is denied. The \nstate court has adjudicated EOR’s claim, and that is that: it \nmay not come to the federal courthouse for Round Two. \n It may be more accurate, however, to read EOR’s com‐\nplaint and briefs in this court as acquiescing in the state \ncourt’s judgment, including the penalties it imposed, and ask‐\ning simply for a new ruling on the pure issues of law. In that \ncase, we do not face a Rooker‐Feldman problem, but EOR is no \nbetter off. The reason is simple: litigants cannot simply ignore \nlegal rulings from a competent state court and receive a do‐\nover in federal court. The full faith and credit statute, 28 \nU.S.C. § 1738, dictates the opposite rule: federal courts must \ngive the same preclusive effect to a state‐court judgment that \nit would receive under state law. See, e.g., Marrese v. American \nAcademy of Orthopaedic Surgeons, 470 U.S. 373, 380 (1985). \n Even if, as EOR insists, its federal‐law arguments are dif‐\nferent from the questions relating to the allocation of powers \namong the state agencies that were decided on the merits in \nthe prior litigation, that does not matter. Illinois applies claim \npreclusion when the original state court rendered a final judg‐\nment on the merits; the claims arise out of the same nucleus \nof fact; and the parties are identical. See Hudson v. City of Chi‐\ncago, 228 Ill. 2d 462, 467 (2008). This blocks parties not only \nfrom re‐litigating the issues the state court actually enter‐\ntained; it also bars litigation of any theory that could have \nbeen raised. And if that were not enough, EOR also faces issue \n\fNo. 17‐3107 7 \n\npreclusion. EOR raised its jurisdictional argument in the prior \nstate proceedings, and that issue was necessary to the Illinois \ncourt’s decision on the merits. Under those circumstances, \nEOR may not re‐litigate that issue. See Du Page Forklift Serv., \nInc. v. Material Handling Servs., Inc., 195 Ill. 2d 71, 77 (2001). \n We add for good measure that the Eleventh Amendment \nprohibits a federal court from ordering any relief against a \nstate agency based on state law. Pennhurst State Sch. & Hosp. \nv. Halderman, 465 U.S. 89, 100–01, 106 (1984). Although the en‐\nforcement of environmental laws is in part accomplished \nthrough a partnership between the states and the federal gov‐\nernment, federal law has nothing to say about which agency \na state is entitled to use in carrying out those tasks. That is \npurely a matter of state law. \n EOR also has asked this court for the opportunity to cure \nand refile its complaint. We deny its request. There is no way \nthat EOR could remedy the errors outlined above. Any \nchange in the suit that would remove these flaws would also \ndestroy EOR’s standing and the entire point of its lawsuit. If \nEOR intends to ignore the state court’s rulings and inject the \nsame kinds of hazardous waste acid into the same kinds of \nwells, then it will have to account for its actions before the \nstate authorities. If, on the other hand, EOR wants to inject \ninto its wells an entirely different acid that is not hazardous \nwaste under Illinois law, then it will have to take its chances \nin a future proceeding that is not at this time ripe for any fed‐\neral‐court action. \n We AFFIRM the judgment of the district court.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4359517/", "author_raw": "Diane Pamela Wood"}]}	WOOD	FLAUM	HAMILTON	1		{"WOOD": ", Chief", "FLAUM": ", Cir cuit", "HAMILTON": ", Cir cuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4582264/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: EOR Energy, LLC v. Illinois Environmental Protec\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-16\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________ \n No. 17‐3107 \n EOR ENERGY LLC, et al., \n Plaintiffs‐Appellants, \n v. \n\n ILLINOIS ENVIRONMENTAL PROTECTION AGENCY, et al., \n Defendants‐Appellees. \n ____________________ \n\n Appeal from the United States District Court for the \n Central District of Illinois. \n No. 3:16‐cv‐03122 — Sue E. Myerscough, Judge. \n ____________________ \n\n ARGUED SEPTEMBER 21, 2018 — DECIDED JANUARY 16, 2019 \n ____________________ \n\n Before WOOD, Chief Judge, and FLAUM and HAMILTON, Cir‐\ncuit Judges. \n WOOD, Chief Judge. In March 2007 the Illinois Environmen‐\ntal Protection Agency (IEPA) brought charges before the Illi‐\nnois Pollution Control Board (the Board) against EOR Energy, \nLLC (EOR) and AET Environmental, Inc. (AET). The IEPA ac‐\ncused EOR and AET of violating the Illinois Environmental \nProtection Act, 415 ILCS 5/1–5/58, by transporting hazardous‐\nwaste acid into Illinois, storing that waste, and then injecting \n\f2 No. 17‐3107 \n\nit into EOR’s industrial wells in Illinois. EOR challenged its \nprosecution by arguing that under the environmental law \nscheme put in place by Illinois, the IEPA and the Board do not \nhave jurisdiction over EOR’s acid dumping. EOR took that ar‐\ngument all the way through the Illinois courts, losing at every \nturn. The state courts determined that under Illinois law, \nEOR’s jurisdictional argument is meritless. \n Having lost in the state courts, EOR has turned to the fed‐\neral courthouse. It would like the federal district court to issue \na declaratory judgment that under federal law, the IEPA and \nthe Board do not have jurisdiction over any future attempts \nto dump similar acidic waste into its wells. The district court \ndismissed the case on several grounds: the Eleventh Amend‐\nment, issue preclusion, and a hint of Rooker‐Feldman, to the \nextent that EOR was trying to undo the adverse decisions \nfrom the state courts. We agree with the district court that this \nsuit cannot proceed in federal court: it is blocked by claim and \nissue preclusion; in some respects Rooker‐Feldman deprives \nthe district court of subject‐matter jurisdiction; and to the ex‐\ntent that anything else remains, EOR is stymied by the Elev‐\nenth Amendment. \n In 2002 a tire production facility in Colorado experienced \nan emergency overheating of industrial acid. AET Environ‐\nmental was hired by the plant to dispose of the acid. When it \ncould not find a nearby waste disposal plant that would ac‐\ncept the acid, AET decided to ship the acid to EOR, an oil com‐\npany with wells in Illinois. EOR stored the acid in Illinois for \ntwo years. At that point, it decided to inject some of the acid \ninto its wells. It ultimately disposed of the rest of the acid after \nseveral inspections and investigations into the safety of the \nacid as potentially dangerous hazardous waste. Five years \n\fNo. 17‐3107 3 \n\nlater, the IEPA brought charges before the Board against EOR \nand AET (collectively EOR), identifying the transportation, \nstorage, and injection of the acid as violations of Illinois envi‐\nronmental law. In June 2012, the IEPA filed an unopposed \nmotion for summary judgment. The Board granted that mo‐\ntion and imposed $60,000 in sanctions against AET and \n$200,000 against EOR. EOR then filed a motion for reconsid‐\neration, arguing for the first time that the Board did not have \njurisdiction under state law over its suit. EOR asserted that it \nwas not injecting “waste” into its wells. Instead, it said, it was \nmerely injecting an acid that was used to treat the wells and \naid in petroleum extraction. Therefore, according to EOR, the \nIllinois Department of Natural Resources (the Department) \nhad exclusive jurisdiction over EOR’s injection of acid into a \n“Class II well” under the Illinois Oil and Gas Act, 225 ILCS \n725/1. The Board rejected this argument and denied EOR’s \nmotion for reconsideration. \n EOR appealed directly to the Appellate Court of Illinois \n(Fourth District), which affirmed the Board’s decision. E.O.R. \nEnergy, LLC v. Pollution Control Bd., 2015 IL App (4th) 130443, \n¶ 100 (2015). The Appellate Court emphasized that this was a \nmatter of state law, specifically Illinois’s “comprehensive stat‐\nutory structure for the regulation of underground injection of \nmaterials into wells in Illinois,” although the statutory scheme \nwas “promulgated with federal approval.” Id. at ¶ 83. The \ncourt interpreted the Illinois Environmental Protection Act as \ngiving the Board jurisdiction to decide this type of case, and \nthe IEPA jurisdiction to enforce this matter, “[b]ecause the \nacid material was both a ‘waste’ and a ‘hazardous waste’ \nwithin the meaning of the Act.” Id. at ¶¶ 72–80. It further held \nthat not only was the Department’s jurisdiction in this area \n\f4 No. 17‐3107 \n\nnot exclusive; it was non‐existent. The court held that the De‐\npartment’s authority is limited to the injection of certain fluids \nassociated with oil and gas production. Id. at ¶¶ 81–88. Both \nthe Supreme Court of Illinois, E.O.R. Energy, LLC v. Pollution \nControl Bd., 396 Ill. Dec. 175 (2015), and the Supreme Court of \nthe United States, E.O.R. Energy, LLC v. Illinois Pollution Con‐\ntrol Bd., 136 S. Ct. 1684 (2016), declined to hear EOR’s appeals. \n Almost immediately after losing in state court, EOR and \nAET filed this action, purportedly seeking a declaratory judg‐\nment through the citizen‐suit provisions of the two federal \nlaws—the Resource Conservation and Recovery Act, 42 \nU.S.C. §§ 6901–6992k, and the Safe Drinking Water Act, 42 \nU.S.C. §§ 300f–300j‐27—that allow states to develop their own \nstatutory schemes after obtaining federal approval. As it did \nin the state‐court action, EOR argues that Class II injection \nwells in Illinois are exclusively regulated by the Department, \nand so the IEPA is not empowered to require EOR to obtain a \nClass I permit or otherwise prosecute EOR for (as it describes \nin its brief) trying “to use cheap or off‐spec acid similar to that \nused in the 2002‐2004 acidization” into its Class II wells. The \ndistrict court granted the IEPA’s motion to dismiss for failure \nto state a claim upon which relief can be granted. We review \nthat dismissal de novo. Kubiak v. City of Chicago, 810 F.3d 476, \n480 (7th Cir. 2016). \n EOR’s complaint, which we must accept as true at this \nstage, paints a clear picture of what it would like to do. EOR \nwants to continue injecting the hazardous acid into its wells, \nbut this time it would like to do so armed with a declaratory \njudgment from a federal court that will protect it from another \nenforcement action brought by the IEPA and another penalty \n\fNo. 17‐3107 5 \n\nimposed by the Board. As EOR puts it, it would like to con‐\nduct these operations “without fear of a similar ordeal as they \nare currently enduring.” It cites past litigation costs and the \nenforcement of the state court’s order—through fines and the \ndirection to obtain permits or cease unlawful conduct—as the \nkinds of harms it seeks to avoid with a federal court order. \n We emphatically reject this undisguised attempt to exe‐\ncute an end‐run around the state court’s decision. That court \nhas considered and ruled on EOR’s arguments about the dis‐\ntribution of power among Illinois’s environmental agencies. \nFirst, its decision is final. Second, there is no federal interest \nin which state agency is authorized to take action. And above \nall, EOR ignores the duty of the federal courts to respect state‐\ncourt judgments and the jurisdictional barrier that would ex‐\nist if what it really wants is lower federal‐court review of the \nstate‐court results. \n To the extent EOR wanted the district court and now this \ncourt to review and set aside the state court’s adverse deci‐\nsion, it runs into the Rooker‐Feldman doctrine, under which \nlower federal courts lack jurisdiction to review state‐court \njudgments or to decide matters inextricably related to state \ncourt decisions. See Rooker v. Fidelity Trust Co., 263 U.S. 413, \n415–16 (1923); District of Columbia Court of Appeals v. Feldman, \n460 U.S. 462, 482–86 (1983); Exxon Mobil Corp. v. Saudi Basic \nIndus. Corp., 544 U.S. 280, 284 (2005). \n The heart of EOR’s claim is that the Illinois Appellate \nCourt declared the wrong rule of law and that we should cor‐\nrect it. EOR would like us to hold that the IEPA and the Board \nindeed lack jurisdiction to hold EOR accountable for dump‐\ning acidic waste into its wells. But if EOR believed that the \n\f6 No. 17‐3107 \n\nIllinois court got it wrong, its remedy was to ask the state su‐\npreme court, and thereafter the Supreme Court of the United \nStates, to correct the error. It filed the necessary petitions, but \nthose courts chose not to hear its case. That was the end of the \nline. There is no asterisk appended to the Rooker‐Feldman doc‐\ntrine saying that it evaporates once certiorari is denied. The \nstate court has adjudicated EOR’s claim, and that is that: it \nmay not come to the federal courthouse for Round Two. \n It may be more accurate, however, to read EOR’s com‐\nplaint and briefs in this court as acquiescing in the state \ncourt’s judgment, including the penalties it imposed, and ask‐\ning simply for a new ruling on the pure issues of law. In that \ncase, we do not face a Rooker‐Feldman problem, but EOR is no \nbetter off. The reason is simple: litigants cannot simply ignore \nlegal rulings from a competent state court and receive a do‐\nover in federal court. The full faith and credit statute, 28 \nU.S.C. § 1738, dictates the opposite rule: federal courts must \ngive the same preclusive effect to a state‐court judgment that \nit would receive under state law. See, e.g., Marrese v. American \nAcademy of Orthopaedic Surgeons, 470 U.S. 373, 380 (1985). \n Even if, as EOR insists, its federal‐law arguments are dif‐\nferent from the questions relating to the allocation of powers \namong the state agencies that were decided on the merits in \nthe prior litigation, that does not matter. Illinois applies claim \npreclusion when the original state court rendered a final judg‐\nment on the merits; the claims arise out of the same nucleus \nof fact; and the parties are identical. See Hudson v. City of Chi‐\ncago, 228 Ill. 2d 462, 467 (2008). This blocks parties not only \nfrom re‐litigating the issues the state court actually enter‐\ntained; it also bars litigation of any theory that could have \nbeen raised. And if that were not enough, EOR also faces issue \n\fNo. 17‐3107 7 \n\npreclusion. EOR raised its jurisdictional argument in the prior \nstate proceedings, and that issue was necessary to the Illinois \ncourt’s decision on the merits. Under those circumstances, \nEOR may not re‐litigate that issue. See Du Page Forklift Serv., \nInc. v. Material Handling Servs., Inc., 195 Ill. 2d 71, 77 (2001). \n We add for good measure that the Eleventh Amendment \nprohibits a federal court from ordering any relief against a \nstate agency based on state law. Pennhurst State Sch. & Hosp. \nv. Halderman, 465 U.S. 89, 100–01, 106 (1984). Although the en‐\nforcement of environmental laws is in part accomplished \nthrough a partnership between the states and the federal gov‐\nernment, federal law has nothing to say about which agency \na state is entitled to use in carrying out those tasks. That is \npurely a matter of state law. \n EOR also has asked this court for the opportunity to cure \nand refile its complaint. We deny its request. There is no way \nthat EOR could remedy the errors outlined above. Any \nchange in the suit that would remove these flaws would also \ndestroy EOR’s standing and the entire point of its lawsuit. If \nEOR intends to ignore the state court’s rulings and inject the \nsame kinds of hazardous waste acid into the same kinds of \nwells, then it will have to account for its actions before the \nstate authorities. If, on the other hand, EOR wants to inject \ninto its wells an entirely different acid that is not hazardous \nwaste under Illinois law, then it will have to take its chances \nin a future proceeding that is not at this time ripe for any fed‐\neral‐court action. \n We AFFIRM the judgment of the district court.\n[END_CASE]", "role": "user" } ]
8,443,848	EOR ENERGY LLC v. ILLINOIS ENVIRONMENTAL PROTECTION AGENCY	EOR Energy LLC v. Ill. Envtl. Prot. Agency	2019-01-16	No. 17-3107	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Flaum, Hamilton, Wood", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415274/", "author_raw": ""}]}	FLAUM	HAMILTON	WOOD	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/8443848/	Published	0	1	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: EOR ENERGY LLC v. ILLINOIS ENVIRONMENTAL PROTECTION AGENCY\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-16\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]", "role": "user" } ]
4,582,700	The CHURCH OF OUR LORD AND SAVIOR JESUS CHRIST, Plaintiff-Appellant, v. CITY OF MARKHAM, ILLINOIS, Defendant-Appellee.	Church of Our Lord & Savior Jesus Christ v. City of Markham	2019-01-17	18-1432	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Flaum, Easterbrook, Brennan", "parties": "", "opinions": [{"author": "BRENNAN, Circuit Judge", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-1432\nTHE CHURCH OF OUR LORD AND SAVIOR JESUS CHRIST,\n Plaintiff-Appellant,\n v.\n\nCITY OF MARKHAM, ILLINOIS\n Defendant-Appellee.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 1:15-cv-04079 — Ronald A. Guzmán, Judge.\n ____________________\n\n ARGUED OCTOBER 31, 2018 — DECIDED JANUARY 17, 2019\n ____________________\n\n Before FLAUM, EASTERBROOK, and BRENNAN, Circuit Judges.\n BRENNAN, Circuit Judge. In the City of Markham, Illinois,\n16018 South Spaulding Avenue (the “Property”) is home to\nThe Church of Our Lord and Savior Jesus Christ. We use the\nword “home” literally and figuratively: the church converted\na single-family residence on the Property into its house of\nworship. The Property’s location in a residential area, and the\nchurch’s ensuing zoning battles with the city, give rise to this\nlawsuit.\n\f2 No. 18-1432\n\n For more than 15 years, the church’s congregation has\ngathered at the Property for worship services, choir rehears-\nals, Bible studies, and the like. As the church grew, it remod-\neled the house to better accommodate its new purpose. This\nbrought the church into contact with the city’s administration\nthrough permit applications, property inspections, and\nsimilar zoning-related interactions.\n The parties dispute what the city knew about the church’s\nuse of the Property, and when, but such issues are largely\nirrelevant at this juncture. What matters (and is undisputed)\nis that the city sought an injunction in state court to halt the\nchurch’s operation on the Property without a conditional use\npermit, prompting the church to file an application for such a\npermit, which the city denied. All that occurred before this\ncase began.\n Denied a conditional use permit and facing a possible\ncourt order enjoining its operation, the church brought this\nlawsuit challenging the city’s zoning code under the Religious\nLand Use and Institutionalized Persons Act, 42 U.S.C.\n§ 2000cc et seq. (“RLUIPA”), and the Illinois Religious Free-\ndom Restoration Act, 775 ILL. COMP. STAT. 35/1 et seq. The\nchurch contends the city’s zoning code treats religious uses of\nproperty on unequal terms with analogous secular uses and\nunreasonably limits where religious organizations may locate\nin the city. The church also alleges the city’s insistence on a\nconditional use permit has imposed a substantial burden on\nits religious exercise.\n Two years into this litigation, the city argued (for the first\ntime) that the church’s legal claims were not ripe because the\nchurch never applied for variances from applicable parking\nregulations. The district court ordered the church to apply for\n\fNo. 18-1432 3\n\nsuch variances, and the city ultimately awarded them to the\nchurch, along with a conditional use permit. Afterward, the\ndistrict court granted the city summary judgment, ruling the\nchurch’s claims were not ripe when filed and rendered moot.\n We reverse. The district court focused on the church not\napplying for parking variances before the lawsuit. But that\nissue is related only tangentially to the church’s claims, which\nconcern zoning use classifications, not parking. The ripeness\nof the church’s claims does not hinge on pursuit of parking\nvariances that will not resolve them. Nor can a conditional use\npermit from the city moot the church’s claim that such a\npermit is not needed. The key question in this case is whether\noperating a church on the Property is a permitted or condi-\ntional use. The district court did not answer that question, but\nit is the necessary starting point for resolving the church’s\nlegal claims.\n I. Background\n A. The City’s Zoning Regulations\n The city employs a “cumulative” zoning scheme, desig-\nnating 11 categories of “use districts.” CITY OF MARKHAM, ILL.,\nZONING CODE § 156.015. A “use” refers to “[t]he purpose for\nwhich land or premises or a building or structure thereon is\ndesigned, arranged, or intended, or for which it is occupied\nor maintained, let or leased.” Zoning Code § 156.003. The\nvarious use districts are ranked from the highest, most restric-\ntive uses (R-1 One-Family Residential Districts) to the lowest,\nleast restrictive uses (L-3 Motor Freight Terminal Districts).\nCompare Zoning Code §§ 156.050–.056, with §§ 156.210–.224.\nThe scheme is “cumulative” because any use in a higher use\ndistrict is permitted in a lower use district (for example, all\n\f4 No. 18-1432\n\nuses permitted in the residential districts are permitted in the\ncommercial districts). Zoning Code § 156.146(A); see also 1\nPATRICIA E. SALKIN, AMERICAN LAW OF ZONING § 9:14 (5th ed.\nSupp. 2018).\n The zoning code also distinguishes between “permitted”\nuses (which do not require city approval) and “conditional”\nuses (which do). Compare Zoning Code § 156.051 (“The\nfollowing uses are permitted …”), with § 156.052 (“The\nfollowing [uses] may also be permitted upon approval of their\nlocation and development by the Plan Commission …”); see\nalso SALKIN, supra, at § 9:20. If a property owner’s intended use\nis not permitted as of right, the owner must apply to the city\nfor a conditional (or “special”) use permit. Zoning Code\n§ 156.317(A).1 The city’s planning commission evaluates the\napplication and may recommend approval only if “it finds\nthat the issuance of such special use permit is in the public\ninterest and not solely for the interest of the applicant.” Zon-\ning Code § 156.319(B). Final authority on conditional use\npermits rests with the city council, which may grant one only\nif “[t]he proposed use at the particular location requested is\neither necessary or desirable in order to provide a service or a\nfacility which is in the interest of public need and convenience\nand which will contribute to the general welfare of the com-\nmunity.” Zoning Code § 156.320(A).\n The Property is located in an R-3 One-Family Residential\nDistrict, which permits single-family dwellings and “[a]ll\nuses permitted in the R-2 district.” Zoning Code § 156.081.\n\n\n 1 The zoning code uses the terms “conditional use” and “special use”\ninterchangeably. E.g., Zoning Code §§ 156.315–.327. We employ the\nphrase “conditional use.”\n\fNo. 18-1432 5\n\nKeeping with the nesting doll framework of cumulative\nzoning, “[a]ll uses permitted in the R-1 district” are permitted\nin the R-2 districts, so all uses permitted in the R-1 districts\nare also permitted in the R-3 districts. Zoning Code\n§ 156.066(B).\n The zoning code does not expressly provide for any con-\nditional uses in the R-2 or R-3 districts. But it does list five\nconditional uses in the R-1 districts: (1) Schools, (2) “Churches\nand buildings usually associated with similar activities,”\n(3) Public parks, (4) Governmental and utility buildings, and\n(5) Hospitals. Zoning Code § 156.052. That is the only provi-\nsion in the zoning code that mentions “churches” as a condi-\ntional use, and no provision expressly identifies them as a\npermitted use. Other places of public assembly, meanwhile,\nare permitted uses as of right in other districts: “theaters” are\npermitted in C-1 Neighborhood Shopping Districts, Zoning\nCode § 156.146(D)(2), and “auditoriums” are permitted in C-2\nCommunity Shopping Districts. Zoning Code § 156.161(B)(2).\n The zoning code’s use classifications are distinct from its\nparking regulations. In “all districts,” whenever a building is\nto be erected or enlarged, the owner must present a plan for\noff-street parking to be approved by the city’s planning com-\nmission, regardless of whether the property owner’s use is\npermitted or conditional. Zoning Code §§ 156.246–.247. The\nrequired number of off-street parking spaces, however, varies\ndepending on property use. Zoning Code § 156.252.\n B. Renovation of the Property\n Reginald McCracken, the church’s pastor, purchased the\nProperty as a personal residence in 1985. In 2003, the congre-\ngation began meeting regularly at the Property, with ten to\n\f6 No. 18-1432\n\ntwenty people attending Sunday morning services. Today,\naverage attendance for a worship service is about thirty peo-\nple. In 2012, due to growing attendance and an increase in\nreligious activities, the church began a project to renovate the\ngarage into a chapel. The project involved installing a new\nroof, new windows, and pews, and cost approximately\n$40,000.2 Just months after the project’s completion, the city\nfiled suit against the church in Illinois state court, seeking to\nenjoin its operation on the Property without a conditional use\npermit. The city did not issue any citations or formal notices\nto the church beforehand.\n C. 2013 Application for a Conditional Use Permit\n When the state court denied the church’s motion to\ndismiss the city’s lawsuit in March 2013, the church requested\na continuance to apply for a conditional use permit from the\ncity. The state court granted the continuance, simultaneously\nentering an order restricting off-street parking around the\nProperty.3 The church filed its application, but it did not\nrequest any variances from the city’s parking regulations.\n After considering reports from a building inspector and an\nengineering consultant, the city’s planning commission voted\nto recommend that the city council deny the church’s condi-\ntional use application. A week later, the city council\nconcurred and denied the application.\n\n\n 2 The parties’ briefs address numerous disputes about previous per-\nmit applications and whether the church obtained the necessary approvals\nbefore starting its construction project in 2012. Because the merits of this\nappeal do not turn on such issues, we do not delve into them.\n 3The city’s lawsuit in state court has since been stayed indefinitely,\npending resolution of the church’s claims in this case.\n\fNo. 18-1432 7\n\n D. This Lawsuit\n Following the city’s denial of the conditional use permit,\nthe church filed this lawsuit in Illinois state court. When the\nchurch amended its complaint to add an RLUIPA claim, the\ncity removed the case to federal court. The city unsuccessfully\nmoved to dismiss the church’s claims, in both state and\nfederal court, but at the pleading stage never challenged their\nripeness.\n The church’s operative complaint contains four distinct\nclaims: (1) an RLUIPA “equal terms” claim under 42 U.S.C.\n§ 2000cc(b)(1); (2) an RLUIPA “unreasonable limitations”\nclaim under 42 U.S.C. § 2000cc(b)(3)(B); (3) an RLUIPA\n“substantial burden” claim under 42 U.S.C. § 2000cc(a)(1);\nand (4) a claim under Illinois’s Religious Freedom Restoration\nAct, 775 ILL. COMP. STAT. 35/25(d).4\n As to how religious facilities should be classified under\nthe zoning code, the church sees only two possible interpreta-\ntions, either of which renders the city liable. The church’s\npreferred interpretation is that a church is a permitted use of\nthe Property, such that the city’s insistence on a conditional\nuse permit was incorrect and constituted a substantial burden\non the church’s religious exercise. According to the church,\nthe only other possible interpretation is that a church is a\nconditional use in the R-3 districts, which would mean the\nzoning code provides no districts in which religious facilities\n\n\n 4 Because the last two claims are “materially identical,” World Outreach\n\nConference Ctr. v. City of Chicago, 591 F.3d 531, 533 (7th Cir. 2009), we refer\nto them together as the “substantial burden claims.”\n\f8 No. 18-1432\n\nare permitted as of right, thereby violating RLUIPA’s equal\nterms and unreasonable limitations provisions.\n The city reads the zoning code a third way: churches are a\nconditional use in the R-3 districts, but are permitted as of\nright in the city’s commercial and industrial districts\n(although those districts do not expressly list “churches” as a\npermitted use), so there cannot possibly be an equal terms or\nunreasonable limitations problem.\n After discovery closed, the church announced it intended\nto move for summary judgment on the permitted versus\nconditional use question. The district court asked how the city\nhoped to resolve the parties’ dispute, and the city’s attorney\nasserted the church’s claims were not ripe because the church\nhad never submitted a parking plan for the city to consider.\nSubsequently, the district court struck the parties’ cross\nmotions for summary judgment and ordered the church to\napply for a parking variance. The district court specified,\nhowever, that it was “not opining on whether Plaintiff needs,\nor the City should approve, any particular variations or\nconditional use permits Plaintiff may seek.”\n The church complied with the district court’s order by\nfiling an “Application for Variances” with the city, in which it\nexpressly stated it was not seeking zoning approval, based on\nits contention that a church is a permitted use not requiring\nconditional use approval. The church did request, however,\n“whatever variances the City believes are necessary to allow\nthe Church to continue with its existing off-street parking.”\nThe church also acknowledged it could not “afford to bring\nits existing parking into compliance with the strict letter of the\nCity’s Ordinance,” such that “variances for parking are\n\fNo. 18-1432 9\n\nrequired in order to accommodate and allow the congregation\nto continue its religious assembly on the property.”\n The city council responded by passing two ordinances,\nwhich purported to grant the church parking variances and a\nconditional use permit. But each required the church’s signa-\nture accepting all terms and conditions imposed. The church\nnever executed either ordinance.\n When the parties returned to the district court following\nthis process, the district court granted the city summary\njudgment on all counts. The court held that the church’s\nclaims were not ripe when filed because the church had not\napplied for parking variances, and the church’s claims for\nfuture damages became moot as a result of the conditional use\npermit. The district court ruled that any claim for past dam-\nages was “speculative” and failed because the claims had not\nripened until the church submitted its variance application.\nThe church appealed.\n II. Discussion\n We review a grant of summary judgment de novo. Vision\nChurch v. Vill. of Long Grove, 468 F.3d 975, 988 (7th Cir. 2006).\nDe novo review also applies to a district court’s ripeness and\nmootness determinations, although we accept its underlying\nfactual findings absent clear error. Freedom From Religion\nFound., Inc. v. Concord Cmty. Sch., 885 F.3d 1038, 1045 (7th Cir.\n2018) (mootness); Metropolitan Milwaukee Ass’n of Commerce v.\nMilwaukee Cty., 325 F.3d 879, 881 (7th Cir. 2003) (ripeness).\n The church’s operative complaint alleges the zoning code\ntreats religious uses of property on unequal terms with secu-\nlar uses, unreasonably limits where religious organizations\n\f10 No. 18-1432\n\nmay locate, and substantially burdens its religious exercise.5\nImportantly, the church’s equal terms and unreasonable\nlimitations claims hinge on the city’s interpretation of its\nzoning code rendering churches a conditional use in the R-3\ndistricts, rather than a permitted use as of right. If, however,\nthe church’s interpretation that it is a permitted use is correct,\nthen its equal terms and unreasonable limitations claims fall\naway, leaving only its substantial burden claims.\n Despite the significance of deciding whether a church is a\npermitted or conditional use of the Property, the district court\ndid not resolve that issue:\n I don’t care if they give you a permitted use\n recognition. If you submit a [parking] plan and\n they approve it and they let you continue, the\n case is over. You get to continue. They’re not\n stopping your religious freedom. I mean, so\n whether you get a permitted use finding from\n them doesn’t really make any difference to me.\n This approach—blurring the distinction between zoning\nuse and parking regulations—led to problems in the\nsummary judgment decision before us. The variances might\nrelieve the church from certain parking regulations, but they\nsay nothing about whether the church’s use of the Property is\npermissible. And a conditional use permit does not moot the\nchurch’s claim that it does not need one and is entitled to be\ntreated as a permitted use as of right. Accordingly, the district\ncourt’s summary judgment decision must be reversed.\n\n 5 The church pleads its RLUIPA equal terms and unreasonable limita-\n\ntions claims as facial attacks on the city’s zoning code. Its substantial\nburden claims appear to be a mix of as applied and facial challenges.\n\fNo. 18-1432 11\n\n A. Ripeness\n The district court granted summary judgment to the city\nbased primarily on the court’s conclusion that the church’s\nclaims were not ripe. The ripeness doctrine arises out of the\nConstitution’s case-or-controversy requirement, as claims\npremised on uncertain or contingent events present justicia-\nbility problems. Wisconsin Right of Life State Political Comm. v.\nBarland, 664 F.3d 139, 148 (7th Cir. 2011); see also 13B CHARLES\nALAN WRIGHT, ET AL., FEDERAL PRACTICE AND PROCEDURE\n§ 3532 (3d ed. Supp. 2018). The doctrine’s underlying\nobjective is to avoid premature adjudication and judicial\nentanglement in abstract disagreements. Pacific Gas & Elec. Co.\nv. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190,\n200–01 (1983). Because ripeness is “peculiarly a question of\ntiming,” a court determines ripeness as of the date of its\ndecision, not the date the lawsuit was filed. Buckley v. Valeo,\n424 U.S. 1, 114–118 (1976) (quoting Regional Rail Reorganization\nAct Cases, 419 U.S. 102, 140 (1974)).6\n As noted above, the district court appears to have\nconcluded the church’s claims were not ripe because the\nchurch failed to request a variance from the city’s off-street\nparking regulations before filing suit. In the district court’s\nview, “instead of formally seeking a variance from the City,\nthe Church sought to bypass the administrative process and,\nin essence, asked for a court-ordered variance.” 309 F. Supp.\n3d 545, 554 (N.D. Ill. 2018). But the district court’s focus on\n\n 6 To the extent the district court determined ripeness as of the date the\n\nchurch filed its complaint, rather than the date of that court’s decision, that\nwas erroneous. Blanchette v. Connecticut Gen. Ins. Corp., 419 U.S. 102, 140\n(1974); cf. 13B CHARLES ALAN WRIGHT, ET AL., FEDERAL PRACTICE AND\nPROCEDURE § 3532.7 (3d ed. Supp. 2018).\n\f12 No. 18-1432\n\nparking variances misapprehends that the church’s legal\nclaims are directed at the zoning code’s use classifications, not\nits parking requirements.\n For example, the church’s equal terms claim is premised\non the city’s interpretation of the zoning code rendering a\nchurch a conditional use in the R-3 districts. According to the\nchurch, the city’s reading would mean there is no district in\nwhich a church would be permitted as of right. The church\nalleges this violates RLUIPA7 because analogous secular uses,\nsuch as theaters, are permitted as of right in districts within\nthe city, but churches are always a conditional use subject to\ncity approval.8 Obtaining a parking variance would not\nrectify this alleged inequity: a theater would still be permitted\nas of right, while a church would remain a conditional use\nthat could be denied a permit or otherwise lose its permission\nto operate. The variance might alleviate burdens imposed by\nthe city’s parking regulations, but it does not address zoning\nuse classifications, which are the subject of this lawsuit.\n Nor would a parking variance solve the church’s unrea-\nsonable limitations claim. The church contends that by\ntreating churches as a conditional use everywhere, and\nproviding no district where they can locate as of right, the city\nhas implemented a land use regulation that “unreasonably\n\n 7The relevant subsection provides: “No government shall impose or\nimplement a land use regulation in a manner that treats a religious assem-\nbly or institution on less than equal terms with a nonreligious assembly or\ninstitution.” 42 U.S.C. 2000cc(b)(1).\n 8 In comparing zoning treatment, a court looks to whether the\nreligious and secular organizations are treated the same with respect to\naccepted, objective regulatory criteria. River of Life Kingdom Ministries v.\nVill. of Hazel Crest, 611 F.3d 367, 371 (7th Cir. 2010).\n\fNo. 18-1432 13\n\nlimits religious assemblies, institutions, or structures within a\njurisdiction.” 42 U.S.C. § 2000cc(b)(3)(B).9 Again, a parking\nvariance would not address the church’s central contention\nabout the legality of its use of the Property.\n Alternatively, the district court’s opinion could be\nconstrued to hold that a plaintiff must apply for a conditional\nuse permit (as opposed to a parking variance) before bringing\nan RLUIPA claim. But that framework does not work either.\nIt would address the legality of the church’s use, but not the\nchurch’s primary contention that operating a church is a\npermitted use. Nevertheless, the city directs us to the\nSupreme Court’s ripeness test for Takings Clause claims,\nwhich requires a plaintiff to obtain a “final decision” from a\nlocal government about how it may use its property before\nripening a claim. Williamson Cty. Reg’l Planning Comm’n v.\nHamilton Bank of Johnson City, 473 U.S. 172, 186 (1985). Some\ncircuit courts have extended Williamson County to RLUIPA\nclaims involving land use issues. See Guatay Christian Fellow-\nship v. Cty. of San Diego, 670 F.3d 957, 976 (9th Cir. 2011); Miles\nChristi Religious Order v. Twp. of Northville, 629 F.3d 533, 537–\n38 (6th Cir. 2010); Murphy v. New Milford Zoning Comm’n, 402\nF.3d 342, 352 (2d Cir. 2005).\n Although we have not addressed this specific question, we\nhave declined to apply Williamson County’s final decision test\nto other non-Takings Clause challenges to local zoning codes.\nTriple G Landfills v. Bd. of Comm’rs of Fountain Cty., 977 F.3d\n\n\n 9 Whether a limitation is reasonable or not must be determined “in\nlight of all the facts, including the actual availability of land and the eco-\nnomics of religious organizations.” Vision Church, 468 F.3d at 990 (quoting\n146 Cong. Rec. E1563 (Sept. 22, 2000) (statement of Rep. Canady)).\n\f14 No. 18-1432\n\n287, 289 (7th Cir. 1992) (final decision test does not apply to\nfacial attacks upon the validity of a zoning ordinance); see also\nForseth v. Vill. of Sussex, 199 F.3d 363, 370–71 (7th Cir. 2000)\n(applying Williamson County to substantive Due Process\nclaim, but not Equal Protection claim). Because the Supreme\nCourt based its holding in Williamson County on “the very\nnature of the inquiry required by the Just Compensation\nClause,” 473 U.S. at 190, extending it to different claims is\nsuspect. See Temple B’Nai Zion, Inc. v. City of Sunny Isles Beach,\n727 F.3d 1349, 1357 (11th Cir. 2013) (declining to apply\nWilliamson County to RLUIPA discrimination claim); Roman\nCatholic Bishop of Springfield v. City of Springfield, 724 F.3d 78,\n92 (1st Cir. 2013) (same); cf. Opulent Life Church v. City of Holly\nSprings, 697 F.3d 279, 287 n.7 (5th Cir. 2012) (noting the issue\nbut declining to take a position on whether Williamson County\napplies to RLUIPA and First Amendment claims).10\n But we need not resolve that question, because the\nchurch’s claims satisfy Williamson County’s final decision test,\neven if it does apply. The record demonstrates the city has\nmade a final decision regarding the church’s zoning use\nclassification. The city went so far as to file the state lawsuit\nseeking an injunction to require the church to either cease\n\n\n\n\n 10The Supreme Court will consider “[w]hether the Court should\nreconsider the portion of Williamson County Regional Planning Commission\nv. Hamilton Bank, 473 U.S. 172, 194–96 (1985), requiring property owners\nto exhaust state court remedies to ripen federal takings claims” in Knick v.\nTwp. of Scott, 862 F.3d 310 (3d Cir. 2017), cert. granted, 138 S. Ct. 1262 (2018)\n(No. 17-647) (argued Jan. 16, 2019).\n\fNo. 18-1432 15\n\noperations or obtain a conditional use permit.11 Unlike in\nMiles Christi, where the municipality remained undecided on\ninterpretation of relevant provisions of its zoning regulations,\n629 F.3d at 538, there is no ambiguity about the city’s\ninterpretation on the permitted versus conditional use\nquestion. Since 2012, the city has always taken the position\nthat churches are a conditional use in the R-3 districts, and\nnothing in the record or the parties’ arguments suggests the\ncity might reconsider that interpretation.\n Moreover, although the church did not formally request a\nparking variance before filing this lawsuit, the church did\napply for a conditional use permit, which the city denied.\nContrast that to the plaintiffs in Murphy, who did not\nchallenge the municipality’s interpretation of its zoning\nregulations or apply for any administrative relief whatsoever.\n402 F.3d at 345 (noting the plaintiffs filed suit two days after\nreceiving a letter from local zoning authorities). The church\ncould have petitioned the city to reconsider its decision, but\npursuit of such relief is not required to make the city’s\ndecision “final.” Williamson Cty., 473 F.3d at 192–93\n(“[T]he finality requirement is concerned with whether the\ninitial decisionmaker has arrived at a definitive position on\nthe issue that inflicts an actual, concrete injury … .”). Six years\ninto this zoning saga, the city’s actions establish that it has\n\n\n 11 It seems the city wishes to pursue its state court enforcement action\n\nbefore demanding the church apply for parking variances, while simulta-\nneously avoiding the church’s RLUIPA claims on the same basis. Cf. World\nOutreach, 591 F.3d at 537 (“[B]y bringing suit against World Outreach, the\nCity chose the forum in which it wanted the organization’s rights adjudi-\ncated; it can hardly be heard to criticize the organization for accepting that\nchoice.”).\n\f16 No. 18-1432\n\nfinally rejected the church’s permitted use interpretation.\nAdditional proceedings before the local zoning authorities\nwill not alter this case’s facts.\n In summary, parking variances do not address the central\ncontroversy between the parties about whether the zoning\ncode treats religious uses on unequal terms with secular uses,\nor places unreasonable limitations on religious exercise. And\nthe city made a final decision to reject the church’s contention\nthat it is a permitted use. The church’s claims are ripe, regard-\nless of whether Williamson County applies.\n B. Mootness\n The district court also ruled that the parking variances and\nconditional use permit mooted the church’s legal claims. A\ncase becomes moot “only when it is impossible for a court to\ngrant any effectual relief whatever to the prevailing party.”\nCampbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 669 (2016) (quoting\nKnox v. Serv. Emp. Int’l Union, Local 1000, 567 U.S. 298, 307\n(2012)). The party asserting mootness bears a “heavy burden\nof proof” in demonstrating it is “absolutely clear that the\nallegedly wrongful behavior could not reasonably be\nexpected to recur.” Freedom From Religion, 885 F.3d at 1051.\nThe district court’s mootness determination suffers from at\nleast two problems.\n First, as described above, neither a parking variance nor a\nconditional use permit resolves the parties’ dispute about\nwhether a church is a permitted or conditional use in the R-3\ndistricts. The district court’s mootness decision is analogous\nto the assertion that a defendant can moot a plaintiff’s claim\nsimply by offering to pay damages, which the Supreme Court\nrejected in Campbell-Ewald. 136 S. Ct. at 670. The church’s\n\fNo. 18-1432 17\n\ncomplaint sought a declaration that the city had violated the\nlaw, an injunction against the city enforcing the zoning code\nto prevent the church from using the Property, and an award\nof money damages. None of that has happened yet, so the case\nis not moot. See Chapman v. First Index, Inc., 796 F.3d 783, 786\n(7th Cir. 2015).12\n Second, no variance or conditional use permit ever went\ninto effect here. The city ordinance purporting to award the\nchurch parking variances states, “This Ordinance shall be\nsigned by the Church to signify its agreement to the terms\nhereof, and this Ordinance is conditional upon the Church\nexecuting the Ordinance.” Markham, Ill., Ordinance No.\n17-0-2168 (Mar. 1, 2017). Likewise, the ordinance purporting\nto grant the church a conditional use permit also required the\nchurch’s signature. Markham, Ill., Ordinance No. 17-0-2169\n(Mar. 1, 2017). But the church never executed either\nordinance. By their own terms, the ordinances are ineffective.\nThus, even if a variance or conditional use permit could moot\nthe church’s claims, neither is present here.\n C. Damages\n The district court also characterized the church’s damages\nclaims as “speculative” and lacking evidentiary support. The\nsummary judgment record contradicts that finding. The\nchurch presented a sworn declaration from its leader, Pastor\n\n\n 12 The availability of a conditional use permit remains relevant in this\ncase, however. For example, such relief from the city impacts the church’s\ndamages claim (which the church acknowledged in the district court), and\na conditional use permit may be the sort of reasonable accommodation to\nwhich the church is entitled on its liability case. We leave those issues for\nthe district court’s consideration on remand.\n\f18 No. 18-1432\n\nMcCracken, describing the injuries the city allegedly inflicted\nupon the church. He detailed how the city’s lawsuit to enjoin\nthe church’s operation had distracted the church’s leadership\nfrom its religious objectives and placed stress on the congre-\ngation. Certainly, the damages for such injuries are not as\neasily quantifiable as a business’s lost profits or a tort victim’s\nmedical bills. Yet, they are within the ambit of compensatory\ndamages, and the district court erred in dismissing them out\nof hand. See Memphis Cmty. School Dist. v. Stachura, 477 U.S.\n299, 307 (1986) (“[C]ompensatory damages may include not\nonly out-of-pocket loss and other monetary harms, but also\nsuch injuries as impairment of reputation, personal humilia-\ntion, and mental anguish and suffering.”) (internal quotation\nand ellipsis omitted).\n Even if the church lacked sufficient evidence to prove its\ndamages to a specific monetary sum, nominal damages\nremain an appropriate means of vindicating rights whose\ndeprivation is difficult to quantify. Guzman v. City of Chicago,\n689 F.3d 740, 748 (7th Cir. 2012); cf. Carey v. Piphus, 435 U.S.\n247, 266 (1978) (recognizing availability of nominal damages\nfor deprivations of civil rights that do not inflict financial\ninjury). The church’s alleged injuries are more than\n“speculative,” and its damages case should have survived\nsummary judgment.\n D. Standing Arguments\n Finally, the city attempts to defend the district court’s\ndecision on an independent ground—the church’s alleged\nlack of standing to pursue its equal terms and unreasonable\n\fNo. 18-1432 19\n\nlimitations claims.13 The city contends the church cannot\ncomplain that other places of public assembly are treated as\npermitted uses in the C-1 and C-2 districts because the church\ndoes not own property in those districts and has never\nattempted to move to them.\n The standing doctrine requires a plaintiff to demonstrate\nit “(1) suffered an injury in fact, (2) that is fairly traceable to\nthe challenged conduct of the defendant, and (3) that is likely\nto be redressed by a favorable judicial decision.” Spokeo, Inc.\nv. Robins, 136 S. Ct. 1540, 1547 (2016). The church meets each\nof those elements. The city’s state court lawsuit to enjoin the\nchurch’s operation is sufficient to demonstrate an injury in\nfact. See Primera Iglesia Bautista Hispana of Boca Raton, Inc. v.\nBroward Cty., 450 F.3d 1295, 1304 (11th Cir. 2006) (municipal\nzoning restriction on use of property constituted an “actual\ninjury”). That injury is directly traceable to the city’s interpre-\ntation of its zoning code and could be redressed by a favorable\njudicial determination.\n The city points to Midrash Sephardi, Inc. v. Town of Surfside,\n366 F.3d 1214 (11th Cir. 2004), to support its argument that an\nRLUIPA plaintiff lacks “standing” to challenge unequal terms\nin a zoning code unless it is presently located in, or has\nconcrete plans to move to, the zoning district where the\ncomparator secular organization is allegedly provided more\nfavorable treatment. Id. at 1224 n.9. Similar to this case, in\nMidrash a municipality attempted to enjoin the operation of\n\n\n 13 Although the city did not challenge the church’s standing to raise\nits unreasonable limitations claim in the district court, challenges to a\nplaintiff’s Article III standing cannot be waived or forfeited. Freedom From\nReligion Found., Inc. v. Nicholson, 536 F.3d 730, 737 (7th Cir. 2008).\n\f20 No. 18-1432\n\ntwo synagogues, which responded by alleging the\nmunicipality’s zoning code violated RLUIPA. Id. at 1220–22.\nThe Eleventh Circuit determined that the synagogues had\nstanding to pursue their claims of a legal right to remain in\ntheir current locations, although they lacked standing to\npursue other discrimination claims regarding the zoning\ntreatment of religious facilities in districts where they were\nnot located. Id. at 1224 & n.9.\n Like the synagogues in Midrash, the church’s legal claims\nare premised on its request to continue to worship at its\npresent site. The church is not an outsider with no stake in the\ncity’s zoning scheme. Although some of the church’s legal\ntheories allege the zoning code nowhere permits churches as\na matter of right, at bottom the church challenges the city’s\ntreatment of churches as conditional uses in the R-3 districts—\nsuch as where the Property is located. In other words, the\nchurch challenges its zoning use categorization at the\nProperty, even as the church argues the zoning code as a\nwhole discriminates against religious uses.\n Such an argument is cognizable, as courts assess the\nentirety of a zoning scheme when evaluating a property\nowner’s RLUIPA claim. See Eagle Cove Camp & Conf. Ctr. v.\nTown of Woodboro, 734 F.3d 673, 680 (7th Cir. 2013) (RLUIPA\nnot violated because plaintiff could locate Bible camp in other\nzoning districts within the municipality); Vision Church, 468\nF.3d at 989 (RLUIPA “exclusion” claim triggered only where\nmunicipality applies “complete and total exclusion of activity\nor expression protected by the First Amendment”).\n In short, the church has sustained a concrete injury result-\ning from the city’s interpretation of which zoning uses are\npermitted in the R-3 districts, and that injury is sufficient to\n\fNo. 18-1432 21\n\ngive the church standing for Article III purposes. The church\nneed not move to another zoning district to acquire standing\nto pursue its claim that it is entitled to stay put.\n III. Conclusion\n For the foregoing reasons, we REVERSE the district court’s\ngrant of summary judgment in favor of the city and REMAND\nfor further proceedings. We encourage the district court to\nbegin by addressing whether operating a church on the\nProperty is a permitted or conditional use under the zoning\ncode.\n Our decision expresses no opinion on the substantive\nmerits of any of the church’s legal claims or on the proper\ninterpretation of the city’s zoning code. The district court did\nnot reach those issues, and we do not decide them\nfor the first time on appeal. Circuit Rule 36 shall apply on\nremand.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4359953/", "author_raw": "BRENNAN, Circuit Judge"}]}	FLAUM	EASTERBROOK	BRENNAN	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4582700/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: The CHURCH OF OUR LORD AND SAVIOR JESUS CHRIST, Plaintiff-Appellant, v. CITY OF MARKHAM, ILLINOIS, Defendant-Appellee.\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-17\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-1432\nTHE CHURCH OF OUR LORD AND SAVIOR JESUS CHRIST,\n Plaintiff-Appellant,\n v.\n\nCITY OF MARKHAM, ILLINOIS\n Defendant-Appellee.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 1:15-cv-04079 — Ronald A. Guzmán, Judge.\n ____________________\n\n ARGUED OCTOBER 31, 2018 — DECIDED JANUARY 17, 2019\n ____________________\n\n Before FLAUM, EASTERBROOK, and BRENNAN, Circuit Judges.\n BRENNAN, Circuit Judge. In the City of Markham, Illinois,\n16018 South Spaulding Avenue (the “Property”) is home to\nThe Church of Our Lord and Savior Jesus Christ. We use the\nword “home” literally and figuratively: the church converted\na single-family residence on the Property into its house of\nworship. The Property’s location in a residential area, and the\nchurch’s ensuing zoning battles with the city, give rise to this\nlawsuit.\n\f2 No. 18-1432\n\n For more than 15 years, the church’s congregation has\ngathered at the Property for worship services, choir rehears-\nals, Bible studies, and the like. As the church grew, it remod-\neled the house to better accommodate its new purpose. This\nbrought the church into contact with the city’s administration\nthrough permit applications, property inspections, and\nsimilar zoning-related interactions.\n The parties dispute what the city knew about the church’s\nuse of the Property, and when, but such issues are largely\nirrelevant at this juncture. What matters (and is undisputed)\nis that the city sought an injunction in state court to halt the\nchurch’s operation on the Property without a conditional use\npermit, prompting the church to file an application for such a\npermit, which the city denied. All that occurred before this\ncase began.\n Denied a conditional use permit and facing a possible\ncourt order enjoining its operation, the church brought this\nlawsuit challenging the city’s zoning code under the Religious\nLand Use and Institutionalized Persons Act, 42 U.S.C.\n§ 2000cc et seq. (“RLUIPA”), and the Illinois Religious Free-\ndom Restoration Act, 775 ILL. COMP. STAT. 35/1 et seq. The\nchurch contends the city’s zoning code treats religious uses of\nproperty on unequal terms with analogous secular uses and\nunreasonably limits where religious organizations may locate\nin the city. The church also alleges the city’s insistence on a\nconditional use permit has imposed a substantial burden on\nits religious exercise.\n Two years into this litigation, the city argued (for the first\ntime) that the church’s legal claims were not ripe because the\nchurch never applied for variances from applicable parking\nregulations. The district court ordered the church to apply for\n\fNo. 18-1432 3\n\nsuch variances, and the city ultimately awarded them to the\nchurch, along with a conditional use permit. Afterward, the\ndistrict court granted the city summary judgment, ruling the\nchurch’s claims were not ripe when filed and rendered moot.\n We reverse. The district court focused on the church not\napplying for parking variances before the lawsuit. But that\nissue is related only tangentially to the church’s claims, which\nconcern zoning use classifications, not parking. The ripeness\nof the church’s claims does not hinge on pursuit of parking\nvariances that will not resolve them. Nor can a conditional use\npermit from the city moot the church’s claim that such a\npermit is not needed. The key question in this case is whether\noperating a church on the Property is a permitted or condi-\ntional use. The district court did not answer that question, but\nit is the necessary starting point for resolving the church’s\nlegal claims.\n I. Background\n A. The City’s Zoning Regulations\n The city employs a “cumulative” zoning scheme, desig-\nnating 11 categories of “use districts.” CITY OF MARKHAM, ILL.,\nZONING CODE § 156.015. A “use” refers to “[t]he purpose for\nwhich land or premises or a building or structure thereon is\ndesigned, arranged, or intended, or for which it is occupied\nor maintained, let or leased.” Zoning Code § 156.003. The\nvarious use districts are ranked from the highest, most restric-\ntive uses (R-1 One-Family Residential Districts) to the lowest,\nleast restrictive uses (L-3 Motor Freight Terminal Districts).\nCompare Zoning Code §§ 156.050–.056, with §§ 156.210–.224.\nThe scheme is “cumulative” because any use in a higher use\ndistrict is permitted in a lower use district (for example, all\n\f4 No. 18-1432\n\nuses permitted in the residential districts are permitted in the\ncommercial districts). Zoning Code § 156.146(A); see also 1\nPATRICIA E. SALKIN, AMERICAN LAW OF ZONING § 9:14 (5th ed.\nSupp. 2018).\n The zoning code also distinguishes between “permitted”\nuses (which do not require city approval) and “conditional”\nuses (which do). Compare Zoning Code § 156.051 (“The\nfollowing uses are permitted …”), with § 156.052 (“The\nfollowing [uses] may also be permitted upon approval of their\nlocation and development by the Plan Commission …”); see\nalso SALKIN, supra, at § 9:20. If a property owner’s intended use\nis not permitted as of right, the owner must apply to the city\nfor a conditional (or “special”) use permit. Zoning Code\n§ 156.317(A).1 The city’s planning commission evaluates the\napplication and may recommend approval only if “it finds\nthat the issuance of such special use permit is in the public\ninterest and not solely for the interest of the applicant.” Zon-\ning Code § 156.319(B). Final authority on conditional use\npermits rests with the city council, which may grant one only\nif “[t]he proposed use at the particular location requested is\neither necessary or desirable in order to provide a service or a\nfacility which is in the interest of public need and convenience\nand which will contribute to the general welfare of the com-\nmunity.” Zoning Code § 156.320(A).\n The Property is located in an R-3 One-Family Residential\nDistrict, which permits single-family dwellings and “[a]ll\nuses permitted in the R-2 district.” Zoning Code § 156.081.\n\n\n 1 The zoning code uses the terms “conditional use” and “special use”\ninterchangeably. E.g., Zoning Code §§ 156.315–.327. We employ the\nphrase “conditional use.”\n\fNo. 18-1432 5\n\nKeeping with the nesting doll framework of cumulative\nzoning, “[a]ll uses permitted in the R-1 district” are permitted\nin the R-2 districts, so all uses permitted in the R-1 districts\nare also permitted in the R-3 districts. Zoning Code\n§ 156.066(B).\n The zoning code does not expressly provide for any con-\nditional uses in the R-2 or R-3 districts. But it does list five\nconditional uses in the R-1 districts: (1) Schools, (2) “Churches\nand buildings usually associated with similar activities,”\n(3) Public parks, (4) Governmental and utility buildings, and\n(5) Hospitals. Zoning Code § 156.052. That is the only provi-\nsion in the zoning code that mentions “churches” as a condi-\ntional use, and no provision expressly identifies them as a\npermitted use. Other places of public assembly, meanwhile,\nare permitted uses as of right in other districts: “theaters” are\npermitted in C-1 Neighborhood Shopping Districts, Zoning\nCode § 156.146(D)(2), and “auditoriums” are permitted in C-2\nCommunity Shopping Districts. Zoning Code § 156.161(B)(2).\n The zoning code’s use classifications are distinct from its\nparking regulations. In “all districts,” whenever a building is\nto be erected or enlarged, the owner must present a plan for\noff-street parking to be approved by the city’s planning com-\nmission, regardless of whether the property owner’s use is\npermitted or conditional. Zoning Code §§ 156.246–.247. The\nrequired number of off-street parking spaces, however, varies\ndepending on property use. Zoning Code § 156.252.\n B. Renovation of the Property\n Reginald McCracken, the church’s pastor, purchased the\nProperty as a personal residence in 1985. In 2003, the congre-\ngation began meeting regularly at the Property, with ten to\n\f6 No. 18-1432\n\ntwenty people attending Sunday morning services. Today,\naverage attendance for a worship service is about thirty peo-\nple. In 2012, due to growing attendance and an increase in\nreligious activities, the church began a project to renovate the\ngarage into a chapel. The project involved installing a new\nroof, new windows, and pews, and cost approximately\n$40,000.2 Just months after the project’s completion, the city\nfiled suit against the church in Illinois state court, seeking to\nenjoin its operation on the Property without a conditional use\npermit. The city did not issue any citations or formal notices\nto the church beforehand.\n C. 2013 Application for a Conditional Use Permit\n When the state court denied the church’s motion to\ndismiss the city’s lawsuit in March 2013, the church requested\na continuance to apply for a conditional use permit from the\ncity. The state court granted the continuance, simultaneously\nentering an order restricting off-street parking around the\nProperty.3 The church filed its application, but it did not\nrequest any variances from the city’s parking regulations.\n After considering reports from a building inspector and an\nengineering consultant, the city’s planning commission voted\nto recommend that the city council deny the church’s condi-\ntional use application. A week later, the city council\nconcurred and denied the application.\n\n\n 2 The parties’ briefs address numerous disputes about previous per-\nmit applications and whether the church obtained the necessary approvals\nbefore starting its construction project in 2012. Because the merits of this\nappeal do not turn on such issues, we do not delve into them.\n 3The city’s lawsuit in state court has since been stayed indefinitely,\npending resolution of the church’s claims in this case.\n\fNo. 18-1432 7\n\n D. This Lawsuit\n Following the city’s denial of the conditional use permit,\nthe church filed this lawsuit in Illinois state court. When the\nchurch amended its complaint to add an RLUIPA claim, the\ncity removed the case to federal court. The city unsuccessfully\nmoved to dismiss the church’s claims, in both state and\nfederal court, but at the pleading stage never challenged their\nripeness.\n The church’s operative complaint contains four distinct\nclaims: (1) an RLUIPA “equal terms” claim under 42 U.S.C.\n§ 2000cc(b)(1); (2) an RLUIPA “unreasonable limitations”\nclaim under 42 U.S.C. § 2000cc(b)(3)(B); (3) an RLUIPA\n“substantial burden” claim under 42 U.S.C. § 2000cc(a)(1);\nand (4) a claim under Illinois’s Religious Freedom Restoration\nAct, 775 ILL. COMP. STAT. 35/25(d).4\n As to how religious facilities should be classified under\nthe zoning code, the church sees only two possible interpreta-\ntions, either of which renders the city liable. The church’s\npreferred interpretation is that a church is a permitted use of\nthe Property, such that the city’s insistence on a conditional\nuse permit was incorrect and constituted a substantial burden\non the church’s religious exercise. According to the church,\nthe only other possible interpretation is that a church is a\nconditional use in the R-3 districts, which would mean the\nzoning code provides no districts in which religious facilities\n\n\n 4 Because the last two claims are “materially identical,” World Outreach\n\nConference Ctr. v. City of Chicago, 591 F.3d 531, 533 (7th Cir. 2009), we refer\nto them together as the “substantial burden claims.”\n\f8 No. 18-1432\n\nare permitted as of right, thereby violating RLUIPA’s equal\nterms and unreasonable limitations provisions.\n The city reads the zoning code a third way: churches are a\nconditional use in the R-3 districts, but are permitted as of\nright in the city’s commercial and industrial districts\n(although those districts do not expressly list “churches” as a\npermitted use), so there cannot possibly be an equal terms or\nunreasonable limitations problem.\n After discovery closed, the church announced it intended\nto move for summary judgment on the permitted versus\nconditional use question. The district court asked how the city\nhoped to resolve the parties’ dispute, and the city’s attorney\nasserted the church’s claims were not ripe because the church\nhad never submitted a parking plan for the city to consider.\nSubsequently, the district court struck the parties’ cross\nmotions for summary judgment and ordered the church to\napply for a parking variance. The district court specified,\nhowever, that it was “not opining on whether Plaintiff needs,\nor the City should approve, any particular variations or\nconditional use permits Plaintiff may seek.”\n The church complied with the district court’s order by\nfiling an “Application for Variances” with the city, in which it\nexpressly stated it was not seeking zoning approval, based on\nits contention that a church is a permitted use not requiring\nconditional use approval. The church did request, however,\n“whatever variances the City believes are necessary to allow\nthe Church to continue with its existing off-street parking.”\nThe church also acknowledged it could not “afford to bring\nits existing parking into compliance with the strict letter of the\nCity’s Ordinance,” such that “variances for parking are\n\fNo. 18-1432 9\n\nrequired in order to accommodate and allow the congregation\nto continue its religious assembly on the property.”\n The city council responded by passing two ordinances,\nwhich purported to grant the church parking variances and a\nconditional use permit. But each required the church’s signa-\nture accepting all terms and conditions imposed. The church\nnever executed either ordinance.\n When the parties returned to the district court following\nthis process, the district court granted the city summary\njudgment on all counts. The court held that the church’s\nclaims were not ripe when filed because the church had not\napplied for parking variances, and the church’s claims for\nfuture damages became moot as a result of the conditional use\npermit. The district court ruled that any claim for past dam-\nages was “speculative” and failed because the claims had not\nripened until the church submitted its variance application.\nThe church appealed.\n II. Discussion\n We review a grant of summary judgment de novo. Vision\nChurch v. Vill. of Long Grove, 468 F.3d 975, 988 (7th Cir. 2006).\nDe novo review also applies to a district court’s ripeness and\nmootness determinations, although we accept its underlying\nfactual findings absent clear error. Freedom From Religion\nFound., Inc. v. Concord Cmty. Sch., 885 F.3d 1038, 1045 (7th Cir.\n2018) (mootness); Metropolitan Milwaukee Ass’n of Commerce v.\nMilwaukee Cty., 325 F.3d 879, 881 (7th Cir. 2003) (ripeness).\n The church’s operative complaint alleges the zoning code\ntreats religious uses of property on unequal terms with secu-\nlar uses, unreasonably limits where religious organizations\n\f10 No. 18-1432\n\nmay locate, and substantially burdens its religious exercise.5\nImportantly, the church’s equal terms and unreasonable\nlimitations claims hinge on the city’s interpretation of its\nzoning code rendering churches a conditional use in the R-3\ndistricts, rather than a permitted use as of right. If, however,\nthe church’s interpretation that it is a permitted use is correct,\nthen its equal terms and unreasonable limitations claims fall\naway, leaving only its substantial burden claims.\n Despite the significance of deciding whether a church is a\npermitted or conditional use of the Property, the district court\ndid not resolve that issue:\n I don’t care if they give you a permitted use\n recognition. If you submit a [parking] plan and\n they approve it and they let you continue, the\n case is over. You get to continue. They’re not\n stopping your religious freedom. I mean, so\n whether you get a permitted use finding from\n them doesn’t really make any difference to me.\n This approach—blurring the distinction between zoning\nuse and parking regulations—led to problems in the\nsummary judgment decision before us. The variances might\nrelieve the church from certain parking regulations, but they\nsay nothing about whether the church’s use of the Property is\npermissible. And a conditional use permit does not moot the\nchurch’s claim that it does not need one and is entitled to be\ntreated as a permitted use as of right. Accordingly, the district\ncourt’s summary judgment decision must be reversed.\n\n 5 The church pleads its RLUIPA equal terms and unreasonable limita-\n\ntions claims as facial attacks on the city’s zoning code. Its substantial\nburden claims appear to be a mix of as applied and facial challenges.\n\fNo. 18-1432 11\n\n A. Ripeness\n The district court granted summary judgment to the city\nbased primarily on the court’s conclusion that the church’s\nclaims were not ripe. The ripeness doctrine arises out of the\nConstitution’s case-or-controversy requirement, as claims\npremised on uncertain or contingent events present justicia-\nbility problems. Wisconsin Right of Life State Political Comm. v.\nBarland, 664 F.3d 139, 148 (7th Cir. 2011); see also 13B CHARLES\nALAN WRIGHT, ET AL., FEDERAL PRACTICE AND PROCEDURE\n§ 3532 (3d ed. Supp. 2018). The doctrine’s underlying\nobjective is to avoid premature adjudication and judicial\nentanglement in abstract disagreements. Pacific Gas & Elec. Co.\nv. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190,\n200–01 (1983). Because ripeness is “peculiarly a question of\ntiming,” a court determines ripeness as of the date of its\ndecision, not the date the lawsuit was filed. Buckley v. Valeo,\n424 U.S. 1, 114–118 (1976) (quoting Regional Rail Reorganization\nAct Cases, 419 U.S. 102, 140 (1974)).6\n As noted above, the district court appears to have\nconcluded the church’s claims were not ripe because the\nchurch failed to request a variance from the city’s off-street\nparking regulations before filing suit. In the district court’s\nview, “instead of formally seeking a variance from the City,\nthe Church sought to bypass the administrative process and,\nin essence, asked for a court-ordered variance.” 309 F. Supp.\n3d 545, 554 (N.D. Ill. 2018). But the district court’s focus on\n\n 6 To the extent the district court determined ripeness as of the date the\n\nchurch filed its complaint, rather than the date of that court’s decision, that\nwas erroneous. Blanchette v. Connecticut Gen. Ins. Corp., 419 U.S. 102, 140\n(1974); cf. 13B CHARLES ALAN WRIGHT, ET AL., FEDERAL PRACTICE AND\nPROCEDURE § 3532.7 (3d ed. Supp. 2018).\n\f12 No. 18-1432\n\nparking variances misapprehends that the church’s legal\nclaims are directed at the zoning code’s use classifications, not\nits parking requirements.\n For example, the church’s equal terms claim is premised\non the city’s interpretation of the zoning code rendering a\nchurch a conditional use in the R-3 districts. According to the\nchurch, the city’s reading would mean there is no district in\nwhich a church would be permitted as of right. The church\nalleges this violates RLUIPA7 because analogous secular uses,\nsuch as theaters, are permitted as of right in districts within\nthe city, but churches are always a conditional use subject to\ncity approval.8 Obtaining a parking variance would not\nrectify this alleged inequity: a theater would still be permitted\nas of right, while a church would remain a conditional use\nthat could be denied a permit or otherwise lose its permission\nto operate. The variance might alleviate burdens imposed by\nthe city’s parking regulations, but it does not address zoning\nuse classifications, which are the subject of this lawsuit.\n Nor would a parking variance solve the church’s unrea-\nsonable limitations claim. The church contends that by\ntreating churches as a conditional use everywhere, and\nproviding no district where they can locate as of right, the city\nhas implemented a land use regulation that “unreasonably\n\n 7The relevant subsection provides: “No government shall impose or\nimplement a land use regulation in a manner that treats a religious assem-\nbly or institution on less than equal terms with a nonreligious assembly or\ninstitution.” 42 U.S.C. 2000cc(b)(1).\n 8 In comparing zoning treatment, a court looks to whether the\nreligious and secular organizations are treated the same with respect to\naccepted, objective regulatory criteria. River of Life Kingdom Ministries v.\nVill. of Hazel Crest, 611 F.3d 367, 371 (7th Cir. 2010).\n\fNo. 18-1432 13\n\nlimits religious assemblies, institutions, or structures within a\njurisdiction.” 42 U.S.C. § 2000cc(b)(3)(B).9 Again, a parking\nvariance would not address the church’s central contention\nabout the legality of its use of the Property.\n Alternatively, the district court’s opinion could be\nconstrued to hold that a plaintiff must apply for a conditional\nuse permit (as opposed to a parking variance) before bringing\nan RLUIPA claim. But that framework does not work either.\nIt would address the legality of the church’s use, but not the\nchurch’s primary contention that operating a church is a\npermitted use. Nevertheless, the city directs us to the\nSupreme Court’s ripeness test for Takings Clause claims,\nwhich requires a plaintiff to obtain a “final decision” from a\nlocal government about how it may use its property before\nripening a claim. Williamson Cty. Reg’l Planning Comm’n v.\nHamilton Bank of Johnson City, 473 U.S. 172, 186 (1985). Some\ncircuit courts have extended Williamson County to RLUIPA\nclaims involving land use issues. See Guatay Christian Fellow-\nship v. Cty. of San Diego, 670 F.3d 957, 976 (9th Cir. 2011); Miles\nChristi Religious Order v. Twp. of Northville, 629 F.3d 533, 537–\n38 (6th Cir. 2010); Murphy v. New Milford Zoning Comm’n, 402\nF.3d 342, 352 (2d Cir. 2005).\n Although we have not addressed this specific question, we\nhave declined to apply Williamson County’s final decision test\nto other non-Takings Clause challenges to local zoning codes.\nTriple G Landfills v. Bd. of Comm’rs of Fountain Cty., 977 F.3d\n\n\n 9 Whether a limitation is reasonable or not must be determined “in\nlight of all the facts, including the actual availability of land and the eco-\nnomics of religious organizations.” Vision Church, 468 F.3d at 990 (quoting\n146 Cong. Rec. E1563 (Sept. 22, 2000) (statement of Rep. Canady)).\n\f14 No. 18-1432\n\n287, 289 (7th Cir. 1992) (final decision test does not apply to\nfacial attacks upon the validity of a zoning ordinance); see also\nForseth v. Vill. of Sussex, 199 F.3d 363, 370–71 (7th Cir. 2000)\n(applying Williamson County to substantive Due Process\nclaim, but not Equal Protection claim). Because the Supreme\nCourt based its holding in Williamson County on “the very\nnature of the inquiry required by the Just Compensation\nClause,” 473 U.S. at 190, extending it to different claims is\nsuspect. See Temple B’Nai Zion, Inc. v. City of Sunny Isles Beach,\n727 F.3d 1349, 1357 (11th Cir. 2013) (declining to apply\nWilliamson County to RLUIPA discrimination claim); Roman\nCatholic Bishop of Springfield v. City of Springfield, 724 F.3d 78,\n92 (1st Cir. 2013) (same); cf. Opulent Life Church v. City of Holly\nSprings, 697 F.3d 279, 287 n.7 (5th Cir. 2012) (noting the issue\nbut declining to take a position on whether Williamson County\napplies to RLUIPA and First Amendment claims).10\n But we need not resolve that question, because the\nchurch’s claims satisfy Williamson County’s final decision test,\neven if it does apply. The record demonstrates the city has\nmade a final decision regarding the church’s zoning use\nclassification. The city went so far as to file the state lawsuit\nseeking an injunction to require the church to either cease\n\n\n\n\n 10The Supreme Court will consider “[w]hether the Court should\nreconsider the portion of Williamson County Regional Planning Commission\nv. Hamilton Bank, 473 U.S. 172, 194–96 (1985), requiring property owners\nto exhaust state court remedies to ripen federal takings claims” in Knick v.\nTwp. of Scott, 862 F.3d 310 (3d Cir. 2017), cert. granted, 138 S. Ct. 1262 (2018)\n(No. 17-647) (argued Jan. 16, 2019).\n\fNo. 18-1432 15\n\noperations or obtain a conditional use permit.11 Unlike in\nMiles Christi, where the municipality remained undecided on\ninterpretation of relevant provisions of its zoning regulations,\n629 F.3d at 538, there is no ambiguity about the city’s\ninterpretation on the permitted versus conditional use\nquestion. Since 2012, the city has always taken the position\nthat churches are a conditional use in the R-3 districts, and\nnothing in the record or the parties’ arguments suggests the\ncity might reconsider that interpretation.\n Moreover, although the church did not formally request a\nparking variance before filing this lawsuit, the church did\napply for a conditional use permit, which the city denied.\nContrast that to the plaintiffs in Murphy, who did not\nchallenge the municipality’s interpretation of its zoning\nregulations or apply for any administrative relief whatsoever.\n402 F.3d at 345 (noting the plaintiffs filed suit two days after\nreceiving a letter from local zoning authorities). The church\ncould have petitioned the city to reconsider its decision, but\npursuit of such relief is not required to make the city’s\ndecision “final.” Williamson Cty., 473 F.3d at 192–93\n(“[T]he finality requirement is concerned with whether the\ninitial decisionmaker has arrived at a definitive position on\nthe issue that inflicts an actual, concrete injury … .”). Six years\ninto this zoning saga, the city’s actions establish that it has\n\n\n 11 It seems the city wishes to pursue its state court enforcement action\n\nbefore demanding the church apply for parking variances, while simulta-\nneously avoiding the church’s RLUIPA claims on the same basis. Cf. World\nOutreach, 591 F.3d at 537 (“[B]y bringing suit against World Outreach, the\nCity chose the forum in which it wanted the organization’s rights adjudi-\ncated; it can hardly be heard to criticize the organization for accepting that\nchoice.”).\n\f16 No. 18-1432\n\nfinally rejected the church’s permitted use interpretation.\nAdditional proceedings before the local zoning authorities\nwill not alter this case’s facts.\n In summary, parking variances do not address the central\ncontroversy between the parties about whether the zoning\ncode treats religious uses on unequal terms with secular uses,\nor places unreasonable limitations on religious exercise. And\nthe city made a final decision to reject the church’s contention\nthat it is a permitted use. The church’s claims are ripe, regard-\nless of whether Williamson County applies.\n B. Mootness\n The district court also ruled that the parking variances and\nconditional use permit mooted the church’s legal claims. A\ncase becomes moot “only when it is impossible for a court to\ngrant any effectual relief whatever to the prevailing party.”\nCampbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 669 (2016) (quoting\nKnox v. Serv. Emp. Int’l Union, Local 1000, 567 U.S. 298, 307\n(2012)). The party asserting mootness bears a “heavy burden\nof proof” in demonstrating it is “absolutely clear that the\nallegedly wrongful behavior could not reasonably be\nexpected to recur.” Freedom From Religion, 885 F.3d at 1051.\nThe district court’s mootness determination suffers from at\nleast two problems.\n First, as described above, neither a parking variance nor a\nconditional use permit resolves the parties’ dispute about\nwhether a church is a permitted or conditional use in the R-3\ndistricts. The district court’s mootness decision is analogous\nto the assertion that a defendant can moot a plaintiff’s claim\nsimply by offering to pay damages, which the Supreme Court\nrejected in Campbell-Ewald. 136 S. Ct. at 670. The church’s\n\fNo. 18-1432 17\n\ncomplaint sought a declaration that the city had violated the\nlaw, an injunction against the city enforcing the zoning code\nto prevent the church from using the Property, and an award\nof money damages. None of that has happened yet, so the case\nis not moot. See Chapman v. First Index, Inc., 796 F.3d 783, 786\n(7th Cir. 2015).12\n Second, no variance or conditional use permit ever went\ninto effect here. The city ordinance purporting to award the\nchurch parking variances states, “This Ordinance shall be\nsigned by the Church to signify its agreement to the terms\nhereof, and this Ordinance is conditional upon the Church\nexecuting the Ordinance.” Markham, Ill., Ordinance No.\n17-0-2168 (Mar. 1, 2017). Likewise, the ordinance purporting\nto grant the church a conditional use permit also required the\nchurch’s signature. Markham, Ill., Ordinance No. 17-0-2169\n(Mar. 1, 2017). But the church never executed either\nordinance. By their own terms, the ordinances are ineffective.\nThus, even if a variance or conditional use permit could moot\nthe church’s claims, neither is present here.\n C. Damages\n The district court also characterized the church’s damages\nclaims as “speculative” and lacking evidentiary support. The\nsummary judgment record contradicts that finding. The\nchurch presented a sworn declaration from its leader, Pastor\n\n\n 12 The availability of a conditional use permit remains relevant in this\ncase, however. For example, such relief from the city impacts the church’s\ndamages claim (which the church acknowledged in the district court), and\na conditional use permit may be the sort of reasonable accommodation to\nwhich the church is entitled on its liability case. We leave those issues for\nthe district court’s consideration on remand.\n\f18 No. 18-1432\n\nMcCracken, describing the injuries the city allegedly inflicted\nupon the church. He detailed how the city’s lawsuit to enjoin\nthe church’s operation had distracted the church’s leadership\nfrom its religious objectives and placed stress on the congre-\ngation. Certainly, the damages for such injuries are not as\neasily quantifiable as a business’s lost profits or a tort victim’s\nmedical bills. Yet, they are within the ambit of compensatory\ndamages, and the district court erred in dismissing them out\nof hand. See Memphis Cmty. School Dist. v. Stachura, 477 U.S.\n299, 307 (1986) (“[C]ompensatory damages may include not\nonly out-of-pocket loss and other monetary harms, but also\nsuch injuries as impairment of reputation, personal humilia-\ntion, and mental anguish and suffering.”) (internal quotation\nand ellipsis omitted).\n Even if the church lacked sufficient evidence to prove its\ndamages to a specific monetary sum, nominal damages\nremain an appropriate means of vindicating rights whose\ndeprivation is difficult to quantify. Guzman v. City of Chicago,\n689 F.3d 740, 748 (7th Cir. 2012); cf. Carey v. Piphus, 435 U.S.\n247, 266 (1978) (recognizing availability of nominal damages\nfor deprivations of civil rights that do not inflict financial\ninjury). The church’s alleged injuries are more than\n“speculative,” and its damages case should have survived\nsummary judgment.\n D. Standing Arguments\n Finally, the city attempts to defend the district court’s\ndecision on an independent ground—the church’s alleged\nlack of standing to pursue its equal terms and unreasonable\n\fNo. 18-1432 19\n\nlimitations claims.13 The city contends the church cannot\ncomplain that other places of public assembly are treated as\npermitted uses in the C-1 and C-2 districts because the church\ndoes not own property in those districts and has never\nattempted to move to them.\n The standing doctrine requires a plaintiff to demonstrate\nit “(1) suffered an injury in fact, (2) that is fairly traceable to\nthe challenged conduct of the defendant, and (3) that is likely\nto be redressed by a favorable judicial decision.” Spokeo, Inc.\nv. Robins, 136 S. Ct. 1540, 1547 (2016). The church meets each\nof those elements. The city’s state court lawsuit to enjoin the\nchurch’s operation is sufficient to demonstrate an injury in\nfact. See Primera Iglesia Bautista Hispana of Boca Raton, Inc. v.\nBroward Cty., 450 F.3d 1295, 1304 (11th Cir. 2006) (municipal\nzoning restriction on use of property constituted an “actual\ninjury”). That injury is directly traceable to the city’s interpre-\ntation of its zoning code and could be redressed by a favorable\njudicial determination.\n The city points to Midrash Sephardi, Inc. v. Town of Surfside,\n366 F.3d 1214 (11th Cir. 2004), to support its argument that an\nRLUIPA plaintiff lacks “standing” to challenge unequal terms\nin a zoning code unless it is presently located in, or has\nconcrete plans to move to, the zoning district where the\ncomparator secular organization is allegedly provided more\nfavorable treatment. Id. at 1224 n.9. Similar to this case, in\nMidrash a municipality attempted to enjoin the operation of\n\n\n 13 Although the city did not challenge the church’s standing to raise\nits unreasonable limitations claim in the district court, challenges to a\nplaintiff’s Article III standing cannot be waived or forfeited. Freedom From\nReligion Found., Inc. v. Nicholson, 536 F.3d 730, 737 (7th Cir. 2008).\n\f20 No. 18-1432\n\ntwo synagogues, which responded by alleging the\nmunicipality’s zoning code violated RLUIPA. Id. at 1220–22.\nThe Eleventh Circuit determined that the synagogues had\nstanding to pursue their claims of a legal right to remain in\ntheir current locations, although they lacked standing to\npursue other discrimination claims regarding the zoning\ntreatment of religious facilities in districts where they were\nnot located. Id. at 1224 & n.9.\n Like the synagogues in Midrash, the church’s legal claims\nare premised on its request to continue to worship at its\npresent site. The church is not an outsider with no stake in the\ncity’s zoning scheme. Although some of the church’s legal\ntheories allege the zoning code nowhere permits churches as\na matter of right, at bottom the church challenges the city’s\ntreatment of churches as conditional uses in the R-3 districts—\nsuch as where the Property is located. In other words, the\nchurch challenges its zoning use categorization at the\nProperty, even as the church argues the zoning code as a\nwhole discriminates against religious uses.\n Such an argument is cognizable, as courts assess the\nentirety of a zoning scheme when evaluating a property\nowner’s RLUIPA claim. See Eagle Cove Camp & Conf. Ctr. v.\nTown of Woodboro, 734 F.3d 673, 680 (7th Cir. 2013) (RLUIPA\nnot violated because plaintiff could locate Bible camp in other\nzoning districts within the municipality); Vision Church, 468\nF.3d at 989 (RLUIPA “exclusion” claim triggered only where\nmunicipality applies “complete and total exclusion of activity\nor expression protected by the First Amendment”).\n In short, the church has sustained a concrete injury result-\ning from the city’s interpretation of which zoning uses are\npermitted in the R-3 districts, and that injury is sufficient to\n\fNo. 18-1432 21\n\ngive the church standing for Article III purposes. The church\nneed not move to another zoning district to acquire standing\nto pursue its claim that it is entitled to stay put.\n III. Conclusion\n For the foregoing reasons, we REVERSE the district court’s\ngrant of summary judgment in favor of the city and REMAND\nfor further proceedings. We encourage the district court to\nbegin by addressing whether operating a church on the\nProperty is a permitted or conditional use under the zoning\ncode.\n Our decision expresses no opinion on the substantive\nmerits of any of the church’s legal claims or on the proper\ninterpretation of the city’s zoning code. The district court did\nnot reach those issues, and we do not decide them\nfor the first time on appeal. Circuit Rule 36 shall apply on\nremand.\n[END_CASE]", "role": "user" } ]
4,582,709	Jason M. LUND, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.	Jason Lund v. United States	2019-01-17	16-2381	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Kanne, Sykes, Darrow", "parties": "", "opinions": [{"author": "trict Judge", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 16-2381\nJASON M. LUND,\n Petitioner-Appellant,\n v.\n\nUNITED STATES OF AMERICA,\n Respondent-Appellee.\n ____________________\n\n Appeal from the United States District Court for the\n Eastern District of Wisconsin.\n No. 16-CV-119 — J.P. Stadtmueller, Judge.\n ____________________\n\n ARGUED OCTOBER 25, 2017— DECIDED JANUARY 17, 2019\n ____________________\n\n Before KANNE and SYKES, Circuit Judges, and DARROW, Dis-\ntrict Judge. ∗\n DARROW, District Judge. Petitioner Jason Lund appeals the\ndenial of his motion to vacate, set aside, or correct his sentence\nbrought pursuant to 28 U.S.C. § 2255. The district court con-\ncluded that Lund’s motion was untimely under each of the\n\n\n ∗ Of the Central District of Illinois, sitting by designation.\n\f2 No. 16-2381\n\npotential statutes of limitations and that Lund could not in-\nvoke the actual innocence exception to the statute of limita-\ntions because his claim of actual innocence was based on a\ncase that interpreted the substantive law of his conviction:\nBurrage v. United States, 571 U.S. 204 (2014). Lund challenges\nonly this conclusion, arguing that a claim of actual innocence\ncan be based on a change in the law. To resolve this case, how-\never, we need not rule on this issue. Even assuming actual in-\nnocence can be premised on a change in the law, Lund cannot\ntake advantage of the exception because he rests both his ac-\ntual innocence claim and his claim for relief on Burrage. We\naﬃrm.\n I. Background\n In 2008, Jason Lund and thirty others were charged via\nfederal indictment with conspiracy to distribute heroin in vi-\nolation of 21 U.S.C. § 841(a)(1). The indictment alleged that\nthe conspiracy resulted in overdose deaths of ﬁve individuals,\nincluding Andrew Goetzke and David Knuth, in violation of\n21 U.S.C. § 841(b)(1)(A). Lund pleaded guilty to the single-\ncount indictment, but denied responsibility for the deaths of\nGoetzke and Knuth, arguing that he had withdrawn from the\nconspiracy prior to their deaths. The district court judge re-\njected that argument and sentenced him in accordance with\nthe twenty-year mandatory minimum—sometimes referred\nto as the “death results” enhancement or penalty—under\n§ 841(b)(1)(A). Lund appealed and his sentence was aﬃrmed.\nUnited States v. Walker, 721 F.3d 828, 841 (7th Cir. 2013), judg-\nment vacated on other grounds, Lawler v. United States, 572 U.S.\n1111 (2014) (mem.). He did not ﬁle a petition for a writ of cer-\ntiorari, so his sentence became ﬁnal on October 1, 2013.\n\fNo. 16-2381 3\n\n On February 1, 2016, Lund ﬁled a motion to vacate, set\naside, or correct his sentence pursuant to 28 U.S.C. § 2255\nbased on two changes in the law occurring after his convic-\ntion. See Burrage, 571 U.S. at 211; Alleyne v. United States, 570\nU.S. 99, 102 (2013). In Burrage, 571 U.S. at 211, the Supreme\nCourt held that ﬁnding a defendant guilty of the “death re-\nsults” penalty “requires proof ‘that the harm would not have\noccurred in the absence of—that is, but for—the defendant’s\nconduct.’” (quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570\nU.S. 338, 346–47 (2013)). This but-for causation rule applies\nretroactively. Krieger v. United States, 842 F.3d 490, 499–500\n(7th Cir. 2016). In essence, Lund argued that under Burrage,\nhe is actually innocent of the “death results” enhancement be-\ncause the heroin he provided to Goetzke and Knuth was not\nthe but-for cause of their deaths. Dist. Ct. Order 7, Br. Appel-\nlant App. 1–15. Alleyne, which concerns who must determine\na fact that increases the mandatory minimum, is not retroac-\ntive, Crayton v. United States, 799 F.3d 623, 624 (7th Cir. 2015),\nso the district court denied any relief based on Alleyne, Dist.\nCt. Order 9. 1\n The government moved to dismiss the motion as un-\ntimely. The district court found that there was no statutory\nbasis to ﬁnd his petition timely—it was ﬁled more than a year\nafter his conviction became ﬁnal, 28 U.S.C. § 2255(f)(1); more\nthan a year after the Supreme Court decided Burrage, id.\n§ 2255(f)(3); and more than a year after the evidence he pre-\nsented could have been discovered, id. § 2255(f)(4). Dist. Ct.\nOrder 4–7. The district court held that Lund was not entitled\n\n\n 1 Lund concedes on appeal that Alleyne is not retroactive, so it is “of\nlimited use now.” Br. Appellant 25.\n\f4 No. 16-2381\n\nto equitable tolling. Id. at 12–13. 2 It also held that he was una-\nble to use the actual innocence gateway exception to the stat-\nute of limitations, which would allow the court to hear his\notherwise barred claims, because this Court had not deter-\nmined “that an intervening change in law supports a claim of\nactual innocence.” Id. at 10. The court did not reach the merits\nof Lund’s claims, but it granted him a certiﬁcate of appeala-\nbility. This appeal followed.\n II. Discussion\n We review the district court’s legal conclusions de novo.\nColeman v. Lemke, 739 F.3d 342, 349 (7th Cir. 2014). Lund raises\none legal issue: whether an intervening change in law can\nserve as the basis for an actual innocence claim.\n “[A]ctual innocence, if proved, serves as a gateway\nthrough which a petitioner may pass whether the impedi-\nment is a procedural bar ... or ... expiration of the statute of\nlimitations.” McQuiggin v. Perkins, 569 U.S. 383, 386 (2013); see\nSchlup v. Delo, 513 U.S. 298, 317 (1995) (holding that a peti-\ntioner who procedurally defaults his claims can overcome the\nprocedural bar if he successfully raises a claim of actual inno-\ncence—that is, if he “raise[s] suﬃcient doubt about [his] guilt\nto undermine conﬁdence in the result”). The actual innocence\ngateway exception is “grounded in the ‘equitable discretion’\nof habeas courts to see that federal constitutional errors do not\nresult in the incarceration of innocent persons.” Herrera v. Col-\nlins, 506 U.S. 390, 404 (1993) (quoting McCleskey v. Zant, 499\nU.S. 467, 502 (1991)). To establish actual innocence, “a peti-\ntioner must show that it is more likely than not that no\n\n 2 Lund does not challenge the district court’s ruling on equitable toll-\ning, so we do not address it.\n\fNo. 16-2381 5\n\nreasonable juror would have found petitioner guilty beyond\na reasonable doubt.” Schlup, 513 U.S. at 327.\n The actual innocence exception certainly applies where\nthe petitioner has new evidence, like DNA evidence. See\nHouse v. Bell, 547 U.S. 518, 537 (2006). But this Court has never\nexplicitly held that it can be used in situations where a subse-\nquent change to the scope of a law renders the conduct the\npetitioner was convicted for no longer criminal. See Gladney v.\nPollard, 799 F.3d 889, 897 (7th Cir. 2015).\n We need not take a position on this issue, because even\nassuming that actual innocence could be predicated on a case\nsubstantively interpreting the law under which a petitioner\nwas convicted, it would not extend to this case.\n Lund is attempting to use Burrage as his claim for actual\ninnocence and his claim for relief on the merits. This is a prob-\nlem for two reasons. First, it is “doubtful” that a petitioner’s\nactual innocence claim and claim for relief on the merits can\nbe the same. See Perrone v. United States, 889 F.3d 898, 903 (7th\nCir. 2018). And second, even if it can, in this situation it would\ncompletely undermine the statute of limitations for bringing\ninitial § 2255 motions within one year from the date a new\nright is recognized by the Supreme Court.\n The actual innocence exception is merely a gateway\nthrough which a court can consider a petitioner’s otherwise\nbarred claims on their merits. See Herrera, 506 U.S. at 404–05.\nFraming the exception as a gateway presupposes that a peti-\ntioner will have underlying claims separate from the claim\nthat he is actually innocent. “The Supreme Court has not rec-\nognized a petitioner’s right to habeas relief based on a stand-\nalone claim of actual innocence.” Gladney, 799 F.3d at 895.\n\f6 No. 16-2381\n\nMoreover, “[t]he point of the exception is to ensure that ‘fed-\neral constitutional errors do not result in the incarceration of\ninnocent persons.’” Perrone, 889 F.3d at 903 (quoting Herrera,\n506 U.S. at 404). This suggests that the underlying claim must\nbe a constitutional claim, rather than a statutory claim like\nBurrage.\n Lund argues that he does not need to bring a separate con-\nstitutional claim because Burrage is itself cognizable in § 2255\nproceedings. By contrast, he argues, a state prisoner would\nneed to bring an underlying constitutional claim because nei-\nther a claim of actual innocence based on new evidence nor a\nclaim based on a state law error would be cognizable in a §\n2254 proceeding. We do not ﬁnd this persuasive. The Supreme\nCourt has never mentioned a diﬀerence in the purpose or ap-\nplication of the actual innocence exception between § 2254\nand § 2255 proceedings. Therefore, we concur that it is\n“doubtful” that Lund’s Burrage claim could be both his argu-\nment for actual innocence and his claim for relief. See id. at\n902–03 (holding that the parties’ assumption that a claim of\nactual innocence based on Burrage could do “double duty”\nwas “doubtful”).\n Lund also argues that he has raised underlying constitu-\ntional claims. We disagree. Lund claims that his pro se plead-\nings should have been construed to include an ineﬀective as-\nsistance of counsel claim. In his reply brief below, he argued\nthat his “main cause for not putting forth [a] petition in light\nof the Supreme Court’s decision in Alleyne [wa]s Ineﬀective\nAssistance of Counsel.” Reply Br. Pet’r 2, ECF No. 8; 3 see id. at\n3 (“With these facts in mind, if the court were to enforce\n\n 3 This ECF number refers to the district court’s docket.\n\fNo. 16-2381 7\n\nprocedural default/untimeliness, the result would be a funda-\nmental miscarriage of justice.”). The district court held that\nLund “d[id] not assert an ineﬀective assistance of counsel\nclaim in his petition.” Dist. Ct. Order 3 n.3. It read Lund’s ar-\ngument regarding his attorney’s eﬀectiveness to relate only to\nhis position that his claims should have been equitably tolled.\nId. Lund asserts that the district court should have construed\nhis reference to ineﬀective assistance of counsel as a request\nto amend his § 2255 claim to include a separate ineﬀective as-\nsistance of counsel claim, which then should have been\ngranted.\n The district court did not err. True, pro se pleadings must\nbe liberally construed, see McNeil v. United States, 508 U.S. 106,\n113 (1993), but Lund never indicated—neither in the title of\nhis response, nor its substance—that he was seeking to add a\nclaim. Instead, it appears from his pro se ﬁlings that he was\nseeking to use ineﬀective assistance of counsel as cause to ex-\ncuse his procedural default and untimeliness. Therefore, the\ndistrict court need not have construed Lund’s response as a\nrequest to amend. 4\n More to the point, allowing Burrage to serve as both\nLund’s basis for actual innocence and his claim for relief on\nthe merits directly contracts a Congressionally-imposed stat-\nute of limitations. McQuiggin, 569 U.S. at 386, involved the\ntime limit in 28 U.S.C. § 2244(d)(1)(D), which starts the clock\n\n 4 Lund also argues that his motion should have been construed to in-\nclude a Due Process claim based on Burrage. We will not consider this\nargument because it was raised for the first time in his reply brief, see\nUnited States v. Wescott, 576 F.3d 347, 354 (7th Cir. 2009), and because it\nwas not raised below, see Freeland v. Enodis Corp., 540 F.3d 721, 731 (7th\nCir. 2008).\n\f8 No. 16-2381\n\nfor the one-year limitation on the date when the facts of the\nclaim could have been discovered. Lund’s Burrage claim, by\ncontrast, is barred by the statute of limitations which prohibits\npetitioners from bringing habeas claims based on rights rec-\nognized by the Supreme Court, and made retroactively appli-\ncable to cases on collateral review, more than one year after\nthe right was recognized by the Court. See 28 U.S.C.\n§ 2255(f)(3).\n In McQuiggin, 569 U.S. at 397, the Supreme Court ex-\nplained that, as there is “no clear command [in § 2244(d)(1)]\ncountering the courts’ equitable authority to invoke the mis-\ncarriage of justice exception,” it survived the enactment of the\nAntiterrorism and Eﬀective Death Penalty Act of 1996\n(“AEDPA”), at least as it relates to the statutes of limitations\ncontained within that section. The Court noted, however, that\nother provisions of AEDPA did contain language modifying\nthe actual innocence exception. Compare Schlup, 513 U.S. at 327\n(“[A] petitioner must show that it is more likely than not that\nno reasonable juror would have found petitioner guilty be-\nyond a reasonable doubt.”), with § 2244(b)(1)(B) (providing\nthat a claim presented in a successive habeas petition that was\nnot presented in a prior § 2254 petition will be dismissed un-\nless the facts establish by clear and convincing evidence that\nno reasonable factﬁnder would have found the applicant\nguilty of the underlying oﬀense).\n Likewise, here, there is a clear statutory command limiting\ncourts’ equitable discretion to use the actual innocence gate-\nway to excuse failure to comply with § 2255(f)(3). Congress\nset a one-year limit for petitioners to bring § 2255 motions\nbased on new rights recognized by the Supreme Court. Al-\nlowing a claim like Burrage to serve as both the basis for actual\n\fNo. 16-2381 9\n\ninnocence and the basis for relief would render this statute of\nlimitations superﬂuous, at least as it applies to newly recog-\nnized statutory rights. Every time there is a retroactive inter-\npretation of a criminal law, petitioners convicted under it\nwould have an initial § 2255 claim based on the new interpre-\ntation indeﬁnitely.\n We aﬃrm the district court’s decision denying Lund’s\n§ 2255 motion as untimely. Lund’s § 2255 motion was conced-\nedly untimely and we hold that he cannot use the actual in-\nnocence gateway to overcome the statute of limitations in this\ncase.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4359962/", "author_raw": "trict Judge"}]}	KANNE	SYKES	DARROW	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4582709/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Jason M. LUND, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-17\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 16-2381\nJASON M. LUND,\n Petitioner-Appellant,\n v.\n\nUNITED STATES OF AMERICA,\n Respondent-Appellee.\n ____________________\n\n Appeal from the United States District Court for the\n Eastern District of Wisconsin.\n No. 16-CV-119 — J.P. Stadtmueller, Judge.\n ____________________\n\n ARGUED OCTOBER 25, 2017— DECIDED JANUARY 17, 2019\n ____________________\n\n Before KANNE and SYKES, Circuit Judges, and DARROW, Dis-\ntrict Judge. ∗\n DARROW, District Judge. Petitioner Jason Lund appeals the\ndenial of his motion to vacate, set aside, or correct his sentence\nbrought pursuant to 28 U.S.C. § 2255. The district court con-\ncluded that Lund’s motion was untimely under each of the\n\n\n ∗ Of the Central District of Illinois, sitting by designation.\n\f2 No. 16-2381\n\npotential statutes of limitations and that Lund could not in-\nvoke the actual innocence exception to the statute of limita-\ntions because his claim of actual innocence was based on a\ncase that interpreted the substantive law of his conviction:\nBurrage v. United States, 571 U.S. 204 (2014). Lund challenges\nonly this conclusion, arguing that a claim of actual innocence\ncan be based on a change in the law. To resolve this case, how-\never, we need not rule on this issue. Even assuming actual in-\nnocence can be premised on a change in the law, Lund cannot\ntake advantage of the exception because he rests both his ac-\ntual innocence claim and his claim for relief on Burrage. We\naﬃrm.\n I. Background\n In 2008, Jason Lund and thirty others were charged via\nfederal indictment with conspiracy to distribute heroin in vi-\nolation of 21 U.S.C. § 841(a)(1). The indictment alleged that\nthe conspiracy resulted in overdose deaths of ﬁve individuals,\nincluding Andrew Goetzke and David Knuth, in violation of\n21 U.S.C. § 841(b)(1)(A). Lund pleaded guilty to the single-\ncount indictment, but denied responsibility for the deaths of\nGoetzke and Knuth, arguing that he had withdrawn from the\nconspiracy prior to their deaths. The district court judge re-\njected that argument and sentenced him in accordance with\nthe twenty-year mandatory minimum—sometimes referred\nto as the “death results” enhancement or penalty—under\n§ 841(b)(1)(A). Lund appealed and his sentence was aﬃrmed.\nUnited States v. Walker, 721 F.3d 828, 841 (7th Cir. 2013), judg-\nment vacated on other grounds, Lawler v. United States, 572 U.S.\n1111 (2014) (mem.). He did not ﬁle a petition for a writ of cer-\ntiorari, so his sentence became ﬁnal on October 1, 2013.\n\fNo. 16-2381 3\n\n On February 1, 2016, Lund ﬁled a motion to vacate, set\naside, or correct his sentence pursuant to 28 U.S.C. § 2255\nbased on two changes in the law occurring after his convic-\ntion. See Burrage, 571 U.S. at 211; Alleyne v. United States, 570\nU.S. 99, 102 (2013). In Burrage, 571 U.S. at 211, the Supreme\nCourt held that ﬁnding a defendant guilty of the “death re-\nsults” penalty “requires proof ‘that the harm would not have\noccurred in the absence of—that is, but for—the defendant’s\nconduct.’” (quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570\nU.S. 338, 346–47 (2013)). This but-for causation rule applies\nretroactively. Krieger v. United States, 842 F.3d 490, 499–500\n(7th Cir. 2016). In essence, Lund argued that under Burrage,\nhe is actually innocent of the “death results” enhancement be-\ncause the heroin he provided to Goetzke and Knuth was not\nthe but-for cause of their deaths. Dist. Ct. Order 7, Br. Appel-\nlant App. 1–15. Alleyne, which concerns who must determine\na fact that increases the mandatory minimum, is not retroac-\ntive, Crayton v. United States, 799 F.3d 623, 624 (7th Cir. 2015),\nso the district court denied any relief based on Alleyne, Dist.\nCt. Order 9. 1\n The government moved to dismiss the motion as un-\ntimely. The district court found that there was no statutory\nbasis to ﬁnd his petition timely—it was ﬁled more than a year\nafter his conviction became ﬁnal, 28 U.S.C. § 2255(f)(1); more\nthan a year after the Supreme Court decided Burrage, id.\n§ 2255(f)(3); and more than a year after the evidence he pre-\nsented could have been discovered, id. § 2255(f)(4). Dist. Ct.\nOrder 4–7. The district court held that Lund was not entitled\n\n\n 1 Lund concedes on appeal that Alleyne is not retroactive, so it is “of\nlimited use now.” Br. Appellant 25.\n\f4 No. 16-2381\n\nto equitable tolling. Id. at 12–13. 2 It also held that he was una-\nble to use the actual innocence gateway exception to the stat-\nute of limitations, which would allow the court to hear his\notherwise barred claims, because this Court had not deter-\nmined “that an intervening change in law supports a claim of\nactual innocence.” Id. at 10. The court did not reach the merits\nof Lund’s claims, but it granted him a certiﬁcate of appeala-\nbility. This appeal followed.\n II. Discussion\n We review the district court’s legal conclusions de novo.\nColeman v. Lemke, 739 F.3d 342, 349 (7th Cir. 2014). Lund raises\none legal issue: whether an intervening change in law can\nserve as the basis for an actual innocence claim.\n “[A]ctual innocence, if proved, serves as a gateway\nthrough which a petitioner may pass whether the impedi-\nment is a procedural bar ... or ... expiration of the statute of\nlimitations.” McQuiggin v. Perkins, 569 U.S. 383, 386 (2013); see\nSchlup v. Delo, 513 U.S. 298, 317 (1995) (holding that a peti-\ntioner who procedurally defaults his claims can overcome the\nprocedural bar if he successfully raises a claim of actual inno-\ncence—that is, if he “raise[s] suﬃcient doubt about [his] guilt\nto undermine conﬁdence in the result”). The actual innocence\ngateway exception is “grounded in the ‘equitable discretion’\nof habeas courts to see that federal constitutional errors do not\nresult in the incarceration of innocent persons.” Herrera v. Col-\nlins, 506 U.S. 390, 404 (1993) (quoting McCleskey v. Zant, 499\nU.S. 467, 502 (1991)). To establish actual innocence, “a peti-\ntioner must show that it is more likely than not that no\n\n 2 Lund does not challenge the district court’s ruling on equitable toll-\ning, so we do not address it.\n\fNo. 16-2381 5\n\nreasonable juror would have found petitioner guilty beyond\na reasonable doubt.” Schlup, 513 U.S. at 327.\n The actual innocence exception certainly applies where\nthe petitioner has new evidence, like DNA evidence. See\nHouse v. Bell, 547 U.S. 518, 537 (2006). But this Court has never\nexplicitly held that it can be used in situations where a subse-\nquent change to the scope of a law renders the conduct the\npetitioner was convicted for no longer criminal. See Gladney v.\nPollard, 799 F.3d 889, 897 (7th Cir. 2015).\n We need not take a position on this issue, because even\nassuming that actual innocence could be predicated on a case\nsubstantively interpreting the law under which a petitioner\nwas convicted, it would not extend to this case.\n Lund is attempting to use Burrage as his claim for actual\ninnocence and his claim for relief on the merits. This is a prob-\nlem for two reasons. First, it is “doubtful” that a petitioner’s\nactual innocence claim and claim for relief on the merits can\nbe the same. See Perrone v. United States, 889 F.3d 898, 903 (7th\nCir. 2018). And second, even if it can, in this situation it would\ncompletely undermine the statute of limitations for bringing\ninitial § 2255 motions within one year from the date a new\nright is recognized by the Supreme Court.\n The actual innocence exception is merely a gateway\nthrough which a court can consider a petitioner’s otherwise\nbarred claims on their merits. See Herrera, 506 U.S. at 404–05.\nFraming the exception as a gateway presupposes that a peti-\ntioner will have underlying claims separate from the claim\nthat he is actually innocent. “The Supreme Court has not rec-\nognized a petitioner’s right to habeas relief based on a stand-\nalone claim of actual innocence.” Gladney, 799 F.3d at 895.\n\f6 No. 16-2381\n\nMoreover, “[t]he point of the exception is to ensure that ‘fed-\neral constitutional errors do not result in the incarceration of\ninnocent persons.’” Perrone, 889 F.3d at 903 (quoting Herrera,\n506 U.S. at 404). This suggests that the underlying claim must\nbe a constitutional claim, rather than a statutory claim like\nBurrage.\n Lund argues that he does not need to bring a separate con-\nstitutional claim because Burrage is itself cognizable in § 2255\nproceedings. By contrast, he argues, a state prisoner would\nneed to bring an underlying constitutional claim because nei-\nther a claim of actual innocence based on new evidence nor a\nclaim based on a state law error would be cognizable in a §\n2254 proceeding. We do not ﬁnd this persuasive. The Supreme\nCourt has never mentioned a diﬀerence in the purpose or ap-\nplication of the actual innocence exception between § 2254\nand § 2255 proceedings. Therefore, we concur that it is\n“doubtful” that Lund’s Burrage claim could be both his argu-\nment for actual innocence and his claim for relief. See id. at\n902–03 (holding that the parties’ assumption that a claim of\nactual innocence based on Burrage could do “double duty”\nwas “doubtful”).\n Lund also argues that he has raised underlying constitu-\ntional claims. We disagree. Lund claims that his pro se plead-\nings should have been construed to include an ineﬀective as-\nsistance of counsel claim. In his reply brief below, he argued\nthat his “main cause for not putting forth [a] petition in light\nof the Supreme Court’s decision in Alleyne [wa]s Ineﬀective\nAssistance of Counsel.” Reply Br. Pet’r 2, ECF No. 8; 3 see id. at\n3 (“With these facts in mind, if the court were to enforce\n\n 3 This ECF number refers to the district court’s docket.\n\fNo. 16-2381 7\n\nprocedural default/untimeliness, the result would be a funda-\nmental miscarriage of justice.”). The district court held that\nLund “d[id] not assert an ineﬀective assistance of counsel\nclaim in his petition.” Dist. Ct. Order 3 n.3. It read Lund’s ar-\ngument regarding his attorney’s eﬀectiveness to relate only to\nhis position that his claims should have been equitably tolled.\nId. Lund asserts that the district court should have construed\nhis reference to ineﬀective assistance of counsel as a request\nto amend his § 2255 claim to include a separate ineﬀective as-\nsistance of counsel claim, which then should have been\ngranted.\n The district court did not err. True, pro se pleadings must\nbe liberally construed, see McNeil v. United States, 508 U.S. 106,\n113 (1993), but Lund never indicated—neither in the title of\nhis response, nor its substance—that he was seeking to add a\nclaim. Instead, it appears from his pro se ﬁlings that he was\nseeking to use ineﬀective assistance of counsel as cause to ex-\ncuse his procedural default and untimeliness. Therefore, the\ndistrict court need not have construed Lund’s response as a\nrequest to amend. 4\n More to the point, allowing Burrage to serve as both\nLund’s basis for actual innocence and his claim for relief on\nthe merits directly contracts a Congressionally-imposed stat-\nute of limitations. McQuiggin, 569 U.S. at 386, involved the\ntime limit in 28 U.S.C. § 2244(d)(1)(D), which starts the clock\n\n 4 Lund also argues that his motion should have been construed to in-\nclude a Due Process claim based on Burrage. We will not consider this\nargument because it was raised for the first time in his reply brief, see\nUnited States v. Wescott, 576 F.3d 347, 354 (7th Cir. 2009), and because it\nwas not raised below, see Freeland v. Enodis Corp., 540 F.3d 721, 731 (7th\nCir. 2008).\n\f8 No. 16-2381\n\nfor the one-year limitation on the date when the facts of the\nclaim could have been discovered. Lund’s Burrage claim, by\ncontrast, is barred by the statute of limitations which prohibits\npetitioners from bringing habeas claims based on rights rec-\nognized by the Supreme Court, and made retroactively appli-\ncable to cases on collateral review, more than one year after\nthe right was recognized by the Court. See 28 U.S.C.\n§ 2255(f)(3).\n In McQuiggin, 569 U.S. at 397, the Supreme Court ex-\nplained that, as there is “no clear command [in § 2244(d)(1)]\ncountering the courts’ equitable authority to invoke the mis-\ncarriage of justice exception,” it survived the enactment of the\nAntiterrorism and Eﬀective Death Penalty Act of 1996\n(“AEDPA”), at least as it relates to the statutes of limitations\ncontained within that section. The Court noted, however, that\nother provisions of AEDPA did contain language modifying\nthe actual innocence exception. Compare Schlup, 513 U.S. at 327\n(“[A] petitioner must show that it is more likely than not that\nno reasonable juror would have found petitioner guilty be-\nyond a reasonable doubt.”), with § 2244(b)(1)(B) (providing\nthat a claim presented in a successive habeas petition that was\nnot presented in a prior § 2254 petition will be dismissed un-\nless the facts establish by clear and convincing evidence that\nno reasonable factﬁnder would have found the applicant\nguilty of the underlying oﬀense).\n Likewise, here, there is a clear statutory command limiting\ncourts’ equitable discretion to use the actual innocence gate-\nway to excuse failure to comply with § 2255(f)(3). Congress\nset a one-year limit for petitioners to bring § 2255 motions\nbased on new rights recognized by the Supreme Court. Al-\nlowing a claim like Burrage to serve as both the basis for actual\n\fNo. 16-2381 9\n\ninnocence and the basis for relief would render this statute of\nlimitations superﬂuous, at least as it applies to newly recog-\nnized statutory rights. Every time there is a retroactive inter-\npretation of a criminal law, petitioners convicted under it\nwould have an initial § 2255 claim based on the new interpre-\ntation indeﬁnitely.\n We aﬃrm the district court’s decision denying Lund’s\n§ 2255 motion as untimely. Lund’s § 2255 motion was conced-\nedly untimely and we hold that he cannot use the actual in-\nnocence gateway to overcome the statute of limitations in this\ncase.\n[END_CASE]", "role": "user" } ]
4,582,710		Church of Our Lord and Savior v. City of Markham, Illinois	2019-01-17	18-1432	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before FLAUM, EASTERBROOK, and BRENNAN, Circuit Judges.", "parties": "", "opinions": [{"author": "BRENNAN, Circuit Judge", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-1432\nTHE CHURCH OF OUR LORD AND SAVIOR JESUS CHRIST,\n Plaintiff-Appellant,\n v.\n\nCITY OF MARKHAM, ILLINOIS\n Defendant-Appellee.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 1:15-cv-04079 — Ronald A. Guzmán, Judge.\n ____________________\n\n ARGUED OCTOBER 31, 2018 — DECIDED JANUARY 17, 2019\n ____________________\n\n Before FLAUM, EASTERBROOK, and BRENNAN, Circuit Judges.\n BRENNAN, Circuit Judge. In the City of Markham, Illinois,\n16018 South Spaulding Avenue (the “Property”) is home to\nThe Church of Our Lord and Savior Jesus Christ. We use the\nword “home” literally and figuratively: the church converted\na single-family residence on the Property into its house of\nworship. The Property’s location in a residential area, and the\nchurch’s ensuing zoning battles with the city, give rise to this\nlawsuit.\n\f2 No. 18-1432\n\n For more than 15 years, the church’s congregation has\ngathered at the Property for worship services, choir rehears-\nals, Bible studies, and the like. As the church grew, it remod-\neled the house to better accommodate its new purpose. This\nbrought the church into contact with the city’s administration\nthrough permit applications, property inspections, and\nsimilar zoning-related interactions.\n The parties dispute what the city knew about the church’s\nuse of the Property, and when, but such issues are largely\nirrelevant at this juncture. What matters (and is undisputed)\nis that the city sought an injunction in state court to halt the\nchurch’s operation on the Property without a conditional use\npermit, prompting the church to file an application for such a\npermit, which the city denied. All that occurred before this\ncase began.\n Denied a conditional use permit and facing a possible\ncourt order enjoining its operation, the church brought this\nlawsuit challenging the city’s zoning code under the Religious\nLand Use and Institutionalized Persons Act, 42 U.S.C.\n§ 2000cc et seq. (“RLUIPA”), and the Illinois Religious Free-\ndom Restoration Act, 775 ILL. COMP. STAT. 35/1 et seq. The\nchurch contends the city’s zoning code treats religious uses of\nproperty on unequal terms with analogous secular uses and\nunreasonably limits where religious organizations may locate\nin the city. The church also alleges the city’s insistence on a\nconditional use permit has imposed a substantial burden on\nits religious exercise.\n Two years into this litigation, the city argued (for the first\ntime) that the church’s legal claims were not ripe because the\nchurch never applied for variances from applicable parking\nregulations. The district court ordered the church to apply for\n\fNo. 18-1432 3\n\nsuch variances, and the city ultimately awarded them to the\nchurch, along with a conditional use permit. Afterward, the\ndistrict court granted the city summary judgment, ruling the\nchurch’s claims were not ripe when filed and rendered moot.\n We reverse. The district court focused on the church not\napplying for parking variances before the lawsuit. But that\nissue is related only tangentially to the church’s claims, which\nconcern zoning use classifications, not parking. The ripeness\nof the church’s claims does not hinge on pursuit of parking\nvariances that will not resolve them. Nor can a conditional use\npermit from the city moot the church’s claim that such a\npermit is not needed. The key question in this case is whether\noperating a church on the Property is a permitted or condi-\ntional use. The district court did not answer that question, but\nit is the necessary starting point for resolving the church’s\nlegal claims.\n I. Background\n A. The City’s Zoning Regulations\n The city employs a “cumulative” zoning scheme, desig-\nnating 11 categories of “use districts.” CITY OF MARKHAM, ILL.,\nZONING CODE § 156.015. A “use” refers to “[t]he purpose for\nwhich land or premises or a building or structure thereon is\ndesigned, arranged, or intended, or for which it is occupied\nor maintained, let or leased.” Zoning Code § 156.003. The\nvarious use districts are ranked from the highest, most restric-\ntive uses (R-1 One-Family Residential Districts) to the lowest,\nleast restrictive uses (L-3 Motor Freight Terminal Districts).\nCompare Zoning Code §§ 156.050–.056, with §§ 156.210–.224.\nThe scheme is “cumulative” because any use in a higher use\ndistrict is permitted in a lower use district (for example, all\n\f4 No. 18-1432\n\nuses permitted in the residential districts are permitted in the\ncommercial districts). Zoning Code § 156.146(A); see also 1\nPATRICIA E. SALKIN, AMERICAN LAW OF ZONING § 9:14 (5th ed.\nSupp. 2018).\n The zoning code also distinguishes between “permitted”\nuses (which do not require city approval) and “conditional”\nuses (which do). Compare Zoning Code § 156.051 (“The\nfollowing uses are permitted …”), with § 156.052 (“The\nfollowing [uses] may also be permitted upon approval of their\nlocation and development by the Plan Commission …”); see\nalso SALKIN, supra, at § 9:20. If a property owner’s intended use\nis not permitted as of right, the owner must apply to the city\nfor a conditional (or “special”) use permit. Zoning Code\n§ 156.317(A).1 The city’s planning commission evaluates the\napplication and may recommend approval only if “it finds\nthat the issuance of such special use permit is in the public\ninterest and not solely for the interest of the applicant.” Zon-\ning Code § 156.319(B). Final authority on conditional use\npermits rests with the city council, which may grant one only\nif “[t]he proposed use at the particular location requested is\neither necessary or desirable in order to provide a service or a\nfacility which is in the interest of public need and convenience\nand which will contribute to the general welfare of the com-\nmunity.” Zoning Code § 156.320(A).\n The Property is located in an R-3 One-Family Residential\nDistrict, which permits single-family dwellings and “[a]ll\nuses permitted in the R-2 district.” Zoning Code § 156.081.\n\n\n 1 The zoning code uses the terms “conditional use” and “special use”\ninterchangeably. E.g., Zoning Code §§ 156.315–.327. We employ the\nphrase “conditional use.”\n\fNo. 18-1432 5\n\nKeeping with the nesting doll framework of cumulative\nzoning, “[a]ll uses permitted in the R-1 district” are permitted\nin the R-2 districts, so all uses permitted in the R-1 districts\nare also permitted in the R-3 districts. Zoning Code\n§ 156.066(B).\n The zoning code does not expressly provide for any con-\nditional uses in the R-2 or R-3 districts. But it does list five\nconditional uses in the R-1 districts: (1) Schools, (2) “Churches\nand buildings usually associated with similar activities,”\n(3) Public parks, (4) Governmental and utility buildings, and\n(5) Hospitals. Zoning Code § 156.052. That is the only provi-\nsion in the zoning code that mentions “churches” as a condi-\ntional use, and no provision expressly identifies them as a\npermitted use. Other places of public assembly, meanwhile,\nare permitted uses as of right in other districts: “theaters” are\npermitted in C-1 Neighborhood Shopping Districts, Zoning\nCode § 156.146(D)(2), and “auditoriums” are permitted in C-2\nCommunity Shopping Districts. Zoning Code § 156.161(B)(2).\n The zoning code’s use classifications are distinct from its\nparking regulations. In “all districts,” whenever a building is\nto be erected or enlarged, the owner must present a plan for\noff-street parking to be approved by the city’s planning com-\nmission, regardless of whether the property owner’s use is\npermitted or conditional. Zoning Code §§ 156.246–.247. The\nrequired number of off-street parking spaces, however, varies\ndepending on property use. Zoning Code § 156.252.\n B. Renovation of the Property\n Reginald McCracken, the church’s pastor, purchased the\nProperty as a personal residence in 1985. In 2003, the congre-\ngation began meeting regularly at the Property, with ten to\n\f6 No. 18-1432\n\ntwenty people attending Sunday morning services. Today,\naverage attendance for a worship service is about thirty peo-\nple. In 2012, due to growing attendance and an increase in\nreligious activities, the church began a project to renovate the\ngarage into a chapel. The project involved installing a new\nroof, new windows, and pews, and cost approximately\n$40,000.2 Just months after the project’s completion, the city\nfiled suit against the church in Illinois state court, seeking to\nenjoin its operation on the Property without a conditional use\npermit. The city did not issue any citations or formal notices\nto the church beforehand.\n C. 2013 Application for a Conditional Use Permit\n When the state court denied the church’s motion to\ndismiss the city’s lawsuit in March 2013, the church requested\na continuance to apply for a conditional use permit from the\ncity. The state court granted the continuance, simultaneously\nentering an order restricting off-street parking around the\nProperty.3 The church filed its application, but it did not\nrequest any variances from the city’s parking regulations.\n After considering reports from a building inspector and an\nengineering consultant, the city’s planning commission voted\nto recommend that the city council deny the church’s condi-\ntional use application. A week later, the city council\nconcurred and denied the application.\n\n\n 2 The parties’ briefs address numerous disputes about previous per-\nmit applications and whether the church obtained the necessary approvals\nbefore starting its construction project in 2012. Because the merits of this\nappeal do not turn on such issues, we do not delve into them.\n 3The city’s lawsuit in state court has since been stayed indefinitely,\npending resolution of the church’s claims in this case.\n\fNo. 18-1432 7\n\n D. This Lawsuit\n Following the city’s denial of the conditional use permit,\nthe church filed this lawsuit in Illinois state court. When the\nchurch amended its complaint to add an RLUIPA claim, the\ncity removed the case to federal court. The city unsuccessfully\nmoved to dismiss the church’s claims, in both state and\nfederal court, but at the pleading stage never challenged their\nripeness.\n The church’s operative complaint contains four distinct\nclaims: (1) an RLUIPA “equal terms” claim under 42 U.S.C.\n§ 2000cc(b)(1); (2) an RLUIPA “unreasonable limitations”\nclaim under 42 U.S.C. § 2000cc(b)(3)(B); (3) an RLUIPA\n“substantial burden” claim under 42 U.S.C. § 2000cc(a)(1);\nand (4) a claim under Illinois’s Religious Freedom Restoration\nAct, 775 ILL. COMP. STAT. 35/25(d).4\n As to how religious facilities should be classified under\nthe zoning code, the church sees only two possible interpreta-\ntions, either of which renders the city liable. The church’s\npreferred interpretation is that a church is a permitted use of\nthe Property, such that the city’s insistence on a conditional\nuse permit was incorrect and constituted a substantial burden\non the church’s religious exercise. According to the church,\nthe only other possible interpretation is that a church is a\nconditional use in the R-3 districts, which would mean the\nzoning code provides no districts in which religious facilities\n\n\n 4 Because the last two claims are “materially identical,” World Outreach\n\nConference Ctr. v. City of Chicago, 591 F.3d 531, 533 (7th Cir. 2009), we refer\nto them together as the “substantial burden claims.”\n\f8 No. 18-1432\n\nare permitted as of right, thereby violating RLUIPA’s equal\nterms and unreasonable limitations provisions.\n The city reads the zoning code a third way: churches are a\nconditional use in the R-3 districts, but are permitted as of\nright in the city’s commercial and industrial districts\n(although those districts do not expressly list “churches” as a\npermitted use), so there cannot possibly be an equal terms or\nunreasonable limitations problem.\n After discovery closed, the church announced it intended\nto move for summary judgment on the permitted versus\nconditional use question. The district court asked how the city\nhoped to resolve the parties’ dispute, and the city’s attorney\nasserted the church’s claims were not ripe because the church\nhad never submitted a parking plan for the city to consider.\nSubsequently, the district court struck the parties’ cross\nmotions for summary judgment and ordered the church to\napply for a parking variance. The district court specified,\nhowever, that it was “not opining on whether Plaintiff needs,\nor the City should approve, any particular variations or\nconditional use permits Plaintiff may seek.”\n The church complied with the district court’s order by\nfiling an “Application for Variances” with the city, in which it\nexpressly stated it was not seeking zoning approval, based on\nits contention that a church is a permitted use not requiring\nconditional use approval. The church did request, however,\n“whatever variances the City believes are necessary to allow\nthe Church to continue with its existing off-street parking.”\nThe church also acknowledged it could not “afford to bring\nits existing parking into compliance with the strict letter of the\nCity’s Ordinance,” such that “variances for parking are\n\fNo. 18-1432 9\n\nrequired in order to accommodate and allow the congregation\nto continue its religious assembly on the property.”\n The city council responded by passing two ordinances,\nwhich purported to grant the church parking variances and a\nconditional use permit. But each required the church’s signa-\nture accepting all terms and conditions imposed. The church\nnever executed either ordinance.\n When the parties returned to the district court following\nthis process, the district court granted the city summary\njudgment on all counts. The court held that the church’s\nclaims were not ripe when filed because the church had not\napplied for parking variances, and the church’s claims for\nfuture damages became moot as a result of the conditional use\npermit. The district court ruled that any claim for past dam-\nages was “speculative” and failed because the claims had not\nripened until the church submitted its variance application.\nThe church appealed.\n II. Discussion\n We review a grant of summary judgment de novo. Vision\nChurch v. Vill. of Long Grove, 468 F.3d 975, 988 (7th Cir. 2006).\nDe novo review also applies to a district court’s ripeness and\nmootness determinations, although we accept its underlying\nfactual findings absent clear error. Freedom From Religion\nFound., Inc. v. Concord Cmty. Sch., 885 F.3d 1038, 1045 (7th Cir.\n2018) (mootness); Metropolitan Milwaukee Ass’n of Commerce v.\nMilwaukee Cty., 325 F.3d 879, 881 (7th Cir. 2003) (ripeness).\n The church’s operative complaint alleges the zoning code\ntreats religious uses of property on unequal terms with secu-\nlar uses, unreasonably limits where religious organizations\n\f10 No. 18-1432\n\nmay locate, and substantially burdens its religious exercise.5\nImportantly, the church’s equal terms and unreasonable\nlimitations claims hinge on the city’s interpretation of its\nzoning code rendering churches a conditional use in the R-3\ndistricts, rather than a permitted use as of right. If, however,\nthe church’s interpretation that it is a permitted use is correct,\nthen its equal terms and unreasonable limitations claims fall\naway, leaving only its substantial burden claims.\n Despite the significance of deciding whether a church is a\npermitted or conditional use of the Property, the district court\ndid not resolve that issue:\n I don’t care if they give you a permitted use\n recognition. If you submit a [parking] plan and\n they approve it and they let you continue, the\n case is over. You get to continue. They’re not\n stopping your religious freedom. I mean, so\n whether you get a permitted use finding from\n them doesn’t really make any difference to me.\n This approach—blurring the distinction between zoning\nuse and parking regulations—led to problems in the\nsummary judgment decision before us. The variances might\nrelieve the church from certain parking regulations, but they\nsay nothing about whether the church’s use of the Property is\npermissible. And a conditional use permit does not moot the\nchurch’s claim that it does not need one and is entitled to be\ntreated as a permitted use as of right. Accordingly, the district\ncourt’s summary judgment decision must be reversed.\n\n 5 The church pleads its RLUIPA equal terms and unreasonable limita-\n\ntions claims as facial attacks on the city’s zoning code. Its substantial\nburden claims appear to be a mix of as applied and facial challenges.\n\fNo. 18-1432 11\n\n A. Ripeness\n The district court granted summary judgment to the city\nbased primarily on the court’s conclusion that the church’s\nclaims were not ripe. The ripeness doctrine arises out of the\nConstitution’s case-or-controversy requirement, as claims\npremised on uncertain or contingent events present justicia-\nbility problems. Wisconsin Right of Life State Political Comm. v.\nBarland, 664 F.3d 139, 148 (7th Cir. 2011); see also 13B CHARLES\nALAN WRIGHT, ET AL., FEDERAL PRACTICE AND PROCEDURE\n§ 3532 (3d ed. Supp. 2018). The doctrine’s underlying\nobjective is to avoid premature adjudication and judicial\nentanglement in abstract disagreements. Pacific Gas & Elec. Co.\nv. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190,\n200–01 (1983). Because ripeness is “peculiarly a question of\ntiming,” a court determines ripeness as of the date of its\ndecision, not the date the lawsuit was filed. Buckley v. Valeo,\n424 U.S. 1, 114–118 (1976) (quoting Regional Rail Reorganization\nAct Cases, 419 U.S. 102, 140 (1974)).6\n As noted above, the district court appears to have\nconcluded the church’s claims were not ripe because the\nchurch failed to request a variance from the city’s off-street\nparking regulations before filing suit. In the district court’s\nview, “instead of formally seeking a variance from the City,\nthe Church sought to bypass the administrative process and,\nin essence, asked for a court-ordered variance.” 309 F. Supp.\n3d 545, 554 (N.D. Ill. 2018). But the district court’s focus on\n\n 6 To the extent the district court determined ripeness as of the date the\n\nchurch filed its complaint, rather than the date of that court’s decision, that\nwas erroneous. Blanchette v. Connecticut Gen. Ins. Corp., 419 U.S. 102, 140\n(1974); cf. 13B CHARLES ALAN WRIGHT, ET AL., FEDERAL PRACTICE AND\nPROCEDURE § 3532.7 (3d ed. Supp. 2018).\n\f12 No. 18-1432\n\nparking variances misapprehends that the church’s legal\nclaims are directed at the zoning code’s use classifications, not\nits parking requirements.\n For example, the church’s equal terms claim is premised\non the city’s interpretation of the zoning code rendering a\nchurch a conditional use in the R-3 districts. According to the\nchurch, the city’s reading would mean there is no district in\nwhich a church would be permitted as of right. The church\nalleges this violates RLUIPA7 because analogous secular uses,\nsuch as theaters, are permitted as of right in districts within\nthe city, but churches are always a conditional use subject to\ncity approval.8 Obtaining a parking variance would not\nrectify this alleged inequity: a theater would still be permitted\nas of right, while a church would remain a conditional use\nthat could be denied a permit or otherwise lose its permission\nto operate. The variance might alleviate burdens imposed by\nthe city’s parking regulations, but it does not address zoning\nuse classifications, which are the subject of this lawsuit.\n Nor would a parking variance solve the church’s unrea-\nsonable limitations claim. The church contends that by\ntreating churches as a conditional use everywhere, and\nproviding no district where they can locate as of right, the city\nhas implemented a land use regulation that “unreasonably\n\n 7The relevant subsection provides: “No government shall impose or\nimplement a land use regulation in a manner that treats a religious assem-\nbly or institution on less than equal terms with a nonreligious assembly or\ninstitution.” 42 U.S.C. 2000cc(b)(1).\n 8 In comparing zoning treatment, a court looks to whether the\nreligious and secular organizations are treated the same with respect to\naccepted, objective regulatory criteria. River of Life Kingdom Ministries v.\nVill. of Hazel Crest, 611 F.3d 367, 371 (7th Cir. 2010).\n\fNo. 18-1432 13\n\nlimits religious assemblies, institutions, or structures within a\njurisdiction.” 42 U.S.C. § 2000cc(b)(3)(B).9 Again, a parking\nvariance would not address the church’s central contention\nabout the legality of its use of the Property.\n Alternatively, the district court’s opinion could be\nconstrued to hold that a plaintiff must apply for a conditional\nuse permit (as opposed to a parking variance) before bringing\nan RLUIPA claim. But that framework does not work either.\nIt would address the legality of the church’s use, but not the\nchurch’s primary contention that operating a church is a\npermitted use. Nevertheless, the city directs us to the\nSupreme Court’s ripeness test for Takings Clause claims,\nwhich requires a plaintiff to obtain a “final decision” from a\nlocal government about how it may use its property before\nripening a claim. Williamson Cty. Reg’l Planning Comm’n v.\nHamilton Bank of Johnson City, 473 U.S. 172, 186 (1985). Some\ncircuit courts have extended Williamson County to RLUIPA\nclaims involving land use issues. See Guatay Christian Fellow-\nship v. Cty. of San Diego, 670 F.3d 957, 976 (9th Cir. 2011); Miles\nChristi Religious Order v. Twp. of Northville, 629 F.3d 533, 537–\n38 (6th Cir. 2010); Murphy v. New Milford Zoning Comm’n, 402\nF.3d 342, 352 (2d Cir. 2005).\n Although we have not addressed this specific question, we\nhave declined to apply Williamson County’s final decision test\nto other non-Takings Clause challenges to local zoning codes.\nTriple G Landfills v. Bd. of Comm’rs of Fountain Cty., 977 F.3d\n\n\n 9 Whether a limitation is reasonable or not must be determined “in\nlight of all the facts, including the actual availability of land and the eco-\nnomics of religious organizations.” Vision Church, 468 F.3d at 990 (quoting\n146 Cong. Rec. E1563 (Sept. 22, 2000) (statement of Rep. Canady)).\n\f14 No. 18-1432\n\n287, 289 (7th Cir. 1992) (final decision test does not apply to\nfacial attacks upon the validity of a zoning ordinance); see also\nForseth v. Vill. of Sussex, 199 F.3d 363, 370–71 (7th Cir. 2000)\n(applying Williamson County to substantive Due Process\nclaim, but not Equal Protection claim). Because the Supreme\nCourt based its holding in Williamson County on “the very\nnature of the inquiry required by the Just Compensation\nClause,” 473 U.S. at 190, extending it to different claims is\nsuspect. See Temple B’Nai Zion, Inc. v. City of Sunny Isles Beach,\n727 F.3d 1349, 1357 (11th Cir. 2013) (declining to apply\nWilliamson County to RLUIPA discrimination claim); Roman\nCatholic Bishop of Springfield v. City of Springfield, 724 F.3d 78,\n92 (1st Cir. 2013) (same); cf. Opulent Life Church v. City of Holly\nSprings, 697 F.3d 279, 287 n.7 (5th Cir. 2012) (noting the issue\nbut declining to take a position on whether Williamson County\napplies to RLUIPA and First Amendment claims).10\n But we need not resolve that question, because the\nchurch’s claims satisfy Williamson County’s final decision test,\neven if it does apply. The record demonstrates the city has\nmade a final decision regarding the church’s zoning use\nclassification. The city went so far as to file the state lawsuit\nseeking an injunction to require the church to either cease\n\n\n\n\n 10The Supreme Court will consider “[w]hether the Court should\nreconsider the portion of Williamson County Regional Planning Commission\nv. Hamilton Bank, 473 U.S. 172, 194–96 (1985), requiring property owners\nto exhaust state court remedies to ripen federal takings claims” in Knick v.\nTwp. of Scott, 862 F.3d 310 (3d Cir. 2017), cert. granted, 138 S. Ct. 1262 (2018)\n(No. 17-647) (argued Jan. 16, 2019).\n\fNo. 18-1432 15\n\noperations or obtain a conditional use permit.11 Unlike in\nMiles Christi, where the municipality remained undecided on\ninterpretation of relevant provisions of its zoning regulations,\n629 F.3d at 538, there is no ambiguity about the city’s\ninterpretation on the permitted versus conditional use\nquestion. Since 2012, the city has always taken the position\nthat churches are a conditional use in the R-3 districts, and\nnothing in the record or the parties’ arguments suggests the\ncity might reconsider that interpretation.\n Moreover, although the church did not formally request a\nparking variance before filing this lawsuit, the church did\napply for a conditional use permit, which the city denied.\nContrast that to the plaintiffs in Murphy, who did not\nchallenge the municipality’s interpretation of its zoning\nregulations or apply for any administrative relief whatsoever.\n402 F.3d at 345 (noting the plaintiffs filed suit two days after\nreceiving a letter from local zoning authorities). The church\ncould have petitioned the city to reconsider its decision, but\npursuit of such relief is not required to make the city’s\ndecision “final.” Williamson Cty., 473 F.3d at 192–93\n(“[T]he finality requirement is concerned with whether the\ninitial decisionmaker has arrived at a definitive position on\nthe issue that inflicts an actual, concrete injury … .”). Six years\ninto this zoning saga, the city’s actions establish that it has\n\n\n 11 It seems the city wishes to pursue its state court enforcement action\n\nbefore demanding the church apply for parking variances, while simulta-\nneously avoiding the church’s RLUIPA claims on the same basis. Cf. World\nOutreach, 591 F.3d at 537 (“[B]y bringing suit against World Outreach, the\nCity chose the forum in which it wanted the organization’s rights adjudi-\ncated; it can hardly be heard to criticize the organization for accepting that\nchoice.”).\n\f16 No. 18-1432\n\nfinally rejected the church’s permitted use interpretation.\nAdditional proceedings before the local zoning authorities\nwill not alter this case’s facts.\n In summary, parking variances do not address the central\ncontroversy between the parties about whether the zoning\ncode treats religious uses on unequal terms with secular uses,\nor places unreasonable limitations on religious exercise. And\nthe city made a final decision to reject the church’s contention\nthat it is a permitted use. The church’s claims are ripe, regard-\nless of whether Williamson County applies.\n B. Mootness\n The district court also ruled that the parking variances and\nconditional use permit mooted the church’s legal claims. A\ncase becomes moot “only when it is impossible for a court to\ngrant any effectual relief whatever to the prevailing party.”\nCampbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 669 (2016) (quoting\nKnox v. Serv. Emp. Int’l Union, Local 1000, 567 U.S. 298, 307\n(2012)). The party asserting mootness bears a “heavy burden\nof proof” in demonstrating it is “absolutely clear that the\nallegedly wrongful behavior could not reasonably be\nexpected to recur.” Freedom From Religion, 885 F.3d at 1051.\nThe district court’s mootness determination suffers from at\nleast two problems.\n First, as described above, neither a parking variance nor a\nconditional use permit resolves the parties’ dispute about\nwhether a church is a permitted or conditional use in the R-3\ndistricts. The district court’s mootness decision is analogous\nto the assertion that a defendant can moot a plaintiff’s claim\nsimply by offering to pay damages, which the Supreme Court\nrejected in Campbell-Ewald. 136 S. Ct. at 670. The church’s\n\fNo. 18-1432 17\n\ncomplaint sought a declaration that the city had violated the\nlaw, an injunction against the city enforcing the zoning code\nto prevent the church from using the Property, and an award\nof money damages. None of that has happened yet, so the case\nis not moot. See Chapman v. First Index, Inc., 796 F.3d 783, 786\n(7th Cir. 2015).12\n Second, no variance or conditional use permit ever went\ninto effect here. The city ordinance purporting to award the\nchurch parking variances states, “This Ordinance shall be\nsigned by the Church to signify its agreement to the terms\nhereof, and this Ordinance is conditional upon the Church\nexecuting the Ordinance.” Markham, Ill., Ordinance No.\n17-0-2168 (Mar. 1, 2017). Likewise, the ordinance purporting\nto grant the church a conditional use permit also required the\nchurch’s signature. Markham, Ill., Ordinance No. 17-0-2169\n(Mar. 1, 2017). But the church never executed either\nordinance. By their own terms, the ordinances are ineffective.\nThus, even if a variance or conditional use permit could moot\nthe church’s claims, neither is present here.\n C. Damages\n The district court also characterized the church’s damages\nclaims as “speculative” and lacking evidentiary support. The\nsummary judgment record contradicts that finding. The\nchurch presented a sworn declaration from its leader, Pastor\n\n\n 12 The availability of a conditional use permit remains relevant in this\ncase, however. For example, such relief from the city impacts the church’s\ndamages claim (which the church acknowledged in the district court), and\na conditional use permit may be the sort of reasonable accommodation to\nwhich the church is entitled on its liability case. We leave those issues for\nthe district court’s consideration on remand.\n\f18 No. 18-1432\n\nMcCracken, describing the injuries the city allegedly inflicted\nupon the church. He detailed how the city’s lawsuit to enjoin\nthe church’s operation had distracted the church’s leadership\nfrom its religious objectives and placed stress on the congre-\ngation. Certainly, the damages for such injuries are not as\neasily quantifiable as a business’s lost profits or a tort victim’s\nmedical bills. Yet, they are within the ambit of compensatory\ndamages, and the district court erred in dismissing them out\nof hand. See Memphis Cmty. School Dist. v. Stachura, 477 U.S.\n299, 307 (1986) (“[C]ompensatory damages may include not\nonly out-of-pocket loss and other monetary harms, but also\nsuch injuries as impairment of reputation, personal humilia-\ntion, and mental anguish and suffering.”) (internal quotation\nand ellipsis omitted).\n Even if the church lacked sufficient evidence to prove its\ndamages to a specific monetary sum, nominal damages\nremain an appropriate means of vindicating rights whose\ndeprivation is difficult to quantify. Guzman v. City of Chicago,\n689 F.3d 740, 748 (7th Cir. 2012); cf. Carey v. Piphus, 435 U.S.\n247, 266 (1978) (recognizing availability of nominal damages\nfor deprivations of civil rights that do not inflict financial\ninjury). The church’s alleged injuries are more than\n“speculative,” and its damages case should have survived\nsummary judgment.\n D. Standing Arguments\n Finally, the city attempts to defend the district court’s\ndecision on an independent ground—the church’s alleged\nlack of standing to pursue its equal terms and unreasonable\n\fNo. 18-1432 19\n\nlimitations claims.13 The city contends the church cannot\ncomplain that other places of public assembly are treated as\npermitted uses in the C-1 and C-2 districts because the church\ndoes not own property in those districts and has never\nattempted to move to them.\n The standing doctrine requires a plaintiff to demonstrate\nit “(1) suffered an injury in fact, (2) that is fairly traceable to\nthe challenged conduct of the defendant, and (3) that is likely\nto be redressed by a favorable judicial decision.” Spokeo, Inc.\nv. Robins, 136 S. Ct. 1540, 1547 (2016). The church meets each\nof those elements. The city’s state court lawsuit to enjoin the\nchurch’s operation is sufficient to demonstrate an injury in\nfact. See Primera Iglesia Bautista Hispana of Boca Raton, Inc. v.\nBroward Cty., 450 F.3d 1295, 1304 (11th Cir. 2006) (municipal\nzoning restriction on use of property constituted an “actual\ninjury”). That injury is directly traceable to the city’s interpre-\ntation of its zoning code and could be redressed by a favorable\njudicial determination.\n The city points to Midrash Sephardi, Inc. v. Town of Surfside,\n366 F.3d 1214 (11th Cir. 2004), to support its argument that an\nRLUIPA plaintiff lacks “standing” to challenge unequal terms\nin a zoning code unless it is presently located in, or has\nconcrete plans to move to, the zoning district where the\ncomparator secular organization is allegedly provided more\nfavorable treatment. Id. at 1224 n.9. Similar to this case, in\nMidrash a municipality attempted to enjoin the operation of\n\n\n 13 Although the city did not challenge the church’s standing to raise\nits unreasonable limitations claim in the district court, challenges to a\nplaintiff’s Article III standing cannot be waived or forfeited. Freedom From\nReligion Found., Inc. v. Nicholson, 536 F.3d 730, 737 (7th Cir. 2008).\n\f20 No. 18-1432\n\ntwo synagogues, which responded by alleging the\nmunicipality’s zoning code violated RLUIPA. Id. at 1220–22.\nThe Eleventh Circuit determined that the synagogues had\nstanding to pursue their claims of a legal right to remain in\ntheir current locations, although they lacked standing to\npursue other discrimination claims regarding the zoning\ntreatment of religious facilities in districts where they were\nnot located. Id. at 1224 & n.9.\n Like the synagogues in Midrash, the church’s legal claims\nare premised on its request to continue to worship at its\npresent site. The church is not an outsider with no stake in the\ncity’s zoning scheme. Although some of the church’s legal\ntheories allege the zoning code nowhere permits churches as\na matter of right, at bottom the church challenges the city’s\ntreatment of churches as conditional uses in the R-3 districts—\nsuch as where the Property is located. In other words, the\nchurch challenges its zoning use categorization at the\nProperty, even as the church argues the zoning code as a\nwhole discriminates against religious uses.\n Such an argument is cognizable, as courts assess the\nentirety of a zoning scheme when evaluating a property\nowner’s RLUIPA claim. See Eagle Cove Camp & Conf. Ctr. v.\nTown of Woodboro, 734 F.3d 673, 680 (7th Cir. 2013) (RLUIPA\nnot violated because plaintiff could locate Bible camp in other\nzoning districts within the municipality); Vision Church, 468\nF.3d at 989 (RLUIPA “exclusion” claim triggered only where\nmunicipality applies “complete and total exclusion of activity\nor expression protected by the First Amendment”).\n In short, the church has sustained a concrete injury result-\ning from the city’s interpretation of which zoning uses are\npermitted in the R-3 districts, and that injury is sufficient to\n\fNo. 18-1432 21\n\ngive the church standing for Article III purposes. The church\nneed not move to another zoning district to acquire standing\nto pursue its claim that it is entitled to stay put.\n III. Conclusion\n For the foregoing reasons, we REVERSE the district court’s\ngrant of summary judgment in favor of the city and REMAND\nfor further proceedings. We encourage the district court to\nbegin by addressing whether operating a church on the\nProperty is a permitted or conditional use under the zoning\ncode.\n Our decision expresses no opinion on the substantive\nmerits of any of the church’s legal claims or on the proper\ninterpretation of the city’s zoning code. The district court did\nnot reach those issues, and we do not decide them\nfor the first time on appeal. Circuit Rule 36 shall apply on\nremand.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4359963/", "author_raw": "BRENNAN, Circuit Judge"}]}	FLAUM	EASTERBROOK	BRENNAN	1		{"FLAUM": ", Circuit", "EASTERBROOK": ", Circuit", "BRENNAN": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4582710/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Church of Our Lord and Savior v. City of Markham, Illinois\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-17\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-1432\nTHE CHURCH OF OUR LORD AND SAVIOR JESUS CHRIST,\n Plaintiff-Appellant,\n v.\n\nCITY OF MARKHAM, ILLINOIS\n Defendant-Appellee.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 1:15-cv-04079 — Ronald A. Guzmán, Judge.\n ____________________\n\n ARGUED OCTOBER 31, 2018 — DECIDED JANUARY 17, 2019\n ____________________\n\n Before FLAUM, EASTERBROOK, and BRENNAN, Circuit Judges.\n BRENNAN, Circuit Judge. In the City of Markham, Illinois,\n16018 South Spaulding Avenue (the “Property”) is home to\nThe Church of Our Lord and Savior Jesus Christ. We use the\nword “home” literally and figuratively: the church converted\na single-family residence on the Property into its house of\nworship. The Property’s location in a residential area, and the\nchurch’s ensuing zoning battles with the city, give rise to this\nlawsuit.\n\f2 No. 18-1432\n\n For more than 15 years, the church’s congregation has\ngathered at the Property for worship services, choir rehears-\nals, Bible studies, and the like. As the church grew, it remod-\neled the house to better accommodate its new purpose. This\nbrought the church into contact with the city’s administration\nthrough permit applications, property inspections, and\nsimilar zoning-related interactions.\n The parties dispute what the city knew about the church’s\nuse of the Property, and when, but such issues are largely\nirrelevant at this juncture. What matters (and is undisputed)\nis that the city sought an injunction in state court to halt the\nchurch’s operation on the Property without a conditional use\npermit, prompting the church to file an application for such a\npermit, which the city denied. All that occurred before this\ncase began.\n Denied a conditional use permit and facing a possible\ncourt order enjoining its operation, the church brought this\nlawsuit challenging the city’s zoning code under the Religious\nLand Use and Institutionalized Persons Act, 42 U.S.C.\n§ 2000cc et seq. (“RLUIPA”), and the Illinois Religious Free-\ndom Restoration Act, 775 ILL. COMP. STAT. 35/1 et seq. The\nchurch contends the city’s zoning code treats religious uses of\nproperty on unequal terms with analogous secular uses and\nunreasonably limits where religious organizations may locate\nin the city. The church also alleges the city’s insistence on a\nconditional use permit has imposed a substantial burden on\nits religious exercise.\n Two years into this litigation, the city argued (for the first\ntime) that the church’s legal claims were not ripe because the\nchurch never applied for variances from applicable parking\nregulations. The district court ordered the church to apply for\n\fNo. 18-1432 3\n\nsuch variances, and the city ultimately awarded them to the\nchurch, along with a conditional use permit. Afterward, the\ndistrict court granted the city summary judgment, ruling the\nchurch’s claims were not ripe when filed and rendered moot.\n We reverse. The district court focused on the church not\napplying for parking variances before the lawsuit. But that\nissue is related only tangentially to the church’s claims, which\nconcern zoning use classifications, not parking. The ripeness\nof the church’s claims does not hinge on pursuit of parking\nvariances that will not resolve them. Nor can a conditional use\npermit from the city moot the church’s claim that such a\npermit is not needed. The key question in this case is whether\noperating a church on the Property is a permitted or condi-\ntional use. The district court did not answer that question, but\nit is the necessary starting point for resolving the church’s\nlegal claims.\n I. Background\n A. The City’s Zoning Regulations\n The city employs a “cumulative” zoning scheme, desig-\nnating 11 categories of “use districts.” CITY OF MARKHAM, ILL.,\nZONING CODE § 156.015. A “use” refers to “[t]he purpose for\nwhich land or premises or a building or structure thereon is\ndesigned, arranged, or intended, or for which it is occupied\nor maintained, let or leased.” Zoning Code § 156.003. The\nvarious use districts are ranked from the highest, most restric-\ntive uses (R-1 One-Family Residential Districts) to the lowest,\nleast restrictive uses (L-3 Motor Freight Terminal Districts).\nCompare Zoning Code §§ 156.050–.056, with §§ 156.210–.224.\nThe scheme is “cumulative” because any use in a higher use\ndistrict is permitted in a lower use district (for example, all\n\f4 No. 18-1432\n\nuses permitted in the residential districts are permitted in the\ncommercial districts). Zoning Code § 156.146(A); see also 1\nPATRICIA E. SALKIN, AMERICAN LAW OF ZONING § 9:14 (5th ed.\nSupp. 2018).\n The zoning code also distinguishes between “permitted”\nuses (which do not require city approval) and “conditional”\nuses (which do). Compare Zoning Code § 156.051 (“The\nfollowing uses are permitted …”), with § 156.052 (“The\nfollowing [uses] may also be permitted upon approval of their\nlocation and development by the Plan Commission …”); see\nalso SALKIN, supra, at § 9:20. If a property owner’s intended use\nis not permitted as of right, the owner must apply to the city\nfor a conditional (or “special”) use permit. Zoning Code\n§ 156.317(A).1 The city’s planning commission evaluates the\napplication and may recommend approval only if “it finds\nthat the issuance of such special use permit is in the public\ninterest and not solely for the interest of the applicant.” Zon-\ning Code § 156.319(B). Final authority on conditional use\npermits rests with the city council, which may grant one only\nif “[t]he proposed use at the particular location requested is\neither necessary or desirable in order to provide a service or a\nfacility which is in the interest of public need and convenience\nand which will contribute to the general welfare of the com-\nmunity.” Zoning Code § 156.320(A).\n The Property is located in an R-3 One-Family Residential\nDistrict, which permits single-family dwellings and “[a]ll\nuses permitted in the R-2 district.” Zoning Code § 156.081.\n\n\n 1 The zoning code uses the terms “conditional use” and “special use”\ninterchangeably. E.g., Zoning Code §§ 156.315–.327. We employ the\nphrase “conditional use.”\n\fNo. 18-1432 5\n\nKeeping with the nesting doll framework of cumulative\nzoning, “[a]ll uses permitted in the R-1 district” are permitted\nin the R-2 districts, so all uses permitted in the R-1 districts\nare also permitted in the R-3 districts. Zoning Code\n§ 156.066(B).\n The zoning code does not expressly provide for any con-\nditional uses in the R-2 or R-3 districts. But it does list five\nconditional uses in the R-1 districts: (1) Schools, (2) “Churches\nand buildings usually associated with similar activities,”\n(3) Public parks, (4) Governmental and utility buildings, and\n(5) Hospitals. Zoning Code § 156.052. That is the only provi-\nsion in the zoning code that mentions “churches” as a condi-\ntional use, and no provision expressly identifies them as a\npermitted use. Other places of public assembly, meanwhile,\nare permitted uses as of right in other districts: “theaters” are\npermitted in C-1 Neighborhood Shopping Districts, Zoning\nCode § 156.146(D)(2), and “auditoriums” are permitted in C-2\nCommunity Shopping Districts. Zoning Code § 156.161(B)(2).\n The zoning code’s use classifications are distinct from its\nparking regulations. In “all districts,” whenever a building is\nto be erected or enlarged, the owner must present a plan for\noff-street parking to be approved by the city’s planning com-\nmission, regardless of whether the property owner’s use is\npermitted or conditional. Zoning Code §§ 156.246–.247. The\nrequired number of off-street parking spaces, however, varies\ndepending on property use. Zoning Code § 156.252.\n B. Renovation of the Property\n Reginald McCracken, the church’s pastor, purchased the\nProperty as a personal residence in 1985. In 2003, the congre-\ngation began meeting regularly at the Property, with ten to\n\f6 No. 18-1432\n\ntwenty people attending Sunday morning services. Today,\naverage attendance for a worship service is about thirty peo-\nple. In 2012, due to growing attendance and an increase in\nreligious activities, the church began a project to renovate the\ngarage into a chapel. The project involved installing a new\nroof, new windows, and pews, and cost approximately\n$40,000.2 Just months after the project’s completion, the city\nfiled suit against the church in Illinois state court, seeking to\nenjoin its operation on the Property without a conditional use\npermit. The city did not issue any citations or formal notices\nto the church beforehand.\n C. 2013 Application for a Conditional Use Permit\n When the state court denied the church’s motion to\ndismiss the city’s lawsuit in March 2013, the church requested\na continuance to apply for a conditional use permit from the\ncity. The state court granted the continuance, simultaneously\nentering an order restricting off-street parking around the\nProperty.3 The church filed its application, but it did not\nrequest any variances from the city’s parking regulations.\n After considering reports from a building inspector and an\nengineering consultant, the city’s planning commission voted\nto recommend that the city council deny the church’s condi-\ntional use application. A week later, the city council\nconcurred and denied the application.\n\n\n 2 The parties’ briefs address numerous disputes about previous per-\nmit applications and whether the church obtained the necessary approvals\nbefore starting its construction project in 2012. Because the merits of this\nappeal do not turn on such issues, we do not delve into them.\n 3The city’s lawsuit in state court has since been stayed indefinitely,\npending resolution of the church’s claims in this case.\n\fNo. 18-1432 7\n\n D. This Lawsuit\n Following the city’s denial of the conditional use permit,\nthe church filed this lawsuit in Illinois state court. When the\nchurch amended its complaint to add an RLUIPA claim, the\ncity removed the case to federal court. The city unsuccessfully\nmoved to dismiss the church’s claims, in both state and\nfederal court, but at the pleading stage never challenged their\nripeness.\n The church’s operative complaint contains four distinct\nclaims: (1) an RLUIPA “equal terms” claim under 42 U.S.C.\n§ 2000cc(b)(1); (2) an RLUIPA “unreasonable limitations”\nclaim under 42 U.S.C. § 2000cc(b)(3)(B); (3) an RLUIPA\n“substantial burden” claim under 42 U.S.C. § 2000cc(a)(1);\nand (4) a claim under Illinois’s Religious Freedom Restoration\nAct, 775 ILL. COMP. STAT. 35/25(d).4\n As to how religious facilities should be classified under\nthe zoning code, the church sees only two possible interpreta-\ntions, either of which renders the city liable. The church’s\npreferred interpretation is that a church is a permitted use of\nthe Property, such that the city’s insistence on a conditional\nuse permit was incorrect and constituted a substantial burden\non the church’s religious exercise. According to the church,\nthe only other possible interpretation is that a church is a\nconditional use in the R-3 districts, which would mean the\nzoning code provides no districts in which religious facilities\n\n\n 4 Because the last two claims are “materially identical,” World Outreach\n\nConference Ctr. v. City of Chicago, 591 F.3d 531, 533 (7th Cir. 2009), we refer\nto them together as the “substantial burden claims.”\n\f8 No. 18-1432\n\nare permitted as of right, thereby violating RLUIPA’s equal\nterms and unreasonable limitations provisions.\n The city reads the zoning code a third way: churches are a\nconditional use in the R-3 districts, but are permitted as of\nright in the city’s commercial and industrial districts\n(although those districts do not expressly list “churches” as a\npermitted use), so there cannot possibly be an equal terms or\nunreasonable limitations problem.\n After discovery closed, the church announced it intended\nto move for summary judgment on the permitted versus\nconditional use question. The district court asked how the city\nhoped to resolve the parties’ dispute, and the city’s attorney\nasserted the church’s claims were not ripe because the church\nhad never submitted a parking plan for the city to consider.\nSubsequently, the district court struck the parties’ cross\nmotions for summary judgment and ordered the church to\napply for a parking variance. The district court specified,\nhowever, that it was “not opining on whether Plaintiff needs,\nor the City should approve, any particular variations or\nconditional use permits Plaintiff may seek.”\n The church complied with the district court’s order by\nfiling an “Application for Variances” with the city, in which it\nexpressly stated it was not seeking zoning approval, based on\nits contention that a church is a permitted use not requiring\nconditional use approval. The church did request, however,\n“whatever variances the City believes are necessary to allow\nthe Church to continue with its existing off-street parking.”\nThe church also acknowledged it could not “afford to bring\nits existing parking into compliance with the strict letter of the\nCity’s Ordinance,” such that “variances for parking are\n\fNo. 18-1432 9\n\nrequired in order to accommodate and allow the congregation\nto continue its religious assembly on the property.”\n The city council responded by passing two ordinances,\nwhich purported to grant the church parking variances and a\nconditional use permit. But each required the church’s signa-\nture accepting all terms and conditions imposed. The church\nnever executed either ordinance.\n When the parties returned to the district court following\nthis process, the district court granted the city summary\njudgment on all counts. The court held that the church’s\nclaims were not ripe when filed because the church had not\napplied for parking variances, and the church’s claims for\nfuture damages became moot as a result of the conditional use\npermit. The district court ruled that any claim for past dam-\nages was “speculative” and failed because the claims had not\nripened until the church submitted its variance application.\nThe church appealed.\n II. Discussion\n We review a grant of summary judgment de novo. Vision\nChurch v. Vill. of Long Grove, 468 F.3d 975, 988 (7th Cir. 2006).\nDe novo review also applies to a district court’s ripeness and\nmootness determinations, although we accept its underlying\nfactual findings absent clear error. Freedom From Religion\nFound., Inc. v. Concord Cmty. Sch., 885 F.3d 1038, 1045 (7th Cir.\n2018) (mootness); Metropolitan Milwaukee Ass’n of Commerce v.\nMilwaukee Cty., 325 F.3d 879, 881 (7th Cir. 2003) (ripeness).\n The church’s operative complaint alleges the zoning code\ntreats religious uses of property on unequal terms with secu-\nlar uses, unreasonably limits where religious organizations\n\f10 No. 18-1432\n\nmay locate, and substantially burdens its religious exercise.5\nImportantly, the church’s equal terms and unreasonable\nlimitations claims hinge on the city’s interpretation of its\nzoning code rendering churches a conditional use in the R-3\ndistricts, rather than a permitted use as of right. If, however,\nthe church’s interpretation that it is a permitted use is correct,\nthen its equal terms and unreasonable limitations claims fall\naway, leaving only its substantial burden claims.\n Despite the significance of deciding whether a church is a\npermitted or conditional use of the Property, the district court\ndid not resolve that issue:\n I don’t care if they give you a permitted use\n recognition. If you submit a [parking] plan and\n they approve it and they let you continue, the\n case is over. You get to continue. They’re not\n stopping your religious freedom. I mean, so\n whether you get a permitted use finding from\n them doesn’t really make any difference to me.\n This approach—blurring the distinction between zoning\nuse and parking regulations—led to problems in the\nsummary judgment decision before us. The variances might\nrelieve the church from certain parking regulations, but they\nsay nothing about whether the church’s use of the Property is\npermissible. And a conditional use permit does not moot the\nchurch’s claim that it does not need one and is entitled to be\ntreated as a permitted use as of right. Accordingly, the district\ncourt’s summary judgment decision must be reversed.\n\n 5 The church pleads its RLUIPA equal terms and unreasonable limita-\n\ntions claims as facial attacks on the city’s zoning code. Its substantial\nburden claims appear to be a mix of as applied and facial challenges.\n\fNo. 18-1432 11\n\n A. Ripeness\n The district court granted summary judgment to the city\nbased primarily on the court’s conclusion that the church’s\nclaims were not ripe. The ripeness doctrine arises out of the\nConstitution’s case-or-controversy requirement, as claims\npremised on uncertain or contingent events present justicia-\nbility problems. Wisconsin Right of Life State Political Comm. v.\nBarland, 664 F.3d 139, 148 (7th Cir. 2011); see also 13B CHARLES\nALAN WRIGHT, ET AL., FEDERAL PRACTICE AND PROCEDURE\n§ 3532 (3d ed. Supp. 2018). The doctrine’s underlying\nobjective is to avoid premature adjudication and judicial\nentanglement in abstract disagreements. Pacific Gas & Elec. Co.\nv. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190,\n200–01 (1983). Because ripeness is “peculiarly a question of\ntiming,” a court determines ripeness as of the date of its\ndecision, not the date the lawsuit was filed. Buckley v. Valeo,\n424 U.S. 1, 114–118 (1976) (quoting Regional Rail Reorganization\nAct Cases, 419 U.S. 102, 140 (1974)).6\n As noted above, the district court appears to have\nconcluded the church’s claims were not ripe because the\nchurch failed to request a variance from the city’s off-street\nparking regulations before filing suit. In the district court’s\nview, “instead of formally seeking a variance from the City,\nthe Church sought to bypass the administrative process and,\nin essence, asked for a court-ordered variance.” 309 F. Supp.\n3d 545, 554 (N.D. Ill. 2018). But the district court’s focus on\n\n 6 To the extent the district court determined ripeness as of the date the\n\nchurch filed its complaint, rather than the date of that court’s decision, that\nwas erroneous. Blanchette v. Connecticut Gen. Ins. Corp., 419 U.S. 102, 140\n(1974); cf. 13B CHARLES ALAN WRIGHT, ET AL., FEDERAL PRACTICE AND\nPROCEDURE § 3532.7 (3d ed. Supp. 2018).\n\f12 No. 18-1432\n\nparking variances misapprehends that the church’s legal\nclaims are directed at the zoning code’s use classifications, not\nits parking requirements.\n For example, the church’s equal terms claim is premised\non the city’s interpretation of the zoning code rendering a\nchurch a conditional use in the R-3 districts. According to the\nchurch, the city’s reading would mean there is no district in\nwhich a church would be permitted as of right. The church\nalleges this violates RLUIPA7 because analogous secular uses,\nsuch as theaters, are permitted as of right in districts within\nthe city, but churches are always a conditional use subject to\ncity approval.8 Obtaining a parking variance would not\nrectify this alleged inequity: a theater would still be permitted\nas of right, while a church would remain a conditional use\nthat could be denied a permit or otherwise lose its permission\nto operate. The variance might alleviate burdens imposed by\nthe city’s parking regulations, but it does not address zoning\nuse classifications, which are the subject of this lawsuit.\n Nor would a parking variance solve the church’s unrea-\nsonable limitations claim. The church contends that by\ntreating churches as a conditional use everywhere, and\nproviding no district where they can locate as of right, the city\nhas implemented a land use regulation that “unreasonably\n\n 7The relevant subsection provides: “No government shall impose or\nimplement a land use regulation in a manner that treats a religious assem-\nbly or institution on less than equal terms with a nonreligious assembly or\ninstitution.” 42 U.S.C. 2000cc(b)(1).\n 8 In comparing zoning treatment, a court looks to whether the\nreligious and secular organizations are treated the same with respect to\naccepted, objective regulatory criteria. River of Life Kingdom Ministries v.\nVill. of Hazel Crest, 611 F.3d 367, 371 (7th Cir. 2010).\n\fNo. 18-1432 13\n\nlimits religious assemblies, institutions, or structures within a\njurisdiction.” 42 U.S.C. § 2000cc(b)(3)(B).9 Again, a parking\nvariance would not address the church’s central contention\nabout the legality of its use of the Property.\n Alternatively, the district court’s opinion could be\nconstrued to hold that a plaintiff must apply for a conditional\nuse permit (as opposed to a parking variance) before bringing\nan RLUIPA claim. But that framework does not work either.\nIt would address the legality of the church’s use, but not the\nchurch’s primary contention that operating a church is a\npermitted use. Nevertheless, the city directs us to the\nSupreme Court’s ripeness test for Takings Clause claims,\nwhich requires a plaintiff to obtain a “final decision” from a\nlocal government about how it may use its property before\nripening a claim. Williamson Cty. Reg’l Planning Comm’n v.\nHamilton Bank of Johnson City, 473 U.S. 172, 186 (1985). Some\ncircuit courts have extended Williamson County to RLUIPA\nclaims involving land use issues. See Guatay Christian Fellow-\nship v. Cty. of San Diego, 670 F.3d 957, 976 (9th Cir. 2011); Miles\nChristi Religious Order v. Twp. of Northville, 629 F.3d 533, 537–\n38 (6th Cir. 2010); Murphy v. New Milford Zoning Comm’n, 402\nF.3d 342, 352 (2d Cir. 2005).\n Although we have not addressed this specific question, we\nhave declined to apply Williamson County’s final decision test\nto other non-Takings Clause challenges to local zoning codes.\nTriple G Landfills v. Bd. of Comm’rs of Fountain Cty., 977 F.3d\n\n\n 9 Whether a limitation is reasonable or not must be determined “in\nlight of all the facts, including the actual availability of land and the eco-\nnomics of religious organizations.” Vision Church, 468 F.3d at 990 (quoting\n146 Cong. Rec. E1563 (Sept. 22, 2000) (statement of Rep. Canady)).\n\f14 No. 18-1432\n\n287, 289 (7th Cir. 1992) (final decision test does not apply to\nfacial attacks upon the validity of a zoning ordinance); see also\nForseth v. Vill. of Sussex, 199 F.3d 363, 370–71 (7th Cir. 2000)\n(applying Williamson County to substantive Due Process\nclaim, but not Equal Protection claim). Because the Supreme\nCourt based its holding in Williamson County on “the very\nnature of the inquiry required by the Just Compensation\nClause,” 473 U.S. at 190, extending it to different claims is\nsuspect. See Temple B’Nai Zion, Inc. v. City of Sunny Isles Beach,\n727 F.3d 1349, 1357 (11th Cir. 2013) (declining to apply\nWilliamson County to RLUIPA discrimination claim); Roman\nCatholic Bishop of Springfield v. City of Springfield, 724 F.3d 78,\n92 (1st Cir. 2013) (same); cf. Opulent Life Church v. City of Holly\nSprings, 697 F.3d 279, 287 n.7 (5th Cir. 2012) (noting the issue\nbut declining to take a position on whether Williamson County\napplies to RLUIPA and First Amendment claims).10\n But we need not resolve that question, because the\nchurch’s claims satisfy Williamson County’s final decision test,\neven if it does apply. The record demonstrates the city has\nmade a final decision regarding the church’s zoning use\nclassification. The city went so far as to file the state lawsuit\nseeking an injunction to require the church to either cease\n\n\n\n\n 10The Supreme Court will consider “[w]hether the Court should\nreconsider the portion of Williamson County Regional Planning Commission\nv. Hamilton Bank, 473 U.S. 172, 194–96 (1985), requiring property owners\nto exhaust state court remedies to ripen federal takings claims” in Knick v.\nTwp. of Scott, 862 F.3d 310 (3d Cir. 2017), cert. granted, 138 S. Ct. 1262 (2018)\n(No. 17-647) (argued Jan. 16, 2019).\n\fNo. 18-1432 15\n\noperations or obtain a conditional use permit.11 Unlike in\nMiles Christi, where the municipality remained undecided on\ninterpretation of relevant provisions of its zoning regulations,\n629 F.3d at 538, there is no ambiguity about the city’s\ninterpretation on the permitted versus conditional use\nquestion. Since 2012, the city has always taken the position\nthat churches are a conditional use in the R-3 districts, and\nnothing in the record or the parties’ arguments suggests the\ncity might reconsider that interpretation.\n Moreover, although the church did not formally request a\nparking variance before filing this lawsuit, the church did\napply for a conditional use permit, which the city denied.\nContrast that to the plaintiffs in Murphy, who did not\nchallenge the municipality’s interpretation of its zoning\nregulations or apply for any administrative relief whatsoever.\n402 F.3d at 345 (noting the plaintiffs filed suit two days after\nreceiving a letter from local zoning authorities). The church\ncould have petitioned the city to reconsider its decision, but\npursuit of such relief is not required to make the city’s\ndecision “final.” Williamson Cty., 473 F.3d at 192–93\n(“[T]he finality requirement is concerned with whether the\ninitial decisionmaker has arrived at a definitive position on\nthe issue that inflicts an actual, concrete injury … .”). Six years\ninto this zoning saga, the city’s actions establish that it has\n\n\n 11 It seems the city wishes to pursue its state court enforcement action\n\nbefore demanding the church apply for parking variances, while simulta-\nneously avoiding the church’s RLUIPA claims on the same basis. Cf. World\nOutreach, 591 F.3d at 537 (“[B]y bringing suit against World Outreach, the\nCity chose the forum in which it wanted the organization’s rights adjudi-\ncated; it can hardly be heard to criticize the organization for accepting that\nchoice.”).\n\f16 No. 18-1432\n\nfinally rejected the church’s permitted use interpretation.\nAdditional proceedings before the local zoning authorities\nwill not alter this case’s facts.\n In summary, parking variances do not address the central\ncontroversy between the parties about whether the zoning\ncode treats religious uses on unequal terms with secular uses,\nor places unreasonable limitations on religious exercise. And\nthe city made a final decision to reject the church’s contention\nthat it is a permitted use. The church’s claims are ripe, regard-\nless of whether Williamson County applies.\n B. Mootness\n The district court also ruled that the parking variances and\nconditional use permit mooted the church’s legal claims. A\ncase becomes moot “only when it is impossible for a court to\ngrant any effectual relief whatever to the prevailing party.”\nCampbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 669 (2016) (quoting\nKnox v. Serv. Emp. Int’l Union, Local 1000, 567 U.S. 298, 307\n(2012)). The party asserting mootness bears a “heavy burden\nof proof” in demonstrating it is “absolutely clear that the\nallegedly wrongful behavior could not reasonably be\nexpected to recur.” Freedom From Religion, 885 F.3d at 1051.\nThe district court’s mootness determination suffers from at\nleast two problems.\n First, as described above, neither a parking variance nor a\nconditional use permit resolves the parties’ dispute about\nwhether a church is a permitted or conditional use in the R-3\ndistricts. The district court’s mootness decision is analogous\nto the assertion that a defendant can moot a plaintiff’s claim\nsimply by offering to pay damages, which the Supreme Court\nrejected in Campbell-Ewald. 136 S. Ct. at 670. The church’s\n\fNo. 18-1432 17\n\ncomplaint sought a declaration that the city had violated the\nlaw, an injunction against the city enforcing the zoning code\nto prevent the church from using the Property, and an award\nof money damages. None of that has happened yet, so the case\nis not moot. See Chapman v. First Index, Inc., 796 F.3d 783, 786\n(7th Cir. 2015).12\n Second, no variance or conditional use permit ever went\ninto effect here. The city ordinance purporting to award the\nchurch parking variances states, “This Ordinance shall be\nsigned by the Church to signify its agreement to the terms\nhereof, and this Ordinance is conditional upon the Church\nexecuting the Ordinance.” Markham, Ill., Ordinance No.\n17-0-2168 (Mar. 1, 2017). Likewise, the ordinance purporting\nto grant the church a conditional use permit also required the\nchurch’s signature. Markham, Ill., Ordinance No. 17-0-2169\n(Mar. 1, 2017). But the church never executed either\nordinance. By their own terms, the ordinances are ineffective.\nThus, even if a variance or conditional use permit could moot\nthe church’s claims, neither is present here.\n C. Damages\n The district court also characterized the church’s damages\nclaims as “speculative” and lacking evidentiary support. The\nsummary judgment record contradicts that finding. The\nchurch presented a sworn declaration from its leader, Pastor\n\n\n 12 The availability of a conditional use permit remains relevant in this\ncase, however. For example, such relief from the city impacts the church’s\ndamages claim (which the church acknowledged in the district court), and\na conditional use permit may be the sort of reasonable accommodation to\nwhich the church is entitled on its liability case. We leave those issues for\nthe district court’s consideration on remand.\n\f18 No. 18-1432\n\nMcCracken, describing the injuries the city allegedly inflicted\nupon the church. He detailed how the city’s lawsuit to enjoin\nthe church’s operation had distracted the church’s leadership\nfrom its religious objectives and placed stress on the congre-\ngation. Certainly, the damages for such injuries are not as\neasily quantifiable as a business’s lost profits or a tort victim’s\nmedical bills. Yet, they are within the ambit of compensatory\ndamages, and the district court erred in dismissing them out\nof hand. See Memphis Cmty. School Dist. v. Stachura, 477 U.S.\n299, 307 (1986) (“[C]ompensatory damages may include not\nonly out-of-pocket loss and other monetary harms, but also\nsuch injuries as impairment of reputation, personal humilia-\ntion, and mental anguish and suffering.”) (internal quotation\nand ellipsis omitted).\n Even if the church lacked sufficient evidence to prove its\ndamages to a specific monetary sum, nominal damages\nremain an appropriate means of vindicating rights whose\ndeprivation is difficult to quantify. Guzman v. City of Chicago,\n689 F.3d 740, 748 (7th Cir. 2012); cf. Carey v. Piphus, 435 U.S.\n247, 266 (1978) (recognizing availability of nominal damages\nfor deprivations of civil rights that do not inflict financial\ninjury). The church’s alleged injuries are more than\n“speculative,” and its damages case should have survived\nsummary judgment.\n D. Standing Arguments\n Finally, the city attempts to defend the district court’s\ndecision on an independent ground—the church’s alleged\nlack of standing to pursue its equal terms and unreasonable\n\fNo. 18-1432 19\n\nlimitations claims.13 The city contends the church cannot\ncomplain that other places of public assembly are treated as\npermitted uses in the C-1 and C-2 districts because the church\ndoes not own property in those districts and has never\nattempted to move to them.\n The standing doctrine requires a plaintiff to demonstrate\nit “(1) suffered an injury in fact, (2) that is fairly traceable to\nthe challenged conduct of the defendant, and (3) that is likely\nto be redressed by a favorable judicial decision.” Spokeo, Inc.\nv. Robins, 136 S. Ct. 1540, 1547 (2016). The church meets each\nof those elements. The city’s state court lawsuit to enjoin the\nchurch’s operation is sufficient to demonstrate an injury in\nfact. See Primera Iglesia Bautista Hispana of Boca Raton, Inc. v.\nBroward Cty., 450 F.3d 1295, 1304 (11th Cir. 2006) (municipal\nzoning restriction on use of property constituted an “actual\ninjury”). That injury is directly traceable to the city’s interpre-\ntation of its zoning code and could be redressed by a favorable\njudicial determination.\n The city points to Midrash Sephardi, Inc. v. Town of Surfside,\n366 F.3d 1214 (11th Cir. 2004), to support its argument that an\nRLUIPA plaintiff lacks “standing” to challenge unequal terms\nin a zoning code unless it is presently located in, or has\nconcrete plans to move to, the zoning district where the\ncomparator secular organization is allegedly provided more\nfavorable treatment. Id. at 1224 n.9. Similar to this case, in\nMidrash a municipality attempted to enjoin the operation of\n\n\n 13 Although the city did not challenge the church’s standing to raise\nits unreasonable limitations claim in the district court, challenges to a\nplaintiff’s Article III standing cannot be waived or forfeited. Freedom From\nReligion Found., Inc. v. Nicholson, 536 F.3d 730, 737 (7th Cir. 2008).\n\f20 No. 18-1432\n\ntwo synagogues, which responded by alleging the\nmunicipality’s zoning code violated RLUIPA. Id. at 1220–22.\nThe Eleventh Circuit determined that the synagogues had\nstanding to pursue their claims of a legal right to remain in\ntheir current locations, although they lacked standing to\npursue other discrimination claims regarding the zoning\ntreatment of religious facilities in districts where they were\nnot located. Id. at 1224 & n.9.\n Like the synagogues in Midrash, the church’s legal claims\nare premised on its request to continue to worship at its\npresent site. The church is not an outsider with no stake in the\ncity’s zoning scheme. Although some of the church’s legal\ntheories allege the zoning code nowhere permits churches as\na matter of right, at bottom the church challenges the city’s\ntreatment of churches as conditional uses in the R-3 districts—\nsuch as where the Property is located. In other words, the\nchurch challenges its zoning use categorization at the\nProperty, even as the church argues the zoning code as a\nwhole discriminates against religious uses.\n Such an argument is cognizable, as courts assess the\nentirety of a zoning scheme when evaluating a property\nowner’s RLUIPA claim. See Eagle Cove Camp & Conf. Ctr. v.\nTown of Woodboro, 734 F.3d 673, 680 (7th Cir. 2013) (RLUIPA\nnot violated because plaintiff could locate Bible camp in other\nzoning districts within the municipality); Vision Church, 468\nF.3d at 989 (RLUIPA “exclusion” claim triggered only where\nmunicipality applies “complete and total exclusion of activity\nor expression protected by the First Amendment”).\n In short, the church has sustained a concrete injury result-\ning from the city’s interpretation of which zoning uses are\npermitted in the R-3 districts, and that injury is sufficient to\n\fNo. 18-1432 21\n\ngive the church standing for Article III purposes. The church\nneed not move to another zoning district to acquire standing\nto pursue its claim that it is entitled to stay put.\n III. Conclusion\n For the foregoing reasons, we REVERSE the district court’s\ngrant of summary judgment in favor of the city and REMAND\nfor further proceedings. We encourage the district court to\nbegin by addressing whether operating a church on the\nProperty is a permitted or conditional use under the zoning\ncode.\n Our decision expresses no opinion on the substantive\nmerits of any of the church’s legal claims or on the proper\ninterpretation of the city’s zoning code. The district court did\nnot reach those issues, and we do not decide them\nfor the first time on appeal. Circuit Rule 36 shall apply on\nremand.\n[END_CASE]", "role": "user" } ]
4,582,805		Jason Lund v. United States	2019-01-17	16-2381	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before KANNE and SYKES, Circuit Judges, and DARROW, Dis- trict Judge.", "parties": "", "opinions": [{"author": "trict Judge", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 16-2381\nJASON M. LUND,\n Petitioner-Appellant,\n v.\n\nUNITED STATES OF AMERICA,\n Respondent-Appellee.\n ____________________\n\n Appeal from the United States District Court for the\n Eastern District of Wisconsin.\n No. 16-CV-119 — J.P. Stadtmueller, Judge.\n ____________________\n\n ARGUED OCTOBER 25, 2017— DECIDED JANUARY 17, 2019\n ____________________\n\n Before KANNE and SYKES, Circuit Judges, and DARROW, Dis-\ntrict Judge. ∗\n DARROW, District Judge. Petitioner Jason Lund appeals the\ndenial of his motion to vacate, set aside, or correct his sentence\nbrought pursuant to 28 U.S.C. § 2255. The district court con-\ncluded that Lund’s motion was untimely under each of the\n\n\n ∗ Of the Central District of Illinois, sitting by designation.\n\f2 No. 16-2381\n\npotential statutes of limitations and that Lund could not in-\nvoke the actual innocence exception to the statute of limita-\ntions because his claim of actual innocence was based on a\ncase that interpreted the substantive law of his conviction:\nBurrage v. United States, 571 U.S. 204 (2014). Lund challenges\nonly this conclusion, arguing that a claim of actual innocence\ncan be based on a change in the law. To resolve this case, how-\never, we need not rule on this issue. Even assuming actual in-\nnocence can be premised on a change in the law, Lund cannot\ntake advantage of the exception because he rests both his ac-\ntual innocence claim and his claim for relief on Burrage. We\naﬃrm.\n I. Background\n In 2008, Jason Lund and thirty others were charged via\nfederal indictment with conspiracy to distribute heroin in vi-\nolation of 21 U.S.C. § 841(a)(1). The indictment alleged that\nthe conspiracy resulted in overdose deaths of ﬁve individuals,\nincluding Andrew Goetzke and David Knuth, in violation of\n21 U.S.C. § 841(b)(1)(A). Lund pleaded guilty to the single-\ncount indictment, but denied responsibility for the deaths of\nGoetzke and Knuth, arguing that he had withdrawn from the\nconspiracy prior to their deaths. The district court judge re-\njected that argument and sentenced him in accordance with\nthe twenty-year mandatory minimum—sometimes referred\nto as the “death results” enhancement or penalty—under\n§ 841(b)(1)(A). Lund appealed and his sentence was aﬃrmed.\nUnited States v. Walker, 721 F.3d 828, 841 (7th Cir. 2013), judg-\nment vacated on other grounds, Lawler v. United States, 572 U.S.\n1111 (2014) (mem.). He did not ﬁle a petition for a writ of cer-\ntiorari, so his sentence became ﬁnal on October 1, 2013.\n\fNo. 16-2381 3\n\n On February 1, 2016, Lund ﬁled a motion to vacate, set\naside, or correct his sentence pursuant to 28 U.S.C. § 2255\nbased on two changes in the law occurring after his convic-\ntion. See Burrage, 571 U.S. at 211; Alleyne v. United States, 570\nU.S. 99, 102 (2013). In Burrage, 571 U.S. at 211, the Supreme\nCourt held that ﬁnding a defendant guilty of the “death re-\nsults” penalty “requires proof ‘that the harm would not have\noccurred in the absence of—that is, but for—the defendant’s\nconduct.’” (quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570\nU.S. 338, 346–47 (2013)). This but-for causation rule applies\nretroactively. Krieger v. United States, 842 F.3d 490, 499–500\n(7th Cir. 2016). In essence, Lund argued that under Burrage,\nhe is actually innocent of the “death results” enhancement be-\ncause the heroin he provided to Goetzke and Knuth was not\nthe but-for cause of their deaths. Dist. Ct. Order 7, Br. Appel-\nlant App. 1–15. Alleyne, which concerns who must determine\na fact that increases the mandatory minimum, is not retroac-\ntive, Crayton v. United States, 799 F.3d 623, 624 (7th Cir. 2015),\nso the district court denied any relief based on Alleyne, Dist.\nCt. Order 9. 1\n The government moved to dismiss the motion as un-\ntimely. The district court found that there was no statutory\nbasis to ﬁnd his petition timely—it was ﬁled more than a year\nafter his conviction became ﬁnal, 28 U.S.C. § 2255(f)(1); more\nthan a year after the Supreme Court decided Burrage, id.\n§ 2255(f)(3); and more than a year after the evidence he pre-\nsented could have been discovered, id. § 2255(f)(4). Dist. Ct.\nOrder 4–7. The district court held that Lund was not entitled\n\n\n 1 Lund concedes on appeal that Alleyne is not retroactive, so it is “of\nlimited use now.” Br. Appellant 25.\n\f4 No. 16-2381\n\nto equitable tolling. Id. at 12–13. 2 It also held that he was una-\nble to use the actual innocence gateway exception to the stat-\nute of limitations, which would allow the court to hear his\notherwise barred claims, because this Court had not deter-\nmined “that an intervening change in law supports a claim of\nactual innocence.” Id. at 10. The court did not reach the merits\nof Lund’s claims, but it granted him a certiﬁcate of appeala-\nbility. This appeal followed.\n II. Discussion\n We review the district court’s legal conclusions de novo.\nColeman v. Lemke, 739 F.3d 342, 349 (7th Cir. 2014). Lund raises\none legal issue: whether an intervening change in law can\nserve as the basis for an actual innocence claim.\n “[A]ctual innocence, if proved, serves as a gateway\nthrough which a petitioner may pass whether the impedi-\nment is a procedural bar ... or ... expiration of the statute of\nlimitations.” McQuiggin v. Perkins, 569 U.S. 383, 386 (2013); see\nSchlup v. Delo, 513 U.S. 298, 317 (1995) (holding that a peti-\ntioner who procedurally defaults his claims can overcome the\nprocedural bar if he successfully raises a claim of actual inno-\ncence—that is, if he “raise[s] suﬃcient doubt about [his] guilt\nto undermine conﬁdence in the result”). The actual innocence\ngateway exception is “grounded in the ‘equitable discretion’\nof habeas courts to see that federal constitutional errors do not\nresult in the incarceration of innocent persons.” Herrera v. Col-\nlins, 506 U.S. 390, 404 (1993) (quoting McCleskey v. Zant, 499\nU.S. 467, 502 (1991)). To establish actual innocence, “a peti-\ntioner must show that it is more likely than not that no\n\n 2 Lund does not challenge the district court’s ruling on equitable toll-\ning, so we do not address it.\n\fNo. 16-2381 5\n\nreasonable juror would have found petitioner guilty beyond\na reasonable doubt.” Schlup, 513 U.S. at 327.\n The actual innocence exception certainly applies where\nthe petitioner has new evidence, like DNA evidence. See\nHouse v. Bell, 547 U.S. 518, 537 (2006). But this Court has never\nexplicitly held that it can be used in situations where a subse-\nquent change to the scope of a law renders the conduct the\npetitioner was convicted for no longer criminal. See Gladney v.\nPollard, 799 F.3d 889, 897 (7th Cir. 2015).\n We need not take a position on this issue, because even\nassuming that actual innocence could be predicated on a case\nsubstantively interpreting the law under which a petitioner\nwas convicted, it would not extend to this case.\n Lund is attempting to use Burrage as his claim for actual\ninnocence and his claim for relief on the merits. This is a prob-\nlem for two reasons. First, it is “doubtful” that a petitioner’s\nactual innocence claim and claim for relief on the merits can\nbe the same. See Perrone v. United States, 889 F.3d 898, 903 (7th\nCir. 2018). And second, even if it can, in this situation it would\ncompletely undermine the statute of limitations for bringing\ninitial § 2255 motions within one year from the date a new\nright is recognized by the Supreme Court.\n The actual innocence exception is merely a gateway\nthrough which a court can consider a petitioner’s otherwise\nbarred claims on their merits. See Herrera, 506 U.S. at 404–05.\nFraming the exception as a gateway presupposes that a peti-\ntioner will have underlying claims separate from the claim\nthat he is actually innocent. “The Supreme Court has not rec-\nognized a petitioner’s right to habeas relief based on a stand-\nalone claim of actual innocence.” Gladney, 799 F.3d at 895.\n\f6 No. 16-2381\n\nMoreover, “[t]he point of the exception is to ensure that ‘fed-\neral constitutional errors do not result in the incarceration of\ninnocent persons.’” Perrone, 889 F.3d at 903 (quoting Herrera,\n506 U.S. at 404). This suggests that the underlying claim must\nbe a constitutional claim, rather than a statutory claim like\nBurrage.\n Lund argues that he does not need to bring a separate con-\nstitutional claim because Burrage is itself cognizable in § 2255\nproceedings. By contrast, he argues, a state prisoner would\nneed to bring an underlying constitutional claim because nei-\nther a claim of actual innocence based on new evidence nor a\nclaim based on a state law error would be cognizable in a §\n2254 proceeding. We do not ﬁnd this persuasive. The Supreme\nCourt has never mentioned a diﬀerence in the purpose or ap-\nplication of the actual innocence exception between § 2254\nand § 2255 proceedings. Therefore, we concur that it is\n“doubtful” that Lund’s Burrage claim could be both his argu-\nment for actual innocence and his claim for relief. See id. at\n902–03 (holding that the parties’ assumption that a claim of\nactual innocence based on Burrage could do “double duty”\nwas “doubtful”).\n Lund also argues that he has raised underlying constitu-\ntional claims. We disagree. Lund claims that his pro se plead-\nings should have been construed to include an ineﬀective as-\nsistance of counsel claim. In his reply brief below, he argued\nthat his “main cause for not putting forth [a] petition in light\nof the Supreme Court’s decision in Alleyne [wa]s Ineﬀective\nAssistance of Counsel.” Reply Br. Pet’r 2, ECF No. 8; 3 see id. at\n3 (“With these facts in mind, if the court were to enforce\n\n 3 This ECF number refers to the district court’s docket.\n\fNo. 16-2381 7\n\nprocedural default/untimeliness, the result would be a funda-\nmental miscarriage of justice.”). The district court held that\nLund “d[id] not assert an ineﬀective assistance of counsel\nclaim in his petition.” Dist. Ct. Order 3 n.3. It read Lund’s ar-\ngument regarding his attorney’s eﬀectiveness to relate only to\nhis position that his claims should have been equitably tolled.\nId. Lund asserts that the district court should have construed\nhis reference to ineﬀective assistance of counsel as a request\nto amend his § 2255 claim to include a separate ineﬀective as-\nsistance of counsel claim, which then should have been\ngranted.\n The district court did not err. True, pro se pleadings must\nbe liberally construed, see McNeil v. United States, 508 U.S. 106,\n113 (1993), but Lund never indicated—neither in the title of\nhis response, nor its substance—that he was seeking to add a\nclaim. Instead, it appears from his pro se ﬁlings that he was\nseeking to use ineﬀective assistance of counsel as cause to ex-\ncuse his procedural default and untimeliness. Therefore, the\ndistrict court need not have construed Lund’s response as a\nrequest to amend. 4\n More to the point, allowing Burrage to serve as both\nLund’s basis for actual innocence and his claim for relief on\nthe merits directly contracts a Congressionally-imposed stat-\nute of limitations. McQuiggin, 569 U.S. at 386, involved the\ntime limit in 28 U.S.C. § 2244(d)(1)(D), which starts the clock\n\n 4 Lund also argues that his motion should have been construed to in-\nclude a Due Process claim based on Burrage. We will not consider this\nargument because it was raised for the first time in his reply brief, see\nUnited States v. Wescott, 576 F.3d 347, 354 (7th Cir. 2009), and because it\nwas not raised below, see Freeland v. Enodis Corp., 540 F.3d 721, 731 (7th\nCir. 2008).\n\f8 No. 16-2381\n\nfor the one-year limitation on the date when the facts of the\nclaim could have been discovered. Lund’s Burrage claim, by\ncontrast, is barred by the statute of limitations which prohibits\npetitioners from bringing habeas claims based on rights rec-\nognized by the Supreme Court, and made retroactively appli-\ncable to cases on collateral review, more than one year after\nthe right was recognized by the Court. See 28 U.S.C.\n§ 2255(f)(3).\n In McQuiggin, 569 U.S. at 397, the Supreme Court ex-\nplained that, as there is “no clear command [in § 2244(d)(1)]\ncountering the courts’ equitable authority to invoke the mis-\ncarriage of justice exception,” it survived the enactment of the\nAntiterrorism and Eﬀective Death Penalty Act of 1996\n(“AEDPA”), at least as it relates to the statutes of limitations\ncontained within that section. The Court noted, however, that\nother provisions of AEDPA did contain language modifying\nthe actual innocence exception. Compare Schlup, 513 U.S. at 327\n(“[A] petitioner must show that it is more likely than not that\nno reasonable juror would have found petitioner guilty be-\nyond a reasonable doubt.”), with § 2244(b)(1)(B) (providing\nthat a claim presented in a successive habeas petition that was\nnot presented in a prior § 2254 petition will be dismissed un-\nless the facts establish by clear and convincing evidence that\nno reasonable factﬁnder would have found the applicant\nguilty of the underlying oﬀense).\n Likewise, here, there is a clear statutory command limiting\ncourts’ equitable discretion to use the actual innocence gate-\nway to excuse failure to comply with § 2255(f)(3). Congress\nset a one-year limit for petitioners to bring § 2255 motions\nbased on new rights recognized by the Supreme Court. Al-\nlowing a claim like Burrage to serve as both the basis for actual\n\fNo. 16-2381 9\n\ninnocence and the basis for relief would render this statute of\nlimitations superﬂuous, at least as it applies to newly recog-\nnized statutory rights. Every time there is a retroactive inter-\npretation of a criminal law, petitioners convicted under it\nwould have an initial § 2255 claim based on the new interpre-\ntation indeﬁnitely.\n We aﬃrm the district court’s decision denying Lund’s\n§ 2255 motion as untimely. Lund’s § 2255 motion was conced-\nedly untimely and we hold that he cannot use the actual in-\nnocence gateway to overcome the statute of limitations in this\ncase.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4360058/", "author_raw": "trict Judge"}]}	KANNE	SYKES	DARROW	1		{"KANNE": ", Circuit", "SYKES": ", Circuit", "DARROW": ", Dis trict"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4582805/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Jason Lund v. United States\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-17\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 16-2381\nJASON M. LUND,\n Petitioner-Appellant,\n v.\n\nUNITED STATES OF AMERICA,\n Respondent-Appellee.\n ____________________\n\n Appeal from the United States District Court for the\n Eastern District of Wisconsin.\n No. 16-CV-119 — J.P. Stadtmueller, Judge.\n ____________________\n\n ARGUED OCTOBER 25, 2017— DECIDED JANUARY 17, 2019\n ____________________\n\n Before KANNE and SYKES, Circuit Judges, and DARROW, Dis-\ntrict Judge. ∗\n DARROW, District Judge. Petitioner Jason Lund appeals the\ndenial of his motion to vacate, set aside, or correct his sentence\nbrought pursuant to 28 U.S.C. § 2255. The district court con-\ncluded that Lund’s motion was untimely under each of the\n\n\n ∗ Of the Central District of Illinois, sitting by designation.\n\f2 No. 16-2381\n\npotential statutes of limitations and that Lund could not in-\nvoke the actual innocence exception to the statute of limita-\ntions because his claim of actual innocence was based on a\ncase that interpreted the substantive law of his conviction:\nBurrage v. United States, 571 U.S. 204 (2014). Lund challenges\nonly this conclusion, arguing that a claim of actual innocence\ncan be based on a change in the law. To resolve this case, how-\never, we need not rule on this issue. Even assuming actual in-\nnocence can be premised on a change in the law, Lund cannot\ntake advantage of the exception because he rests both his ac-\ntual innocence claim and his claim for relief on Burrage. We\naﬃrm.\n I. Background\n In 2008, Jason Lund and thirty others were charged via\nfederal indictment with conspiracy to distribute heroin in vi-\nolation of 21 U.S.C. § 841(a)(1). The indictment alleged that\nthe conspiracy resulted in overdose deaths of ﬁve individuals,\nincluding Andrew Goetzke and David Knuth, in violation of\n21 U.S.C. § 841(b)(1)(A). Lund pleaded guilty to the single-\ncount indictment, but denied responsibility for the deaths of\nGoetzke and Knuth, arguing that he had withdrawn from the\nconspiracy prior to their deaths. The district court judge re-\njected that argument and sentenced him in accordance with\nthe twenty-year mandatory minimum—sometimes referred\nto as the “death results” enhancement or penalty—under\n§ 841(b)(1)(A). Lund appealed and his sentence was aﬃrmed.\nUnited States v. Walker, 721 F.3d 828, 841 (7th Cir. 2013), judg-\nment vacated on other grounds, Lawler v. United States, 572 U.S.\n1111 (2014) (mem.). He did not ﬁle a petition for a writ of cer-\ntiorari, so his sentence became ﬁnal on October 1, 2013.\n\fNo. 16-2381 3\n\n On February 1, 2016, Lund ﬁled a motion to vacate, set\naside, or correct his sentence pursuant to 28 U.S.C. § 2255\nbased on two changes in the law occurring after his convic-\ntion. See Burrage, 571 U.S. at 211; Alleyne v. United States, 570\nU.S. 99, 102 (2013). In Burrage, 571 U.S. at 211, the Supreme\nCourt held that ﬁnding a defendant guilty of the “death re-\nsults” penalty “requires proof ‘that the harm would not have\noccurred in the absence of—that is, but for—the defendant’s\nconduct.’” (quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570\nU.S. 338, 346–47 (2013)). This but-for causation rule applies\nretroactively. Krieger v. United States, 842 F.3d 490, 499–500\n(7th Cir. 2016). In essence, Lund argued that under Burrage,\nhe is actually innocent of the “death results” enhancement be-\ncause the heroin he provided to Goetzke and Knuth was not\nthe but-for cause of their deaths. Dist. Ct. Order 7, Br. Appel-\nlant App. 1–15. Alleyne, which concerns who must determine\na fact that increases the mandatory minimum, is not retroac-\ntive, Crayton v. United States, 799 F.3d 623, 624 (7th Cir. 2015),\nso the district court denied any relief based on Alleyne, Dist.\nCt. Order 9. 1\n The government moved to dismiss the motion as un-\ntimely. The district court found that there was no statutory\nbasis to ﬁnd his petition timely—it was ﬁled more than a year\nafter his conviction became ﬁnal, 28 U.S.C. § 2255(f)(1); more\nthan a year after the Supreme Court decided Burrage, id.\n§ 2255(f)(3); and more than a year after the evidence he pre-\nsented could have been discovered, id. § 2255(f)(4). Dist. Ct.\nOrder 4–7. The district court held that Lund was not entitled\n\n\n 1 Lund concedes on appeal that Alleyne is not retroactive, so it is “of\nlimited use now.” Br. Appellant 25.\n\f4 No. 16-2381\n\nto equitable tolling. Id. at 12–13. 2 It also held that he was una-\nble to use the actual innocence gateway exception to the stat-\nute of limitations, which would allow the court to hear his\notherwise barred claims, because this Court had not deter-\nmined “that an intervening change in law supports a claim of\nactual innocence.” Id. at 10. The court did not reach the merits\nof Lund’s claims, but it granted him a certiﬁcate of appeala-\nbility. This appeal followed.\n II. Discussion\n We review the district court’s legal conclusions de novo.\nColeman v. Lemke, 739 F.3d 342, 349 (7th Cir. 2014). Lund raises\none legal issue: whether an intervening change in law can\nserve as the basis for an actual innocence claim.\n “[A]ctual innocence, if proved, serves as a gateway\nthrough which a petitioner may pass whether the impedi-\nment is a procedural bar ... or ... expiration of the statute of\nlimitations.” McQuiggin v. Perkins, 569 U.S. 383, 386 (2013); see\nSchlup v. Delo, 513 U.S. 298, 317 (1995) (holding that a peti-\ntioner who procedurally defaults his claims can overcome the\nprocedural bar if he successfully raises a claim of actual inno-\ncence—that is, if he “raise[s] suﬃcient doubt about [his] guilt\nto undermine conﬁdence in the result”). The actual innocence\ngateway exception is “grounded in the ‘equitable discretion’\nof habeas courts to see that federal constitutional errors do not\nresult in the incarceration of innocent persons.” Herrera v. Col-\nlins, 506 U.S. 390, 404 (1993) (quoting McCleskey v. Zant, 499\nU.S. 467, 502 (1991)). To establish actual innocence, “a peti-\ntioner must show that it is more likely than not that no\n\n 2 Lund does not challenge the district court’s ruling on equitable toll-\ning, so we do not address it.\n\fNo. 16-2381 5\n\nreasonable juror would have found petitioner guilty beyond\na reasonable doubt.” Schlup, 513 U.S. at 327.\n The actual innocence exception certainly applies where\nthe petitioner has new evidence, like DNA evidence. See\nHouse v. Bell, 547 U.S. 518, 537 (2006). But this Court has never\nexplicitly held that it can be used in situations where a subse-\nquent change to the scope of a law renders the conduct the\npetitioner was convicted for no longer criminal. See Gladney v.\nPollard, 799 F.3d 889, 897 (7th Cir. 2015).\n We need not take a position on this issue, because even\nassuming that actual innocence could be predicated on a case\nsubstantively interpreting the law under which a petitioner\nwas convicted, it would not extend to this case.\n Lund is attempting to use Burrage as his claim for actual\ninnocence and his claim for relief on the merits. This is a prob-\nlem for two reasons. First, it is “doubtful” that a petitioner’s\nactual innocence claim and claim for relief on the merits can\nbe the same. See Perrone v. United States, 889 F.3d 898, 903 (7th\nCir. 2018). And second, even if it can, in this situation it would\ncompletely undermine the statute of limitations for bringing\ninitial § 2255 motions within one year from the date a new\nright is recognized by the Supreme Court.\n The actual innocence exception is merely a gateway\nthrough which a court can consider a petitioner’s otherwise\nbarred claims on their merits. See Herrera, 506 U.S. at 404–05.\nFraming the exception as a gateway presupposes that a peti-\ntioner will have underlying claims separate from the claim\nthat he is actually innocent. “The Supreme Court has not rec-\nognized a petitioner’s right to habeas relief based on a stand-\nalone claim of actual innocence.” Gladney, 799 F.3d at 895.\n\f6 No. 16-2381\n\nMoreover, “[t]he point of the exception is to ensure that ‘fed-\neral constitutional errors do not result in the incarceration of\ninnocent persons.’” Perrone, 889 F.3d at 903 (quoting Herrera,\n506 U.S. at 404). This suggests that the underlying claim must\nbe a constitutional claim, rather than a statutory claim like\nBurrage.\n Lund argues that he does not need to bring a separate con-\nstitutional claim because Burrage is itself cognizable in § 2255\nproceedings. By contrast, he argues, a state prisoner would\nneed to bring an underlying constitutional claim because nei-\nther a claim of actual innocence based on new evidence nor a\nclaim based on a state law error would be cognizable in a §\n2254 proceeding. We do not ﬁnd this persuasive. The Supreme\nCourt has never mentioned a diﬀerence in the purpose or ap-\nplication of the actual innocence exception between § 2254\nand § 2255 proceedings. Therefore, we concur that it is\n“doubtful” that Lund’s Burrage claim could be both his argu-\nment for actual innocence and his claim for relief. See id. at\n902–03 (holding that the parties’ assumption that a claim of\nactual innocence based on Burrage could do “double duty”\nwas “doubtful”).\n Lund also argues that he has raised underlying constitu-\ntional claims. We disagree. Lund claims that his pro se plead-\nings should have been construed to include an ineﬀective as-\nsistance of counsel claim. In his reply brief below, he argued\nthat his “main cause for not putting forth [a] petition in light\nof the Supreme Court’s decision in Alleyne [wa]s Ineﬀective\nAssistance of Counsel.” Reply Br. Pet’r 2, ECF No. 8; 3 see id. at\n3 (“With these facts in mind, if the court were to enforce\n\n 3 This ECF number refers to the district court’s docket.\n\fNo. 16-2381 7\n\nprocedural default/untimeliness, the result would be a funda-\nmental miscarriage of justice.”). The district court held that\nLund “d[id] not assert an ineﬀective assistance of counsel\nclaim in his petition.” Dist. Ct. Order 3 n.3. It read Lund’s ar-\ngument regarding his attorney’s eﬀectiveness to relate only to\nhis position that his claims should have been equitably tolled.\nId. Lund asserts that the district court should have construed\nhis reference to ineﬀective assistance of counsel as a request\nto amend his § 2255 claim to include a separate ineﬀective as-\nsistance of counsel claim, which then should have been\ngranted.\n The district court did not err. True, pro se pleadings must\nbe liberally construed, see McNeil v. United States, 508 U.S. 106,\n113 (1993), but Lund never indicated—neither in the title of\nhis response, nor its substance—that he was seeking to add a\nclaim. Instead, it appears from his pro se ﬁlings that he was\nseeking to use ineﬀective assistance of counsel as cause to ex-\ncuse his procedural default and untimeliness. Therefore, the\ndistrict court need not have construed Lund’s response as a\nrequest to amend. 4\n More to the point, allowing Burrage to serve as both\nLund’s basis for actual innocence and his claim for relief on\nthe merits directly contracts a Congressionally-imposed stat-\nute of limitations. McQuiggin, 569 U.S. at 386, involved the\ntime limit in 28 U.S.C. § 2244(d)(1)(D), which starts the clock\n\n 4 Lund also argues that his motion should have been construed to in-\nclude a Due Process claim based on Burrage. We will not consider this\nargument because it was raised for the first time in his reply brief, see\nUnited States v. Wescott, 576 F.3d 347, 354 (7th Cir. 2009), and because it\nwas not raised below, see Freeland v. Enodis Corp., 540 F.3d 721, 731 (7th\nCir. 2008).\n\f8 No. 16-2381\n\nfor the one-year limitation on the date when the facts of the\nclaim could have been discovered. Lund’s Burrage claim, by\ncontrast, is barred by the statute of limitations which prohibits\npetitioners from bringing habeas claims based on rights rec-\nognized by the Supreme Court, and made retroactively appli-\ncable to cases on collateral review, more than one year after\nthe right was recognized by the Court. See 28 U.S.C.\n§ 2255(f)(3).\n In McQuiggin, 569 U.S. at 397, the Supreme Court ex-\nplained that, as there is “no clear command [in § 2244(d)(1)]\ncountering the courts’ equitable authority to invoke the mis-\ncarriage of justice exception,” it survived the enactment of the\nAntiterrorism and Eﬀective Death Penalty Act of 1996\n(“AEDPA”), at least as it relates to the statutes of limitations\ncontained within that section. The Court noted, however, that\nother provisions of AEDPA did contain language modifying\nthe actual innocence exception. Compare Schlup, 513 U.S. at 327\n(“[A] petitioner must show that it is more likely than not that\nno reasonable juror would have found petitioner guilty be-\nyond a reasonable doubt.”), with § 2244(b)(1)(B) (providing\nthat a claim presented in a successive habeas petition that was\nnot presented in a prior § 2254 petition will be dismissed un-\nless the facts establish by clear and convincing evidence that\nno reasonable factﬁnder would have found the applicant\nguilty of the underlying oﬀense).\n Likewise, here, there is a clear statutory command limiting\ncourts’ equitable discretion to use the actual innocence gate-\nway to excuse failure to comply with § 2255(f)(3). Congress\nset a one-year limit for petitioners to bring § 2255 motions\nbased on new rights recognized by the Supreme Court. Al-\nlowing a claim like Burrage to serve as both the basis for actual\n\fNo. 16-2381 9\n\ninnocence and the basis for relief would render this statute of\nlimitations superﬂuous, at least as it applies to newly recog-\nnized statutory rights. Every time there is a retroactive inter-\npretation of a criminal law, petitioners convicted under it\nwould have an initial § 2255 claim based on the new interpre-\ntation indeﬁnitely.\n We aﬃrm the district court’s decision denying Lund’s\n§ 2255 motion as untimely. Lund’s § 2255 motion was conced-\nedly untimely and we hold that he cannot use the actual in-\nnocence gateway to overcome the statute of limitations in this\ncase.\n[END_CASE]", "role": "user" } ]
4,582,806		Church of Our Lord and Savior v. City of Markham, Illinois	2019-01-17	18-1432	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before FLAUM, EASTERBROOK, and BRENNAN, Circuit Judges.", "parties": "", "opinions": [{"author": "BRENNAN, Circuit Judge", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-1432\nTHE CHURCH OF OUR LORD AND SAVIOR JESUS CHRIST,\n Plaintiff-Appellant,\n v.\n\nCITY OF MARKHAM, ILLINOIS\n Defendant-Appellee.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 1:15-cv-04079 — Ronald A. Guzmán, Judge.\n ____________________\n\n ARGUED OCTOBER 31, 2018 — DECIDED JANUARY 17, 2019\n ____________________\n\n Before FLAUM, EASTERBROOK, and BRENNAN, Circuit Judges.\n BRENNAN, Circuit Judge. In the City of Markham, Illinois,\n16018 South Spaulding Avenue (the “Property”) is home to\nThe Church of Our Lord and Savior Jesus Christ. We use the\nword “home” literally and figuratively: the church converted\na single-family residence on the Property into its house of\nworship. The Property’s location in a residential area, and the\nchurch’s ensuing zoning battles with the city, give rise to this\nlawsuit.\n\f2 No. 18-1432\n\n For more than 15 years, the church’s congregation has\ngathered at the Property for worship services, choir rehears-\nals, Bible studies, and the like. As the church grew, it remod-\neled the house to better accommodate its new purpose. This\nbrought the church into contact with the city’s administration\nthrough permit applications, property inspections, and\nsimilar zoning-related interactions.\n The parties dispute what the city knew about the church’s\nuse of the Property, and when, but such issues are largely\nirrelevant at this juncture. What matters (and is undisputed)\nis that the city sought an injunction in state court to halt the\nchurch’s operation on the Property without a conditional use\npermit, prompting the church to file an application for such a\npermit, which the city denied. All that occurred before this\ncase began.\n Denied a conditional use permit and facing a possible\ncourt order enjoining its operation, the church brought this\nlawsuit challenging the city’s zoning code under the Religious\nLand Use and Institutionalized Persons Act, 42 U.S.C.\n§ 2000cc et seq. (“RLUIPA”), and the Illinois Religious Free-\ndom Restoration Act, 775 ILL. COMP. STAT. 35/1 et seq. The\nchurch contends the city’s zoning code treats religious uses of\nproperty on unequal terms with analogous secular uses and\nunreasonably limits where religious organizations may locate\nin the city. The church also alleges the city’s insistence on a\nconditional use permit has imposed a substantial burden on\nits religious exercise.\n Two years into this litigation, the city argued (for the first\ntime) that the church’s legal claims were not ripe because the\nchurch never applied for variances from applicable parking\nregulations. The district court ordered the church to apply for\n\fNo. 18-1432 3\n\nsuch variances, and the city ultimately awarded them to the\nchurch, along with a conditional use permit. Afterward, the\ndistrict court granted the city summary judgment, ruling the\nchurch’s claims were not ripe when filed and rendered moot.\n We reverse. The district court focused on the church not\napplying for parking variances before the lawsuit. But that\nissue is related only tangentially to the church’s claims, which\nconcern zoning use classifications, not parking. The ripeness\nof the church’s claims does not hinge on pursuit of parking\nvariances that will not resolve them. Nor can a conditional use\npermit from the city moot the church’s claim that such a\npermit is not needed. The key question in this case is whether\noperating a church on the Property is a permitted or condi-\ntional use. The district court did not answer that question, but\nit is the necessary starting point for resolving the church’s\nlegal claims.\n I. Background\n A. The City’s Zoning Regulations\n The city employs a “cumulative” zoning scheme, desig-\nnating 11 categories of “use districts.” CITY OF MARKHAM, ILL.,\nZONING CODE § 156.015. A “use” refers to “[t]he purpose for\nwhich land or premises or a building or structure thereon is\ndesigned, arranged, or intended, or for which it is occupied\nor maintained, let or leased.” Zoning Code § 156.003. The\nvarious use districts are ranked from the highest, most restric-\ntive uses (R-1 One-Family Residential Districts) to the lowest,\nleast restrictive uses (L-3 Motor Freight Terminal Districts).\nCompare Zoning Code §§ 156.050–.056, with §§ 156.210–.224.\nThe scheme is “cumulative” because any use in a higher use\ndistrict is permitted in a lower use district (for example, all\n\f4 No. 18-1432\n\nuses permitted in the residential districts are permitted in the\ncommercial districts). Zoning Code § 156.146(A); see also 1\nPATRICIA E. SALKIN, AMERICAN LAW OF ZONING § 9:14 (5th ed.\nSupp. 2018).\n The zoning code also distinguishes between “permitted”\nuses (which do not require city approval) and “conditional”\nuses (which do). Compare Zoning Code § 156.051 (“The\nfollowing uses are permitted …”), with § 156.052 (“The\nfollowing [uses] may also be permitted upon approval of their\nlocation and development by the Plan Commission …”); see\nalso SALKIN, supra, at § 9:20. If a property owner’s intended use\nis not permitted as of right, the owner must apply to the city\nfor a conditional (or “special”) use permit. Zoning Code\n§ 156.317(A).1 The city’s planning commission evaluates the\napplication and may recommend approval only if “it finds\nthat the issuance of such special use permit is in the public\ninterest and not solely for the interest of the applicant.” Zon-\ning Code § 156.319(B). Final authority on conditional use\npermits rests with the city council, which may grant one only\nif “[t]he proposed use at the particular location requested is\neither necessary or desirable in order to provide a service or a\nfacility which is in the interest of public need and convenience\nand which will contribute to the general welfare of the com-\nmunity.” Zoning Code § 156.320(A).\n The Property is located in an R-3 One-Family Residential\nDistrict, which permits single-family dwellings and “[a]ll\nuses permitted in the R-2 district.” Zoning Code § 156.081.\n\n\n 1 The zoning code uses the terms “conditional use” and “special use”\ninterchangeably. E.g., Zoning Code §§ 156.315–.327. We employ the\nphrase “conditional use.”\n\fNo. 18-1432 5\n\nKeeping with the nesting doll framework of cumulative\nzoning, “[a]ll uses permitted in the R-1 district” are permitted\nin the R-2 districts, so all uses permitted in the R-1 districts\nare also permitted in the R-3 districts. Zoning Code\n§ 156.066(B).\n The zoning code does not expressly provide for any con-\nditional uses in the R-2 or R-3 districts. But it does list five\nconditional uses in the R-1 districts: (1) Schools, (2) “Churches\nand buildings usually associated with similar activities,”\n(3) Public parks, (4) Governmental and utility buildings, and\n(5) Hospitals. Zoning Code § 156.052. That is the only provi-\nsion in the zoning code that mentions “churches” as a condi-\ntional use, and no provision expressly identifies them as a\npermitted use. Other places of public assembly, meanwhile,\nare permitted uses as of right in other districts: “theaters” are\npermitted in C-1 Neighborhood Shopping Districts, Zoning\nCode § 156.146(D)(2), and “auditoriums” are permitted in C-2\nCommunity Shopping Districts. Zoning Code § 156.161(B)(2).\n The zoning code’s use classifications are distinct from its\nparking regulations. In “all districts,” whenever a building is\nto be erected or enlarged, the owner must present a plan for\noff-street parking to be approved by the city’s planning com-\nmission, regardless of whether the property owner’s use is\npermitted or conditional. Zoning Code §§ 156.246–.247. The\nrequired number of off-street parking spaces, however, varies\ndepending on property use. Zoning Code § 156.252.\n B. Renovation of the Property\n Reginald McCracken, the church’s pastor, purchased the\nProperty as a personal residence in 1985. In 2003, the congre-\ngation began meeting regularly at the Property, with ten to\n\f6 No. 18-1432\n\ntwenty people attending Sunday morning services. Today,\naverage attendance for a worship service is about thirty peo-\nple. In 2012, due to growing attendance and an increase in\nreligious activities, the church began a project to renovate the\ngarage into a chapel. The project involved installing a new\nroof, new windows, and pews, and cost approximately\n$40,000.2 Just months after the project’s completion, the city\nfiled suit against the church in Illinois state court, seeking to\nenjoin its operation on the Property without a conditional use\npermit. The city did not issue any citations or formal notices\nto the church beforehand.\n C. 2013 Application for a Conditional Use Permit\n When the state court denied the church’s motion to\ndismiss the city’s lawsuit in March 2013, the church requested\na continuance to apply for a conditional use permit from the\ncity. The state court granted the continuance, simultaneously\nentering an order restricting off-street parking around the\nProperty.3 The church filed its application, but it did not\nrequest any variances from the city’s parking regulations.\n After considering reports from a building inspector and an\nengineering consultant, the city’s planning commission voted\nto recommend that the city council deny the church’s condi-\ntional use application. A week later, the city council\nconcurred and denied the application.\n\n\n 2 The parties’ briefs address numerous disputes about previous per-\nmit applications and whether the church obtained the necessary approvals\nbefore starting its construction project in 2012. Because the merits of this\nappeal do not turn on such issues, we do not delve into them.\n 3The city’s lawsuit in state court has since been stayed indefinitely,\npending resolution of the church’s claims in this case.\n\fNo. 18-1432 7\n\n D. This Lawsuit\n Following the city’s denial of the conditional use permit,\nthe church filed this lawsuit in Illinois state court. When the\nchurch amended its complaint to add an RLUIPA claim, the\ncity removed the case to federal court. The city unsuccessfully\nmoved to dismiss the church’s claims, in both state and\nfederal court, but at the pleading stage never challenged their\nripeness.\n The church’s operative complaint contains four distinct\nclaims: (1) an RLUIPA “equal terms” claim under 42 U.S.C.\n§ 2000cc(b)(1); (2) an RLUIPA “unreasonable limitations”\nclaim under 42 U.S.C. § 2000cc(b)(3)(B); (3) an RLUIPA\n“substantial burden” claim under 42 U.S.C. § 2000cc(a)(1);\nand (4) a claim under Illinois’s Religious Freedom Restoration\nAct, 775 ILL. COMP. STAT. 35/25(d).4\n As to how religious facilities should be classified under\nthe zoning code, the church sees only two possible interpreta-\ntions, either of which renders the city liable. The church’s\npreferred interpretation is that a church is a permitted use of\nthe Property, such that the city’s insistence on a conditional\nuse permit was incorrect and constituted a substantial burden\non the church’s religious exercise. According to the church,\nthe only other possible interpretation is that a church is a\nconditional use in the R-3 districts, which would mean the\nzoning code provides no districts in which religious facilities\n\n\n 4 Because the last two claims are “materially identical,” World Outreach\n\nConference Ctr. v. City of Chicago, 591 F.3d 531, 533 (7th Cir. 2009), we refer\nto them together as the “substantial burden claims.”\n\f8 No. 18-1432\n\nare permitted as of right, thereby violating RLUIPA’s equal\nterms and unreasonable limitations provisions.\n The city reads the zoning code a third way: churches are a\nconditional use in the R-3 districts, but are permitted as of\nright in the city’s commercial and industrial districts\n(although those districts do not expressly list “churches” as a\npermitted use), so there cannot possibly be an equal terms or\nunreasonable limitations problem.\n After discovery closed, the church announced it intended\nto move for summary judgment on the permitted versus\nconditional use question. The district court asked how the city\nhoped to resolve the parties’ dispute, and the city’s attorney\nasserted the church’s claims were not ripe because the church\nhad never submitted a parking plan for the city to consider.\nSubsequently, the district court struck the parties’ cross\nmotions for summary judgment and ordered the church to\napply for a parking variance. The district court specified,\nhowever, that it was “not opining on whether Plaintiff needs,\nor the City should approve, any particular variations or\nconditional use permits Plaintiff may seek.”\n The church complied with the district court’s order by\nfiling an “Application for Variances” with the city, in which it\nexpressly stated it was not seeking zoning approval, based on\nits contention that a church is a permitted use not requiring\nconditional use approval. The church did request, however,\n“whatever variances the City believes are necessary to allow\nthe Church to continue with its existing off-street parking.”\nThe church also acknowledged it could not “afford to bring\nits existing parking into compliance with the strict letter of the\nCity’s Ordinance,” such that “variances for parking are\n\fNo. 18-1432 9\n\nrequired in order to accommodate and allow the congregation\nto continue its religious assembly on the property.”\n The city council responded by passing two ordinances,\nwhich purported to grant the church parking variances and a\nconditional use permit. But each required the church’s signa-\nture accepting all terms and conditions imposed. The church\nnever executed either ordinance.\n When the parties returned to the district court following\nthis process, the district court granted the city summary\njudgment on all counts. The court held that the church’s\nclaims were not ripe when filed because the church had not\napplied for parking variances, and the church’s claims for\nfuture damages became moot as a result of the conditional use\npermit. The district court ruled that any claim for past dam-\nages was “speculative” and failed because the claims had not\nripened until the church submitted its variance application.\nThe church appealed.\n II. Discussion\n We review a grant of summary judgment de novo. Vision\nChurch v. Vill. of Long Grove, 468 F.3d 975, 988 (7th Cir. 2006).\nDe novo review also applies to a district court’s ripeness and\nmootness determinations, although we accept its underlying\nfactual findings absent clear error. Freedom From Religion\nFound., Inc. v. Concord Cmty. Sch., 885 F.3d 1038, 1045 (7th Cir.\n2018) (mootness); Metropolitan Milwaukee Ass’n of Commerce v.\nMilwaukee Cty., 325 F.3d 879, 881 (7th Cir. 2003) (ripeness).\n The church’s operative complaint alleges the zoning code\ntreats religious uses of property on unequal terms with secu-\nlar uses, unreasonably limits where religious organizations\n\f10 No. 18-1432\n\nmay locate, and substantially burdens its religious exercise.5\nImportantly, the church’s equal terms and unreasonable\nlimitations claims hinge on the city’s interpretation of its\nzoning code rendering churches a conditional use in the R-3\ndistricts, rather than a permitted use as of right. If, however,\nthe church’s interpretation that it is a permitted use is correct,\nthen its equal terms and unreasonable limitations claims fall\naway, leaving only its substantial burden claims.\n Despite the significance of deciding whether a church is a\npermitted or conditional use of the Property, the district court\ndid not resolve that issue:\n I don’t care if they give you a permitted use\n recognition. If you submit a [parking] plan and\n they approve it and they let you continue, the\n case is over. You get to continue. They’re not\n stopping your religious freedom. I mean, so\n whether you get a permitted use finding from\n them doesn’t really make any difference to me.\n This approach—blurring the distinction between zoning\nuse and parking regulations—led to problems in the\nsummary judgment decision before us. The variances might\nrelieve the church from certain parking regulations, but they\nsay nothing about whether the church’s use of the Property is\npermissible. And a conditional use permit does not moot the\nchurch’s claim that it does not need one and is entitled to be\ntreated as a permitted use as of right. Accordingly, the district\ncourt’s summary judgment decision must be reversed.\n\n 5 The church pleads its RLUIPA equal terms and unreasonable limita-\n\ntions claims as facial attacks on the city’s zoning code. Its substantial\nburden claims appear to be a mix of as applied and facial challenges.\n\fNo. 18-1432 11\n\n A. Ripeness\n The district court granted summary judgment to the city\nbased primarily on the court’s conclusion that the church’s\nclaims were not ripe. The ripeness doctrine arises out of the\nConstitution’s case-or-controversy requirement, as claims\npremised on uncertain or contingent events present justicia-\nbility problems. Wisconsin Right of Life State Political Comm. v.\nBarland, 664 F.3d 139, 148 (7th Cir. 2011); see also 13B CHARLES\nALAN WRIGHT, ET AL., FEDERAL PRACTICE AND PROCEDURE\n§ 3532 (3d ed. Supp. 2018). The doctrine’s underlying\nobjective is to avoid premature adjudication and judicial\nentanglement in abstract disagreements. Pacific Gas & Elec. Co.\nv. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190,\n200–01 (1983). Because ripeness is “peculiarly a question of\ntiming,” a court determines ripeness as of the date of its\ndecision, not the date the lawsuit was filed. Buckley v. Valeo,\n424 U.S. 1, 114–118 (1976) (quoting Regional Rail Reorganization\nAct Cases, 419 U.S. 102, 140 (1974)).6\n As noted above, the district court appears to have\nconcluded the church’s claims were not ripe because the\nchurch failed to request a variance from the city’s off-street\nparking regulations before filing suit. In the district court’s\nview, “instead of formally seeking a variance from the City,\nthe Church sought to bypass the administrative process and,\nin essence, asked for a court-ordered variance.” 309 F. Supp.\n3d 545, 554 (N.D. Ill. 2018). But the district court’s focus on\n\n 6 To the extent the district court determined ripeness as of the date the\n\nchurch filed its complaint, rather than the date of that court’s decision, that\nwas erroneous. Blanchette v. Connecticut Gen. Ins. Corp., 419 U.S. 102, 140\n(1974); cf. 13B CHARLES ALAN WRIGHT, ET AL., FEDERAL PRACTICE AND\nPROCEDURE § 3532.7 (3d ed. Supp. 2018).\n\f12 No. 18-1432\n\nparking variances misapprehends that the church’s legal\nclaims are directed at the zoning code’s use classifications, not\nits parking requirements.\n For example, the church’s equal terms claim is premised\non the city’s interpretation of the zoning code rendering a\nchurch a conditional use in the R-3 districts. According to the\nchurch, the city’s reading would mean there is no district in\nwhich a church would be permitted as of right. The church\nalleges this violates RLUIPA7 because analogous secular uses,\nsuch as theaters, are permitted as of right in districts within\nthe city, but churches are always a conditional use subject to\ncity approval.8 Obtaining a parking variance would not\nrectify this alleged inequity: a theater would still be permitted\nas of right, while a church would remain a conditional use\nthat could be denied a permit or otherwise lose its permission\nto operate. The variance might alleviate burdens imposed by\nthe city’s parking regulations, but it does not address zoning\nuse classifications, which are the subject of this lawsuit.\n Nor would a parking variance solve the church’s unrea-\nsonable limitations claim. The church contends that by\ntreating churches as a conditional use everywhere, and\nproviding no district where they can locate as of right, the city\nhas implemented a land use regulation that “unreasonably\n\n 7The relevant subsection provides: “No government shall impose or\nimplement a land use regulation in a manner that treats a religious assem-\nbly or institution on less than equal terms with a nonreligious assembly or\ninstitution.” 42 U.S.C. 2000cc(b)(1).\n 8 In comparing zoning treatment, a court looks to whether the\nreligious and secular organizations are treated the same with respect to\naccepted, objective regulatory criteria. River of Life Kingdom Ministries v.\nVill. of Hazel Crest, 611 F.3d 367, 371 (7th Cir. 2010).\n\fNo. 18-1432 13\n\nlimits religious assemblies, institutions, or structures within a\njurisdiction.” 42 U.S.C. § 2000cc(b)(3)(B).9 Again, a parking\nvariance would not address the church’s central contention\nabout the legality of its use of the Property.\n Alternatively, the district court’s opinion could be\nconstrued to hold that a plaintiff must apply for a conditional\nuse permit (as opposed to a parking variance) before bringing\nan RLUIPA claim. But that framework does not work either.\nIt would address the legality of the church’s use, but not the\nchurch’s primary contention that operating a church is a\npermitted use. Nevertheless, the city directs us to the\nSupreme Court’s ripeness test for Takings Clause claims,\nwhich requires a plaintiff to obtain a “final decision” from a\nlocal government about how it may use its property before\nripening a claim. Williamson Cty. Reg’l Planning Comm’n v.\nHamilton Bank of Johnson City, 473 U.S. 172, 186 (1985). Some\ncircuit courts have extended Williamson County to RLUIPA\nclaims involving land use issues. See Guatay Christian Fellow-\nship v. Cty. of San Diego, 670 F.3d 957, 976 (9th Cir. 2011); Miles\nChristi Religious Order v. Twp. of Northville, 629 F.3d 533, 537–\n38 (6th Cir. 2010); Murphy v. New Milford Zoning Comm’n, 402\nF.3d 342, 352 (2d Cir. 2005).\n Although we have not addressed this specific question, we\nhave declined to apply Williamson County’s final decision test\nto other non-Takings Clause challenges to local zoning codes.\nTriple G Landfills v. Bd. of Comm’rs of Fountain Cty., 977 F.3d\n\n\n 9 Whether a limitation is reasonable or not must be determined “in\nlight of all the facts, including the actual availability of land and the eco-\nnomics of religious organizations.” Vision Church, 468 F.3d at 990 (quoting\n146 Cong. Rec. E1563 (Sept. 22, 2000) (statement of Rep. Canady)).\n\f14 No. 18-1432\n\n287, 289 (7th Cir. 1992) (final decision test does not apply to\nfacial attacks upon the validity of a zoning ordinance); see also\nForseth v. Vill. of Sussex, 199 F.3d 363, 370–71 (7th Cir. 2000)\n(applying Williamson County to substantive Due Process\nclaim, but not Equal Protection claim). Because the Supreme\nCourt based its holding in Williamson County on “the very\nnature of the inquiry required by the Just Compensation\nClause,” 473 U.S. at 190, extending it to different claims is\nsuspect. See Temple B’Nai Zion, Inc. v. City of Sunny Isles Beach,\n727 F.3d 1349, 1357 (11th Cir. 2013) (declining to apply\nWilliamson County to RLUIPA discrimination claim); Roman\nCatholic Bishop of Springfield v. City of Springfield, 724 F.3d 78,\n92 (1st Cir. 2013) (same); cf. Opulent Life Church v. City of Holly\nSprings, 697 F.3d 279, 287 n.7 (5th Cir. 2012) (noting the issue\nbut declining to take a position on whether Williamson County\napplies to RLUIPA and First Amendment claims).10\n But we need not resolve that question, because the\nchurch’s claims satisfy Williamson County’s final decision test,\neven if it does apply. The record demonstrates the city has\nmade a final decision regarding the church’s zoning use\nclassification. The city went so far as to file the state lawsuit\nseeking an injunction to require the church to either cease\n\n\n\n\n 10The Supreme Court will consider “[w]hether the Court should\nreconsider the portion of Williamson County Regional Planning Commission\nv. Hamilton Bank, 473 U.S. 172, 194–96 (1985), requiring property owners\nto exhaust state court remedies to ripen federal takings claims” in Knick v.\nTwp. of Scott, 862 F.3d 310 (3d Cir. 2017), cert. granted, 138 S. Ct. 1262 (2018)\n(No. 17-647) (argued Jan. 16, 2019).\n\fNo. 18-1432 15\n\noperations or obtain a conditional use permit.11 Unlike in\nMiles Christi, where the municipality remained undecided on\ninterpretation of relevant provisions of its zoning regulations,\n629 F.3d at 538, there is no ambiguity about the city’s\ninterpretation on the permitted versus conditional use\nquestion. Since 2012, the city has always taken the position\nthat churches are a conditional use in the R-3 districts, and\nnothing in the record or the parties’ arguments suggests the\ncity might reconsider that interpretation.\n Moreover, although the church did not formally request a\nparking variance before filing this lawsuit, the church did\napply for a conditional use permit, which the city denied.\nContrast that to the plaintiffs in Murphy, who did not\nchallenge the municipality’s interpretation of its zoning\nregulations or apply for any administrative relief whatsoever.\n402 F.3d at 345 (noting the plaintiffs filed suit two days after\nreceiving a letter from local zoning authorities). The church\ncould have petitioned the city to reconsider its decision, but\npursuit of such relief is not required to make the city’s\ndecision “final.” Williamson Cty., 473 F.3d at 192–93\n(“[T]he finality requirement is concerned with whether the\ninitial decisionmaker has arrived at a definitive position on\nthe issue that inflicts an actual, concrete injury … .”). Six years\ninto this zoning saga, the city’s actions establish that it has\n\n\n 11 It seems the city wishes to pursue its state court enforcement action\n\nbefore demanding the church apply for parking variances, while simulta-\nneously avoiding the church’s RLUIPA claims on the same basis. Cf. World\nOutreach, 591 F.3d at 537 (“[B]y bringing suit against World Outreach, the\nCity chose the forum in which it wanted the organization’s rights adjudi-\ncated; it can hardly be heard to criticize the organization for accepting that\nchoice.”).\n\f16 No. 18-1432\n\nfinally rejected the church’s permitted use interpretation.\nAdditional proceedings before the local zoning authorities\nwill not alter this case’s facts.\n In summary, parking variances do not address the central\ncontroversy between the parties about whether the zoning\ncode treats religious uses on unequal terms with secular uses,\nor places unreasonable limitations on religious exercise. And\nthe city made a final decision to reject the church’s contention\nthat it is a permitted use. The church’s claims are ripe, regard-\nless of whether Williamson County applies.\n B. Mootness\n The district court also ruled that the parking variances and\nconditional use permit mooted the church’s legal claims. A\ncase becomes moot “only when it is impossible for a court to\ngrant any effectual relief whatever to the prevailing party.”\nCampbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 669 (2016) (quoting\nKnox v. Serv. Emp. Int’l Union, Local 1000, 567 U.S. 298, 307\n(2012)). The party asserting mootness bears a “heavy burden\nof proof” in demonstrating it is “absolutely clear that the\nallegedly wrongful behavior could not reasonably be\nexpected to recur.” Freedom From Religion, 885 F.3d at 1051.\nThe district court’s mootness determination suffers from at\nleast two problems.\n First, as described above, neither a parking variance nor a\nconditional use permit resolves the parties’ dispute about\nwhether a church is a permitted or conditional use in the R-3\ndistricts. The district court’s mootness decision is analogous\nto the assertion that a defendant can moot a plaintiff’s claim\nsimply by offering to pay damages, which the Supreme Court\nrejected in Campbell-Ewald. 136 S. Ct. at 670. The church’s\n\fNo. 18-1432 17\n\ncomplaint sought a declaration that the city had violated the\nlaw, an injunction against the city enforcing the zoning code\nto prevent the church from using the Property, and an award\nof money damages. None of that has happened yet, so the case\nis not moot. See Chapman v. First Index, Inc., 796 F.3d 783, 786\n(7th Cir. 2015).12\n Second, no variance or conditional use permit ever went\ninto effect here. The city ordinance purporting to award the\nchurch parking variances states, “This Ordinance shall be\nsigned by the Church to signify its agreement to the terms\nhereof, and this Ordinance is conditional upon the Church\nexecuting the Ordinance.” Markham, Ill., Ordinance No.\n17-0-2168 (Mar. 1, 2017). Likewise, the ordinance purporting\nto grant the church a conditional use permit also required the\nchurch’s signature. Markham, Ill., Ordinance No. 17-0-2169\n(Mar. 1, 2017). But the church never executed either\nordinance. By their own terms, the ordinances are ineffective.\nThus, even if a variance or conditional use permit could moot\nthe church’s claims, neither is present here.\n C. Damages\n The district court also characterized the church’s damages\nclaims as “speculative” and lacking evidentiary support. The\nsummary judgment record contradicts that finding. The\nchurch presented a sworn declaration from its leader, Pastor\n\n\n 12 The availability of a conditional use permit remains relevant in this\ncase, however. For example, such relief from the city impacts the church’s\ndamages claim (which the church acknowledged in the district court), and\na conditional use permit may be the sort of reasonable accommodation to\nwhich the church is entitled on its liability case. We leave those issues for\nthe district court’s consideration on remand.\n\f18 No. 18-1432\n\nMcCracken, describing the injuries the city allegedly inflicted\nupon the church. He detailed how the city’s lawsuit to enjoin\nthe church’s operation had distracted the church’s leadership\nfrom its religious objectives and placed stress on the congre-\ngation. Certainly, the damages for such injuries are not as\neasily quantifiable as a business’s lost profits or a tort victim’s\nmedical bills. Yet, they are within the ambit of compensatory\ndamages, and the district court erred in dismissing them out\nof hand. See Memphis Cmty. School Dist. v. Stachura, 477 U.S.\n299, 307 (1986) (“[C]ompensatory damages may include not\nonly out-of-pocket loss and other monetary harms, but also\nsuch injuries as impairment of reputation, personal humilia-\ntion, and mental anguish and suffering.”) (internal quotation\nand ellipsis omitted).\n Even if the church lacked sufficient evidence to prove its\ndamages to a specific monetary sum, nominal damages\nremain an appropriate means of vindicating rights whose\ndeprivation is difficult to quantify. Guzman v. City of Chicago,\n689 F.3d 740, 748 (7th Cir. 2012); cf. Carey v. Piphus, 435 U.S.\n247, 266 (1978) (recognizing availability of nominal damages\nfor deprivations of civil rights that do not inflict financial\ninjury). The church’s alleged injuries are more than\n“speculative,” and its damages case should have survived\nsummary judgment.\n D. Standing Arguments\n Finally, the city attempts to defend the district court’s\ndecision on an independent ground—the church’s alleged\nlack of standing to pursue its equal terms and unreasonable\n\fNo. 18-1432 19\n\nlimitations claims.13 The city contends the church cannot\ncomplain that other places of public assembly are treated as\npermitted uses in the C-1 and C-2 districts because the church\ndoes not own property in those districts and has never\nattempted to move to them.\n The standing doctrine requires a plaintiff to demonstrate\nit “(1) suffered an injury in fact, (2) that is fairly traceable to\nthe challenged conduct of the defendant, and (3) that is likely\nto be redressed by a favorable judicial decision.” Spokeo, Inc.\nv. Robins, 136 S. Ct. 1540, 1547 (2016). The church meets each\nof those elements. The city’s state court lawsuit to enjoin the\nchurch’s operation is sufficient to demonstrate an injury in\nfact. See Primera Iglesia Bautista Hispana of Boca Raton, Inc. v.\nBroward Cty., 450 F.3d 1295, 1304 (11th Cir. 2006) (municipal\nzoning restriction on use of property constituted an “actual\ninjury”). That injury is directly traceable to the city’s interpre-\ntation of its zoning code and could be redressed by a favorable\njudicial determination.\n The city points to Midrash Sephardi, Inc. v. Town of Surfside,\n366 F.3d 1214 (11th Cir. 2004), to support its argument that an\nRLUIPA plaintiff lacks “standing” to challenge unequal terms\nin a zoning code unless it is presently located in, or has\nconcrete plans to move to, the zoning district where the\ncomparator secular organization is allegedly provided more\nfavorable treatment. Id. at 1224 n.9. Similar to this case, in\nMidrash a municipality attempted to enjoin the operation of\n\n\n 13 Although the city did not challenge the church’s standing to raise\nits unreasonable limitations claim in the district court, challenges to a\nplaintiff’s Article III standing cannot be waived or forfeited. Freedom From\nReligion Found., Inc. v. Nicholson, 536 F.3d 730, 737 (7th Cir. 2008).\n\f20 No. 18-1432\n\ntwo synagogues, which responded by alleging the\nmunicipality’s zoning code violated RLUIPA. Id. at 1220–22.\nThe Eleventh Circuit determined that the synagogues had\nstanding to pursue their claims of a legal right to remain in\ntheir current locations, although they lacked standing to\npursue other discrimination claims regarding the zoning\ntreatment of religious facilities in districts where they were\nnot located. Id. at 1224 & n.9.\n Like the synagogues in Midrash, the church’s legal claims\nare premised on its request to continue to worship at its\npresent site. The church is not an outsider with no stake in the\ncity’s zoning scheme. Although some of the church’s legal\ntheories allege the zoning code nowhere permits churches as\na matter of right, at bottom the church challenges the city’s\ntreatment of churches as conditional uses in the R-3 districts—\nsuch as where the Property is located. In other words, the\nchurch challenges its zoning use categorization at the\nProperty, even as the church argues the zoning code as a\nwhole discriminates against religious uses.\n Such an argument is cognizable, as courts assess the\nentirety of a zoning scheme when evaluating a property\nowner’s RLUIPA claim. See Eagle Cove Camp & Conf. Ctr. v.\nTown of Woodboro, 734 F.3d 673, 680 (7th Cir. 2013) (RLUIPA\nnot violated because plaintiff could locate Bible camp in other\nzoning districts within the municipality); Vision Church, 468\nF.3d at 989 (RLUIPA “exclusion” claim triggered only where\nmunicipality applies “complete and total exclusion of activity\nor expression protected by the First Amendment”).\n In short, the church has sustained a concrete injury result-\ning from the city’s interpretation of which zoning uses are\npermitted in the R-3 districts, and that injury is sufficient to\n\fNo. 18-1432 21\n\ngive the church standing for Article III purposes. The church\nneed not move to another zoning district to acquire standing\nto pursue its claim that it is entitled to stay put.\n III. Conclusion\n For the foregoing reasons, we REVERSE the district court’s\ngrant of summary judgment in favor of the city and REMAND\nfor further proceedings. We encourage the district court to\nbegin by addressing whether operating a church on the\nProperty is a permitted or conditional use under the zoning\ncode.\n Our decision expresses no opinion on the substantive\nmerits of any of the church’s legal claims or on the proper\ninterpretation of the city’s zoning code. The district court did\nnot reach those issues, and we do not decide them\nfor the first time on appeal. Circuit Rule 36 shall apply on\nremand.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4360059/", "author_raw": "BRENNAN, Circuit Judge"}]}	FLAUM	EASTERBROOK	BRENNAN	1		{"FLAUM": ", Circuit", "EASTERBROOK": ", Circuit", "BRENNAN": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4582806/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Church of Our Lord and Savior v. City of Markham, Illinois\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-17\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-1432\nTHE CHURCH OF OUR LORD AND SAVIOR JESUS CHRIST,\n Plaintiff-Appellant,\n v.\n\nCITY OF MARKHAM, ILLINOIS\n Defendant-Appellee.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 1:15-cv-04079 — Ronald A. Guzmán, Judge.\n ____________________\n\n ARGUED OCTOBER 31, 2018 — DECIDED JANUARY 17, 2019\n ____________________\n\n Before FLAUM, EASTERBROOK, and BRENNAN, Circuit Judges.\n BRENNAN, Circuit Judge. In the City of Markham, Illinois,\n16018 South Spaulding Avenue (the “Property”) is home to\nThe Church of Our Lord and Savior Jesus Christ. We use the\nword “home” literally and figuratively: the church converted\na single-family residence on the Property into its house of\nworship. The Property’s location in a residential area, and the\nchurch’s ensuing zoning battles with the city, give rise to this\nlawsuit.\n\f2 No. 18-1432\n\n For more than 15 years, the church’s congregation has\ngathered at the Property for worship services, choir rehears-\nals, Bible studies, and the like. As the church grew, it remod-\neled the house to better accommodate its new purpose. This\nbrought the church into contact with the city’s administration\nthrough permit applications, property inspections, and\nsimilar zoning-related interactions.\n The parties dispute what the city knew about the church’s\nuse of the Property, and when, but such issues are largely\nirrelevant at this juncture. What matters (and is undisputed)\nis that the city sought an injunction in state court to halt the\nchurch’s operation on the Property without a conditional use\npermit, prompting the church to file an application for such a\npermit, which the city denied. All that occurred before this\ncase began.\n Denied a conditional use permit and facing a possible\ncourt order enjoining its operation, the church brought this\nlawsuit challenging the city’s zoning code under the Religious\nLand Use and Institutionalized Persons Act, 42 U.S.C.\n§ 2000cc et seq. (“RLUIPA”), and the Illinois Religious Free-\ndom Restoration Act, 775 ILL. COMP. STAT. 35/1 et seq. The\nchurch contends the city’s zoning code treats religious uses of\nproperty on unequal terms with analogous secular uses and\nunreasonably limits where religious organizations may locate\nin the city. The church also alleges the city’s insistence on a\nconditional use permit has imposed a substantial burden on\nits religious exercise.\n Two years into this litigation, the city argued (for the first\ntime) that the church’s legal claims were not ripe because the\nchurch never applied for variances from applicable parking\nregulations. The district court ordered the church to apply for\n\fNo. 18-1432 3\n\nsuch variances, and the city ultimately awarded them to the\nchurch, along with a conditional use permit. Afterward, the\ndistrict court granted the city summary judgment, ruling the\nchurch’s claims were not ripe when filed and rendered moot.\n We reverse. The district court focused on the church not\napplying for parking variances before the lawsuit. But that\nissue is related only tangentially to the church’s claims, which\nconcern zoning use classifications, not parking. The ripeness\nof the church’s claims does not hinge on pursuit of parking\nvariances that will not resolve them. Nor can a conditional use\npermit from the city moot the church’s claim that such a\npermit is not needed. The key question in this case is whether\noperating a church on the Property is a permitted or condi-\ntional use. The district court did not answer that question, but\nit is the necessary starting point for resolving the church’s\nlegal claims.\n I. Background\n A. The City’s Zoning Regulations\n The city employs a “cumulative” zoning scheme, desig-\nnating 11 categories of “use districts.” CITY OF MARKHAM, ILL.,\nZONING CODE § 156.015. A “use” refers to “[t]he purpose for\nwhich land or premises or a building or structure thereon is\ndesigned, arranged, or intended, or for which it is occupied\nor maintained, let or leased.” Zoning Code § 156.003. The\nvarious use districts are ranked from the highest, most restric-\ntive uses (R-1 One-Family Residential Districts) to the lowest,\nleast restrictive uses (L-3 Motor Freight Terminal Districts).\nCompare Zoning Code §§ 156.050–.056, with §§ 156.210–.224.\nThe scheme is “cumulative” because any use in a higher use\ndistrict is permitted in a lower use district (for example, all\n\f4 No. 18-1432\n\nuses permitted in the residential districts are permitted in the\ncommercial districts). Zoning Code § 156.146(A); see also 1\nPATRICIA E. SALKIN, AMERICAN LAW OF ZONING § 9:14 (5th ed.\nSupp. 2018).\n The zoning code also distinguishes between “permitted”\nuses (which do not require city approval) and “conditional”\nuses (which do). Compare Zoning Code § 156.051 (“The\nfollowing uses are permitted …”), with § 156.052 (“The\nfollowing [uses] may also be permitted upon approval of their\nlocation and development by the Plan Commission …”); see\nalso SALKIN, supra, at § 9:20. If a property owner’s intended use\nis not permitted as of right, the owner must apply to the city\nfor a conditional (or “special”) use permit. Zoning Code\n§ 156.317(A).1 The city’s planning commission evaluates the\napplication and may recommend approval only if “it finds\nthat the issuance of such special use permit is in the public\ninterest and not solely for the interest of the applicant.” Zon-\ning Code § 156.319(B). Final authority on conditional use\npermits rests with the city council, which may grant one only\nif “[t]he proposed use at the particular location requested is\neither necessary or desirable in order to provide a service or a\nfacility which is in the interest of public need and convenience\nand which will contribute to the general welfare of the com-\nmunity.” Zoning Code § 156.320(A).\n The Property is located in an R-3 One-Family Residential\nDistrict, which permits single-family dwellings and “[a]ll\nuses permitted in the R-2 district.” Zoning Code § 156.081.\n\n\n 1 The zoning code uses the terms “conditional use” and “special use”\ninterchangeably. E.g., Zoning Code §§ 156.315–.327. We employ the\nphrase “conditional use.”\n\fNo. 18-1432 5\n\nKeeping with the nesting doll framework of cumulative\nzoning, “[a]ll uses permitted in the R-1 district” are permitted\nin the R-2 districts, so all uses permitted in the R-1 districts\nare also permitted in the R-3 districts. Zoning Code\n§ 156.066(B).\n The zoning code does not expressly provide for any con-\nditional uses in the R-2 or R-3 districts. But it does list five\nconditional uses in the R-1 districts: (1) Schools, (2) “Churches\nand buildings usually associated with similar activities,”\n(3) Public parks, (4) Governmental and utility buildings, and\n(5) Hospitals. Zoning Code § 156.052. That is the only provi-\nsion in the zoning code that mentions “churches” as a condi-\ntional use, and no provision expressly identifies them as a\npermitted use. Other places of public assembly, meanwhile,\nare permitted uses as of right in other districts: “theaters” are\npermitted in C-1 Neighborhood Shopping Districts, Zoning\nCode § 156.146(D)(2), and “auditoriums” are permitted in C-2\nCommunity Shopping Districts. Zoning Code § 156.161(B)(2).\n The zoning code’s use classifications are distinct from its\nparking regulations. In “all districts,” whenever a building is\nto be erected or enlarged, the owner must present a plan for\noff-street parking to be approved by the city’s planning com-\nmission, regardless of whether the property owner’s use is\npermitted or conditional. Zoning Code §§ 156.246–.247. The\nrequired number of off-street parking spaces, however, varies\ndepending on property use. Zoning Code § 156.252.\n B. Renovation of the Property\n Reginald McCracken, the church’s pastor, purchased the\nProperty as a personal residence in 1985. In 2003, the congre-\ngation began meeting regularly at the Property, with ten to\n\f6 No. 18-1432\n\ntwenty people attending Sunday morning services. Today,\naverage attendance for a worship service is about thirty peo-\nple. In 2012, due to growing attendance and an increase in\nreligious activities, the church began a project to renovate the\ngarage into a chapel. The project involved installing a new\nroof, new windows, and pews, and cost approximately\n$40,000.2 Just months after the project’s completion, the city\nfiled suit against the church in Illinois state court, seeking to\nenjoin its operation on the Property without a conditional use\npermit. The city did not issue any citations or formal notices\nto the church beforehand.\n C. 2013 Application for a Conditional Use Permit\n When the state court denied the church’s motion to\ndismiss the city’s lawsuit in March 2013, the church requested\na continuance to apply for a conditional use permit from the\ncity. The state court granted the continuance, simultaneously\nentering an order restricting off-street parking around the\nProperty.3 The church filed its application, but it did not\nrequest any variances from the city’s parking regulations.\n After considering reports from a building inspector and an\nengineering consultant, the city’s planning commission voted\nto recommend that the city council deny the church’s condi-\ntional use application. A week later, the city council\nconcurred and denied the application.\n\n\n 2 The parties’ briefs address numerous disputes about previous per-\nmit applications and whether the church obtained the necessary approvals\nbefore starting its construction project in 2012. Because the merits of this\nappeal do not turn on such issues, we do not delve into them.\n 3The city’s lawsuit in state court has since been stayed indefinitely,\npending resolution of the church’s claims in this case.\n\fNo. 18-1432 7\n\n D. This Lawsuit\n Following the city’s denial of the conditional use permit,\nthe church filed this lawsuit in Illinois state court. When the\nchurch amended its complaint to add an RLUIPA claim, the\ncity removed the case to federal court. The city unsuccessfully\nmoved to dismiss the church’s claims, in both state and\nfederal court, but at the pleading stage never challenged their\nripeness.\n The church’s operative complaint contains four distinct\nclaims: (1) an RLUIPA “equal terms” claim under 42 U.S.C.\n§ 2000cc(b)(1); (2) an RLUIPA “unreasonable limitations”\nclaim under 42 U.S.C. § 2000cc(b)(3)(B); (3) an RLUIPA\n“substantial burden” claim under 42 U.S.C. § 2000cc(a)(1);\nand (4) a claim under Illinois’s Religious Freedom Restoration\nAct, 775 ILL. COMP. STAT. 35/25(d).4\n As to how religious facilities should be classified under\nthe zoning code, the church sees only two possible interpreta-\ntions, either of which renders the city liable. The church’s\npreferred interpretation is that a church is a permitted use of\nthe Property, such that the city’s insistence on a conditional\nuse permit was incorrect and constituted a substantial burden\non the church’s religious exercise. According to the church,\nthe only other possible interpretation is that a church is a\nconditional use in the R-3 districts, which would mean the\nzoning code provides no districts in which religious facilities\n\n\n 4 Because the last two claims are “materially identical,” World Outreach\n\nConference Ctr. v. City of Chicago, 591 F.3d 531, 533 (7th Cir. 2009), we refer\nto them together as the “substantial burden claims.”\n\f8 No. 18-1432\n\nare permitted as of right, thereby violating RLUIPA’s equal\nterms and unreasonable limitations provisions.\n The city reads the zoning code a third way: churches are a\nconditional use in the R-3 districts, but are permitted as of\nright in the city’s commercial and industrial districts\n(although those districts do not expressly list “churches” as a\npermitted use), so there cannot possibly be an equal terms or\nunreasonable limitations problem.\n After discovery closed, the church announced it intended\nto move for summary judgment on the permitted versus\nconditional use question. The district court asked how the city\nhoped to resolve the parties’ dispute, and the city’s attorney\nasserted the church’s claims were not ripe because the church\nhad never submitted a parking plan for the city to consider.\nSubsequently, the district court struck the parties’ cross\nmotions for summary judgment and ordered the church to\napply for a parking variance. The district court specified,\nhowever, that it was “not opining on whether Plaintiff needs,\nor the City should approve, any particular variations or\nconditional use permits Plaintiff may seek.”\n The church complied with the district court’s order by\nfiling an “Application for Variances” with the city, in which it\nexpressly stated it was not seeking zoning approval, based on\nits contention that a church is a permitted use not requiring\nconditional use approval. The church did request, however,\n“whatever variances the City believes are necessary to allow\nthe Church to continue with its existing off-street parking.”\nThe church also acknowledged it could not “afford to bring\nits existing parking into compliance with the strict letter of the\nCity’s Ordinance,” such that “variances for parking are\n\fNo. 18-1432 9\n\nrequired in order to accommodate and allow the congregation\nto continue its religious assembly on the property.”\n The city council responded by passing two ordinances,\nwhich purported to grant the church parking variances and a\nconditional use permit. But each required the church’s signa-\nture accepting all terms and conditions imposed. The church\nnever executed either ordinance.\n When the parties returned to the district court following\nthis process, the district court granted the city summary\njudgment on all counts. The court held that the church’s\nclaims were not ripe when filed because the church had not\napplied for parking variances, and the church’s claims for\nfuture damages became moot as a result of the conditional use\npermit. The district court ruled that any claim for past dam-\nages was “speculative” and failed because the claims had not\nripened until the church submitted its variance application.\nThe church appealed.\n II. Discussion\n We review a grant of summary judgment de novo. Vision\nChurch v. Vill. of Long Grove, 468 F.3d 975, 988 (7th Cir. 2006).\nDe novo review also applies to a district court’s ripeness and\nmootness determinations, although we accept its underlying\nfactual findings absent clear error. Freedom From Religion\nFound., Inc. v. Concord Cmty. Sch., 885 F.3d 1038, 1045 (7th Cir.\n2018) (mootness); Metropolitan Milwaukee Ass’n of Commerce v.\nMilwaukee Cty., 325 F.3d 879, 881 (7th Cir. 2003) (ripeness).\n The church’s operative complaint alleges the zoning code\ntreats religious uses of property on unequal terms with secu-\nlar uses, unreasonably limits where religious organizations\n\f10 No. 18-1432\n\nmay locate, and substantially burdens its religious exercise.5\nImportantly, the church’s equal terms and unreasonable\nlimitations claims hinge on the city’s interpretation of its\nzoning code rendering churches a conditional use in the R-3\ndistricts, rather than a permitted use as of right. If, however,\nthe church’s interpretation that it is a permitted use is correct,\nthen its equal terms and unreasonable limitations claims fall\naway, leaving only its substantial burden claims.\n Despite the significance of deciding whether a church is a\npermitted or conditional use of the Property, the district court\ndid not resolve that issue:\n I don’t care if they give you a permitted use\n recognition. If you submit a [parking] plan and\n they approve it and they let you continue, the\n case is over. You get to continue. They’re not\n stopping your religious freedom. I mean, so\n whether you get a permitted use finding from\n them doesn’t really make any difference to me.\n This approach—blurring the distinction between zoning\nuse and parking regulations—led to problems in the\nsummary judgment decision before us. The variances might\nrelieve the church from certain parking regulations, but they\nsay nothing about whether the church’s use of the Property is\npermissible. And a conditional use permit does not moot the\nchurch’s claim that it does not need one and is entitled to be\ntreated as a permitted use as of right. Accordingly, the district\ncourt’s summary judgment decision must be reversed.\n\n 5 The church pleads its RLUIPA equal terms and unreasonable limita-\n\ntions claims as facial attacks on the city’s zoning code. Its substantial\nburden claims appear to be a mix of as applied and facial challenges.\n\fNo. 18-1432 11\n\n A. Ripeness\n The district court granted summary judgment to the city\nbased primarily on the court’s conclusion that the church’s\nclaims were not ripe. The ripeness doctrine arises out of the\nConstitution’s case-or-controversy requirement, as claims\npremised on uncertain or contingent events present justicia-\nbility problems. Wisconsin Right of Life State Political Comm. v.\nBarland, 664 F.3d 139, 148 (7th Cir. 2011); see also 13B CHARLES\nALAN WRIGHT, ET AL., FEDERAL PRACTICE AND PROCEDURE\n§ 3532 (3d ed. Supp. 2018). The doctrine’s underlying\nobjective is to avoid premature adjudication and judicial\nentanglement in abstract disagreements. Pacific Gas & Elec. Co.\nv. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190,\n200–01 (1983). Because ripeness is “peculiarly a question of\ntiming,” a court determines ripeness as of the date of its\ndecision, not the date the lawsuit was filed. Buckley v. Valeo,\n424 U.S. 1, 114–118 (1976) (quoting Regional Rail Reorganization\nAct Cases, 419 U.S. 102, 140 (1974)).6\n As noted above, the district court appears to have\nconcluded the church’s claims were not ripe because the\nchurch failed to request a variance from the city’s off-street\nparking regulations before filing suit. In the district court’s\nview, “instead of formally seeking a variance from the City,\nthe Church sought to bypass the administrative process and,\nin essence, asked for a court-ordered variance.” 309 F. Supp.\n3d 545, 554 (N.D. Ill. 2018). But the district court’s focus on\n\n 6 To the extent the district court determined ripeness as of the date the\n\nchurch filed its complaint, rather than the date of that court’s decision, that\nwas erroneous. Blanchette v. Connecticut Gen. Ins. Corp., 419 U.S. 102, 140\n(1974); cf. 13B CHARLES ALAN WRIGHT, ET AL., FEDERAL PRACTICE AND\nPROCEDURE § 3532.7 (3d ed. Supp. 2018).\n\f12 No. 18-1432\n\nparking variances misapprehends that the church’s legal\nclaims are directed at the zoning code’s use classifications, not\nits parking requirements.\n For example, the church’s equal terms claim is premised\non the city’s interpretation of the zoning code rendering a\nchurch a conditional use in the R-3 districts. According to the\nchurch, the city’s reading would mean there is no district in\nwhich a church would be permitted as of right. The church\nalleges this violates RLUIPA7 because analogous secular uses,\nsuch as theaters, are permitted as of right in districts within\nthe city, but churches are always a conditional use subject to\ncity approval.8 Obtaining a parking variance would not\nrectify this alleged inequity: a theater would still be permitted\nas of right, while a church would remain a conditional use\nthat could be denied a permit or otherwise lose its permission\nto operate. The variance might alleviate burdens imposed by\nthe city’s parking regulations, but it does not address zoning\nuse classifications, which are the subject of this lawsuit.\n Nor would a parking variance solve the church’s unrea-\nsonable limitations claim. The church contends that by\ntreating churches as a conditional use everywhere, and\nproviding no district where they can locate as of right, the city\nhas implemented a land use regulation that “unreasonably\n\n 7The relevant subsection provides: “No government shall impose or\nimplement a land use regulation in a manner that treats a religious assem-\nbly or institution on less than equal terms with a nonreligious assembly or\ninstitution.” 42 U.S.C. 2000cc(b)(1).\n 8 In comparing zoning treatment, a court looks to whether the\nreligious and secular organizations are treated the same with respect to\naccepted, objective regulatory criteria. River of Life Kingdom Ministries v.\nVill. of Hazel Crest, 611 F.3d 367, 371 (7th Cir. 2010).\n\fNo. 18-1432 13\n\nlimits religious assemblies, institutions, or structures within a\njurisdiction.” 42 U.S.C. § 2000cc(b)(3)(B).9 Again, a parking\nvariance would not address the church’s central contention\nabout the legality of its use of the Property.\n Alternatively, the district court’s opinion could be\nconstrued to hold that a plaintiff must apply for a conditional\nuse permit (as opposed to a parking variance) before bringing\nan RLUIPA claim. But that framework does not work either.\nIt would address the legality of the church’s use, but not the\nchurch’s primary contention that operating a church is a\npermitted use. Nevertheless, the city directs us to the\nSupreme Court’s ripeness test for Takings Clause claims,\nwhich requires a plaintiff to obtain a “final decision” from a\nlocal government about how it may use its property before\nripening a claim. Williamson Cty. Reg’l Planning Comm’n v.\nHamilton Bank of Johnson City, 473 U.S. 172, 186 (1985). Some\ncircuit courts have extended Williamson County to RLUIPA\nclaims involving land use issues. See Guatay Christian Fellow-\nship v. Cty. of San Diego, 670 F.3d 957, 976 (9th Cir. 2011); Miles\nChristi Religious Order v. Twp. of Northville, 629 F.3d 533, 537–\n38 (6th Cir. 2010); Murphy v. New Milford Zoning Comm’n, 402\nF.3d 342, 352 (2d Cir. 2005).\n Although we have not addressed this specific question, we\nhave declined to apply Williamson County’s final decision test\nto other non-Takings Clause challenges to local zoning codes.\nTriple G Landfills v. Bd. of Comm’rs of Fountain Cty., 977 F.3d\n\n\n 9 Whether a limitation is reasonable or not must be determined “in\nlight of all the facts, including the actual availability of land and the eco-\nnomics of religious organizations.” Vision Church, 468 F.3d at 990 (quoting\n146 Cong. Rec. E1563 (Sept. 22, 2000) (statement of Rep. Canady)).\n\f14 No. 18-1432\n\n287, 289 (7th Cir. 1992) (final decision test does not apply to\nfacial attacks upon the validity of a zoning ordinance); see also\nForseth v. Vill. of Sussex, 199 F.3d 363, 370–71 (7th Cir. 2000)\n(applying Williamson County to substantive Due Process\nclaim, but not Equal Protection claim). Because the Supreme\nCourt based its holding in Williamson County on “the very\nnature of the inquiry required by the Just Compensation\nClause,” 473 U.S. at 190, extending it to different claims is\nsuspect. See Temple B’Nai Zion, Inc. v. City of Sunny Isles Beach,\n727 F.3d 1349, 1357 (11th Cir. 2013) (declining to apply\nWilliamson County to RLUIPA discrimination claim); Roman\nCatholic Bishop of Springfield v. City of Springfield, 724 F.3d 78,\n92 (1st Cir. 2013) (same); cf. Opulent Life Church v. City of Holly\nSprings, 697 F.3d 279, 287 n.7 (5th Cir. 2012) (noting the issue\nbut declining to take a position on whether Williamson County\napplies to RLUIPA and First Amendment claims).10\n But we need not resolve that question, because the\nchurch’s claims satisfy Williamson County’s final decision test,\neven if it does apply. The record demonstrates the city has\nmade a final decision regarding the church’s zoning use\nclassification. The city went so far as to file the state lawsuit\nseeking an injunction to require the church to either cease\n\n\n\n\n 10The Supreme Court will consider “[w]hether the Court should\nreconsider the portion of Williamson County Regional Planning Commission\nv. Hamilton Bank, 473 U.S. 172, 194–96 (1985), requiring property owners\nto exhaust state court remedies to ripen federal takings claims” in Knick v.\nTwp. of Scott, 862 F.3d 310 (3d Cir. 2017), cert. granted, 138 S. Ct. 1262 (2018)\n(No. 17-647) (argued Jan. 16, 2019).\n\fNo. 18-1432 15\n\noperations or obtain a conditional use permit.11 Unlike in\nMiles Christi, where the municipality remained undecided on\ninterpretation of relevant provisions of its zoning regulations,\n629 F.3d at 538, there is no ambiguity about the city’s\ninterpretation on the permitted versus conditional use\nquestion. Since 2012, the city has always taken the position\nthat churches are a conditional use in the R-3 districts, and\nnothing in the record or the parties’ arguments suggests the\ncity might reconsider that interpretation.\n Moreover, although the church did not formally request a\nparking variance before filing this lawsuit, the church did\napply for a conditional use permit, which the city denied.\nContrast that to the plaintiffs in Murphy, who did not\nchallenge the municipality’s interpretation of its zoning\nregulations or apply for any administrative relief whatsoever.\n402 F.3d at 345 (noting the plaintiffs filed suit two days after\nreceiving a letter from local zoning authorities). The church\ncould have petitioned the city to reconsider its decision, but\npursuit of such relief is not required to make the city’s\ndecision “final.” Williamson Cty., 473 F.3d at 192–93\n(“[T]he finality requirement is concerned with whether the\ninitial decisionmaker has arrived at a definitive position on\nthe issue that inflicts an actual, concrete injury … .”). Six years\ninto this zoning saga, the city’s actions establish that it has\n\n\n 11 It seems the city wishes to pursue its state court enforcement action\n\nbefore demanding the church apply for parking variances, while simulta-\nneously avoiding the church’s RLUIPA claims on the same basis. Cf. World\nOutreach, 591 F.3d at 537 (“[B]y bringing suit against World Outreach, the\nCity chose the forum in which it wanted the organization’s rights adjudi-\ncated; it can hardly be heard to criticize the organization for accepting that\nchoice.”).\n\f16 No. 18-1432\n\nfinally rejected the church’s permitted use interpretation.\nAdditional proceedings before the local zoning authorities\nwill not alter this case’s facts.\n In summary, parking variances do not address the central\ncontroversy between the parties about whether the zoning\ncode treats religious uses on unequal terms with secular uses,\nor places unreasonable limitations on religious exercise. And\nthe city made a final decision to reject the church’s contention\nthat it is a permitted use. The church’s claims are ripe, regard-\nless of whether Williamson County applies.\n B. Mootness\n The district court also ruled that the parking variances and\nconditional use permit mooted the church’s legal claims. A\ncase becomes moot “only when it is impossible for a court to\ngrant any effectual relief whatever to the prevailing party.”\nCampbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 669 (2016) (quoting\nKnox v. Serv. Emp. Int’l Union, Local 1000, 567 U.S. 298, 307\n(2012)). The party asserting mootness bears a “heavy burden\nof proof” in demonstrating it is “absolutely clear that the\nallegedly wrongful behavior could not reasonably be\nexpected to recur.” Freedom From Religion, 885 F.3d at 1051.\nThe district court’s mootness determination suffers from at\nleast two problems.\n First, as described above, neither a parking variance nor a\nconditional use permit resolves the parties’ dispute about\nwhether a church is a permitted or conditional use in the R-3\ndistricts. The district court’s mootness decision is analogous\nto the assertion that a defendant can moot a plaintiff’s claim\nsimply by offering to pay damages, which the Supreme Court\nrejected in Campbell-Ewald. 136 S. Ct. at 670. The church’s\n\fNo. 18-1432 17\n\ncomplaint sought a declaration that the city had violated the\nlaw, an injunction against the city enforcing the zoning code\nto prevent the church from using the Property, and an award\nof money damages. None of that has happened yet, so the case\nis not moot. See Chapman v. First Index, Inc., 796 F.3d 783, 786\n(7th Cir. 2015).12\n Second, no variance or conditional use permit ever went\ninto effect here. The city ordinance purporting to award the\nchurch parking variances states, “This Ordinance shall be\nsigned by the Church to signify its agreement to the terms\nhereof, and this Ordinance is conditional upon the Church\nexecuting the Ordinance.” Markham, Ill., Ordinance No.\n17-0-2168 (Mar. 1, 2017). Likewise, the ordinance purporting\nto grant the church a conditional use permit also required the\nchurch’s signature. Markham, Ill., Ordinance No. 17-0-2169\n(Mar. 1, 2017). But the church never executed either\nordinance. By their own terms, the ordinances are ineffective.\nThus, even if a variance or conditional use permit could moot\nthe church’s claims, neither is present here.\n C. Damages\n The district court also characterized the church’s damages\nclaims as “speculative” and lacking evidentiary support. The\nsummary judgment record contradicts that finding. The\nchurch presented a sworn declaration from its leader, Pastor\n\n\n 12 The availability of a conditional use permit remains relevant in this\ncase, however. For example, such relief from the city impacts the church’s\ndamages claim (which the church acknowledged in the district court), and\na conditional use permit may be the sort of reasonable accommodation to\nwhich the church is entitled on its liability case. We leave those issues for\nthe district court’s consideration on remand.\n\f18 No. 18-1432\n\nMcCracken, describing the injuries the city allegedly inflicted\nupon the church. He detailed how the city’s lawsuit to enjoin\nthe church’s operation had distracted the church’s leadership\nfrom its religious objectives and placed stress on the congre-\ngation. Certainly, the damages for such injuries are not as\neasily quantifiable as a business’s lost profits or a tort victim’s\nmedical bills. Yet, they are within the ambit of compensatory\ndamages, and the district court erred in dismissing them out\nof hand. See Memphis Cmty. School Dist. v. Stachura, 477 U.S.\n299, 307 (1986) (“[C]ompensatory damages may include not\nonly out-of-pocket loss and other monetary harms, but also\nsuch injuries as impairment of reputation, personal humilia-\ntion, and mental anguish and suffering.”) (internal quotation\nand ellipsis omitted).\n Even if the church lacked sufficient evidence to prove its\ndamages to a specific monetary sum, nominal damages\nremain an appropriate means of vindicating rights whose\ndeprivation is difficult to quantify. Guzman v. City of Chicago,\n689 F.3d 740, 748 (7th Cir. 2012); cf. Carey v. Piphus, 435 U.S.\n247, 266 (1978) (recognizing availability of nominal damages\nfor deprivations of civil rights that do not inflict financial\ninjury). The church’s alleged injuries are more than\n“speculative,” and its damages case should have survived\nsummary judgment.\n D. Standing Arguments\n Finally, the city attempts to defend the district court’s\ndecision on an independent ground—the church’s alleged\nlack of standing to pursue its equal terms and unreasonable\n\fNo. 18-1432 19\n\nlimitations claims.13 The city contends the church cannot\ncomplain that other places of public assembly are treated as\npermitted uses in the C-1 and C-2 districts because the church\ndoes not own property in those districts and has never\nattempted to move to them.\n The standing doctrine requires a plaintiff to demonstrate\nit “(1) suffered an injury in fact, (2) that is fairly traceable to\nthe challenged conduct of the defendant, and (3) that is likely\nto be redressed by a favorable judicial decision.” Spokeo, Inc.\nv. Robins, 136 S. Ct. 1540, 1547 (2016). The church meets each\nof those elements. The city’s state court lawsuit to enjoin the\nchurch’s operation is sufficient to demonstrate an injury in\nfact. See Primera Iglesia Bautista Hispana of Boca Raton, Inc. v.\nBroward Cty., 450 F.3d 1295, 1304 (11th Cir. 2006) (municipal\nzoning restriction on use of property constituted an “actual\ninjury”). That injury is directly traceable to the city’s interpre-\ntation of its zoning code and could be redressed by a favorable\njudicial determination.\n The city points to Midrash Sephardi, Inc. v. Town of Surfside,\n366 F.3d 1214 (11th Cir. 2004), to support its argument that an\nRLUIPA plaintiff lacks “standing” to challenge unequal terms\nin a zoning code unless it is presently located in, or has\nconcrete plans to move to, the zoning district where the\ncomparator secular organization is allegedly provided more\nfavorable treatment. Id. at 1224 n.9. Similar to this case, in\nMidrash a municipality attempted to enjoin the operation of\n\n\n 13 Although the city did not challenge the church’s standing to raise\nits unreasonable limitations claim in the district court, challenges to a\nplaintiff’s Article III standing cannot be waived or forfeited. Freedom From\nReligion Found., Inc. v. Nicholson, 536 F.3d 730, 737 (7th Cir. 2008).\n\f20 No. 18-1432\n\ntwo synagogues, which responded by alleging the\nmunicipality’s zoning code violated RLUIPA. Id. at 1220–22.\nThe Eleventh Circuit determined that the synagogues had\nstanding to pursue their claims of a legal right to remain in\ntheir current locations, although they lacked standing to\npursue other discrimination claims regarding the zoning\ntreatment of religious facilities in districts where they were\nnot located. Id. at 1224 & n.9.\n Like the synagogues in Midrash, the church’s legal claims\nare premised on its request to continue to worship at its\npresent site. The church is not an outsider with no stake in the\ncity’s zoning scheme. Although some of the church’s legal\ntheories allege the zoning code nowhere permits churches as\na matter of right, at bottom the church challenges the city’s\ntreatment of churches as conditional uses in the R-3 districts—\nsuch as where the Property is located. In other words, the\nchurch challenges its zoning use categorization at the\nProperty, even as the church argues the zoning code as a\nwhole discriminates against religious uses.\n Such an argument is cognizable, as courts assess the\nentirety of a zoning scheme when evaluating a property\nowner’s RLUIPA claim. See Eagle Cove Camp & Conf. Ctr. v.\nTown of Woodboro, 734 F.3d 673, 680 (7th Cir. 2013) (RLUIPA\nnot violated because plaintiff could locate Bible camp in other\nzoning districts within the municipality); Vision Church, 468\nF.3d at 989 (RLUIPA “exclusion” claim triggered only where\nmunicipality applies “complete and total exclusion of activity\nor expression protected by the First Amendment”).\n In short, the church has sustained a concrete injury result-\ning from the city’s interpretation of which zoning uses are\npermitted in the R-3 districts, and that injury is sufficient to\n\fNo. 18-1432 21\n\ngive the church standing for Article III purposes. The church\nneed not move to another zoning district to acquire standing\nto pursue its claim that it is entitled to stay put.\n III. Conclusion\n For the foregoing reasons, we REVERSE the district court’s\ngrant of summary judgment in favor of the city and REMAND\nfor further proceedings. We encourage the district court to\nbegin by addressing whether operating a church on the\nProperty is a permitted or conditional use under the zoning\ncode.\n Our decision expresses no opinion on the substantive\nmerits of any of the church’s legal claims or on the proper\ninterpretation of the city’s zoning code. The district court did\nnot reach those issues, and we do not decide them\nfor the first time on appeal. Circuit Rule 36 shall apply on\nremand.\n[END_CASE]", "role": "user" } ]
4,582,954		Jason Lund v. United States	2019-01-17	16-2381	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before KANNE and SYKES, Circuit Judges, and DARROW, Dis- trict Judge.", "parties": "", "opinions": [{"author": "trict Judge", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 16-2381\nJASON M. LUND,\n Petitioner-Appellant,\n v.\n\nUNITED STATES OF AMERICA,\n Respondent-Appellee.\n ____________________\n\n Appeal from the United States District Court for the\n Eastern District of Wisconsin.\n No. 16-CV-119 — J.P. Stadtmueller, Judge.\n ____________________\n\n ARGUED OCTOBER 25, 2017— DECIDED JANUARY 17, 2019\n ____________________\n\n Before KANNE and SYKES, Circuit Judges, and DARROW, Dis-\ntrict Judge. ∗\n DARROW, District Judge. Petitioner Jason Lund appeals the\ndenial of his motion to vacate, set aside, or correct his sentence\nbrought pursuant to 28 U.S.C. § 2255. The district court con-\ncluded that Lund’s motion was untimely under each of the\n\n\n ∗ Of the Central District of Illinois, sitting by designation.\n\f2 No. 16-2381\n\npotential statutes of limitations and that Lund could not in-\nvoke the actual innocence exception to the statute of limita-\ntions because his claim of actual innocence was based on a\ncase that interpreted the substantive law of his conviction:\nBurrage v. United States, 571 U.S. 204 (2014). Lund challenges\nonly this conclusion, arguing that a claim of actual innocence\ncan be based on a change in the law. To resolve this case, how-\never, we need not rule on this issue. Even assuming actual in-\nnocence can be premised on a change in the law, Lund cannot\ntake advantage of the exception because he rests both his ac-\ntual innocence claim and his claim for relief on Burrage. We\naﬃrm.\n I. Background\n In 2008, Jason Lund and thirty others were charged via\nfederal indictment with conspiracy to distribute heroin in vi-\nolation of 21 U.S.C. § 841(a)(1). The indictment alleged that\nthe conspiracy resulted in overdose deaths of ﬁve individuals,\nincluding Andrew Goetzke and David Knuth, in violation of\n21 U.S.C. § 841(b)(1)(A). Lund pleaded guilty to the single-\ncount indictment, but denied responsibility for the deaths of\nGoetzke and Knuth, arguing that he had withdrawn from the\nconspiracy prior to their deaths. The district court judge re-\njected that argument and sentenced him in accordance with\nthe twenty-year mandatory minimum—sometimes referred\nto as the “death results” enhancement or penalty—under\n§ 841(b)(1)(A). Lund appealed and his sentence was aﬃrmed.\nUnited States v. Walker, 721 F.3d 828, 841 (7th Cir. 2013), judg-\nment vacated on other grounds, Lawler v. United States, 572 U.S.\n1111 (2014) (mem.). He did not ﬁle a petition for a writ of cer-\ntiorari, so his sentence became ﬁnal on October 1, 2013.\n\fNo. 16-2381 3\n\n On February 1, 2016, Lund ﬁled a motion to vacate, set\naside, or correct his sentence pursuant to 28 U.S.C. § 2255\nbased on two changes in the law occurring after his convic-\ntion. See Burrage, 571 U.S. at 211; Alleyne v. United States, 570\nU.S. 99, 102 (2013). In Burrage, 571 U.S. at 211, the Supreme\nCourt held that ﬁnding a defendant guilty of the “death re-\nsults” penalty “requires proof ‘that the harm would not have\noccurred in the absence of—that is, but for—the defendant’s\nconduct.’” (quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570\nU.S. 338, 346–47 (2013)). This but-for causation rule applies\nretroactively. Krieger v. United States, 842 F.3d 490, 499–500\n(7th Cir. 2016). In essence, Lund argued that under Burrage,\nhe is actually innocent of the “death results” enhancement be-\ncause the heroin he provided to Goetzke and Knuth was not\nthe but-for cause of their deaths. Dist. Ct. Order 7, Br. Appel-\nlant App. 1–15. Alleyne, which concerns who must determine\na fact that increases the mandatory minimum, is not retroac-\ntive, Crayton v. United States, 799 F.3d 623, 624 (7th Cir. 2015),\nso the district court denied any relief based on Alleyne, Dist.\nCt. Order 9. 1\n The government moved to dismiss the motion as un-\ntimely. The district court found that there was no statutory\nbasis to ﬁnd his petition timely—it was ﬁled more than a year\nafter his conviction became ﬁnal, 28 U.S.C. § 2255(f)(1); more\nthan a year after the Supreme Court decided Burrage, id.\n§ 2255(f)(3); and more than a year after the evidence he pre-\nsented could have been discovered, id. § 2255(f)(4). Dist. Ct.\nOrder 4–7. The district court held that Lund was not entitled\n\n\n 1 Lund concedes on appeal that Alleyne is not retroactive, so it is “of\nlimited use now.” Br. Appellant 25.\n\f4 No. 16-2381\n\nto equitable tolling. Id. at 12–13. 2 It also held that he was una-\nble to use the actual innocence gateway exception to the stat-\nute of limitations, which would allow the court to hear his\notherwise barred claims, because this Court had not deter-\nmined “that an intervening change in law supports a claim of\nactual innocence.” Id. at 10. The court did not reach the merits\nof Lund’s claims, but it granted him a certiﬁcate of appeala-\nbility. This appeal followed.\n II. Discussion\n We review the district court’s legal conclusions de novo.\nColeman v. Lemke, 739 F.3d 342, 349 (7th Cir. 2014). Lund raises\none legal issue: whether an intervening change in law can\nserve as the basis for an actual innocence claim.\n “[A]ctual innocence, if proved, serves as a gateway\nthrough which a petitioner may pass whether the impedi-\nment is a procedural bar ... or ... expiration of the statute of\nlimitations.” McQuiggin v. Perkins, 569 U.S. 383, 386 (2013); see\nSchlup v. Delo, 513 U.S. 298, 317 (1995) (holding that a peti-\ntioner who procedurally defaults his claims can overcome the\nprocedural bar if he successfully raises a claim of actual inno-\ncence—that is, if he “raise[s] suﬃcient doubt about [his] guilt\nto undermine conﬁdence in the result”). The actual innocence\ngateway exception is “grounded in the ‘equitable discretion’\nof habeas courts to see that federal constitutional errors do not\nresult in the incarceration of innocent persons.” Herrera v. Col-\nlins, 506 U.S. 390, 404 (1993) (quoting McCleskey v. Zant, 499\nU.S. 467, 502 (1991)). To establish actual innocence, “a peti-\ntioner must show that it is more likely than not that no\n\n 2 Lund does not challenge the district court’s ruling on equitable toll-\ning, so we do not address it.\n\fNo. 16-2381 5\n\nreasonable juror would have found petitioner guilty beyond\na reasonable doubt.” Schlup, 513 U.S. at 327.\n The actual innocence exception certainly applies where\nthe petitioner has new evidence, like DNA evidence. See\nHouse v. Bell, 547 U.S. 518, 537 (2006). But this Court has never\nexplicitly held that it can be used in situations where a subse-\nquent change to the scope of a law renders the conduct the\npetitioner was convicted for no longer criminal. See Gladney v.\nPollard, 799 F.3d 889, 897 (7th Cir. 2015).\n We need not take a position on this issue, because even\nassuming that actual innocence could be predicated on a case\nsubstantively interpreting the law under which a petitioner\nwas convicted, it would not extend to this case.\n Lund is attempting to use Burrage as his claim for actual\ninnocence and his claim for relief on the merits. This is a prob-\nlem for two reasons. First, it is “doubtful” that a petitioner’s\nactual innocence claim and claim for relief on the merits can\nbe the same. See Perrone v. United States, 889 F.3d 898, 903 (7th\nCir. 2018). And second, even if it can, in this situation it would\ncompletely undermine the statute of limitations for bringing\ninitial § 2255 motions within one year from the date a new\nright is recognized by the Supreme Court.\n The actual innocence exception is merely a gateway\nthrough which a court can consider a petitioner’s otherwise\nbarred claims on their merits. See Herrera, 506 U.S. at 404–05.\nFraming the exception as a gateway presupposes that a peti-\ntioner will have underlying claims separate from the claim\nthat he is actually innocent. “The Supreme Court has not rec-\nognized a petitioner’s right to habeas relief based on a stand-\nalone claim of actual innocence.” Gladney, 799 F.3d at 895.\n\f6 No. 16-2381\n\nMoreover, “[t]he point of the exception is to ensure that ‘fed-\neral constitutional errors do not result in the incarceration of\ninnocent persons.’” Perrone, 889 F.3d at 903 (quoting Herrera,\n506 U.S. at 404). This suggests that the underlying claim must\nbe a constitutional claim, rather than a statutory claim like\nBurrage.\n Lund argues that he does not need to bring a separate con-\nstitutional claim because Burrage is itself cognizable in § 2255\nproceedings. By contrast, he argues, a state prisoner would\nneed to bring an underlying constitutional claim because nei-\nther a claim of actual innocence based on new evidence nor a\nclaim based on a state law error would be cognizable in a §\n2254 proceeding. We do not ﬁnd this persuasive. The Supreme\nCourt has never mentioned a diﬀerence in the purpose or ap-\nplication of the actual innocence exception between § 2254\nand § 2255 proceedings. Therefore, we concur that it is\n“doubtful” that Lund’s Burrage claim could be both his argu-\nment for actual innocence and his claim for relief. See id. at\n902–03 (holding that the parties’ assumption that a claim of\nactual innocence based on Burrage could do “double duty”\nwas “doubtful”).\n Lund also argues that he has raised underlying constitu-\ntional claims. We disagree. Lund claims that his pro se plead-\nings should have been construed to include an ineﬀective as-\nsistance of counsel claim. In his reply brief below, he argued\nthat his “main cause for not putting forth [a] petition in light\nof the Supreme Court’s decision in Alleyne [wa]s Ineﬀective\nAssistance of Counsel.” Reply Br. Pet’r 2, ECF No. 8; 3 see id. at\n3 (“With these facts in mind, if the court were to enforce\n\n 3 This ECF number refers to the district court’s docket.\n\fNo. 16-2381 7\n\nprocedural default/untimeliness, the result would be a funda-\nmental miscarriage of justice.”). The district court held that\nLund “d[id] not assert an ineﬀective assistance of counsel\nclaim in his petition.” Dist. Ct. Order 3 n.3. It read Lund’s ar-\ngument regarding his attorney’s eﬀectiveness to relate only to\nhis position that his claims should have been equitably tolled.\nId. Lund asserts that the district court should have construed\nhis reference to ineﬀective assistance of counsel as a request\nto amend his § 2255 claim to include a separate ineﬀective as-\nsistance of counsel claim, which then should have been\ngranted.\n The district court did not err. True, pro se pleadings must\nbe liberally construed, see McNeil v. United States, 508 U.S. 106,\n113 (1993), but Lund never indicated—neither in the title of\nhis response, nor its substance—that he was seeking to add a\nclaim. Instead, it appears from his pro se ﬁlings that he was\nseeking to use ineﬀective assistance of counsel as cause to ex-\ncuse his procedural default and untimeliness. Therefore, the\ndistrict court need not have construed Lund’s response as a\nrequest to amend. 4\n More to the point, allowing Burrage to serve as both\nLund’s basis for actual innocence and his claim for relief on\nthe merits directly contracts a Congressionally-imposed stat-\nute of limitations. McQuiggin, 569 U.S. at 386, involved the\ntime limit in 28 U.S.C. § 2244(d)(1)(D), which starts the clock\n\n 4 Lund also argues that his motion should have been construed to in-\nclude a Due Process claim based on Burrage. We will not consider this\nargument because it was raised for the first time in his reply brief, see\nUnited States v. Wescott, 576 F.3d 347, 354 (7th Cir. 2009), and because it\nwas not raised below, see Freeland v. Enodis Corp., 540 F.3d 721, 731 (7th\nCir. 2008).\n\f8 No. 16-2381\n\nfor the one-year limitation on the date when the facts of the\nclaim could have been discovered. Lund’s Burrage claim, by\ncontrast, is barred by the statute of limitations which prohibits\npetitioners from bringing habeas claims based on rights rec-\nognized by the Supreme Court, and made retroactively appli-\ncable to cases on collateral review, more than one year after\nthe right was recognized by the Court. See 28 U.S.C.\n§ 2255(f)(3).\n In McQuiggin, 569 U.S. at 397, the Supreme Court ex-\nplained that, as there is “no clear command [in § 2244(d)(1)]\ncountering the courts’ equitable authority to invoke the mis-\ncarriage of justice exception,” it survived the enactment of the\nAntiterrorism and Eﬀective Death Penalty Act of 1996\n(“AEDPA”), at least as it relates to the statutes of limitations\ncontained within that section. The Court noted, however, that\nother provisions of AEDPA did contain language modifying\nthe actual innocence exception. Compare Schlup, 513 U.S. at 327\n(“[A] petitioner must show that it is more likely than not that\nno reasonable juror would have found petitioner guilty be-\nyond a reasonable doubt.”), with § 2244(b)(1)(B) (providing\nthat a claim presented in a successive habeas petition that was\nnot presented in a prior § 2254 petition will be dismissed un-\nless the facts establish by clear and convincing evidence that\nno reasonable factﬁnder would have found the applicant\nguilty of the underlying oﬀense).\n Likewise, here, there is a clear statutory command limiting\ncourts’ equitable discretion to use the actual innocence gate-\nway to excuse failure to comply with § 2255(f)(3). Congress\nset a one-year limit for petitioners to bring § 2255 motions\nbased on new rights recognized by the Supreme Court. Al-\nlowing a claim like Burrage to serve as both the basis for actual\n\fNo. 16-2381 9\n\ninnocence and the basis for relief would render this statute of\nlimitations superﬂuous, at least as it applies to newly recog-\nnized statutory rights. Every time there is a retroactive inter-\npretation of a criminal law, petitioners convicted under it\nwould have an initial § 2255 claim based on the new interpre-\ntation indeﬁnitely.\n We aﬃrm the district court’s decision denying Lund’s\n§ 2255 motion as untimely. Lund’s § 2255 motion was conced-\nedly untimely and we hold that he cannot use the actual in-\nnocence gateway to overcome the statute of limitations in this\ncase.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4360207/", "author_raw": "trict Judge"}]}	KANNE	SYKES	DARROW	1		{"KANNE": ", Circuit", "SYKES": ", Circuit", "DARROW": ", Dis trict"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4582954/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Jason Lund v. United States\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-17\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 16-2381\nJASON M. LUND,\n Petitioner-Appellant,\n v.\n\nUNITED STATES OF AMERICA,\n Respondent-Appellee.\n ____________________\n\n Appeal from the United States District Court for the\n Eastern District of Wisconsin.\n No. 16-CV-119 — J.P. Stadtmueller, Judge.\n ____________________\n\n ARGUED OCTOBER 25, 2017— DECIDED JANUARY 17, 2019\n ____________________\n\n Before KANNE and SYKES, Circuit Judges, and DARROW, Dis-\ntrict Judge. ∗\n DARROW, District Judge. Petitioner Jason Lund appeals the\ndenial of his motion to vacate, set aside, or correct his sentence\nbrought pursuant to 28 U.S.C. § 2255. The district court con-\ncluded that Lund’s motion was untimely under each of the\n\n\n ∗ Of the Central District of Illinois, sitting by designation.\n\f2 No. 16-2381\n\npotential statutes of limitations and that Lund could not in-\nvoke the actual innocence exception to the statute of limita-\ntions because his claim of actual innocence was based on a\ncase that interpreted the substantive law of his conviction:\nBurrage v. United States, 571 U.S. 204 (2014). Lund challenges\nonly this conclusion, arguing that a claim of actual innocence\ncan be based on a change in the law. To resolve this case, how-\never, we need not rule on this issue. Even assuming actual in-\nnocence can be premised on a change in the law, Lund cannot\ntake advantage of the exception because he rests both his ac-\ntual innocence claim and his claim for relief on Burrage. We\naﬃrm.\n I. Background\n In 2008, Jason Lund and thirty others were charged via\nfederal indictment with conspiracy to distribute heroin in vi-\nolation of 21 U.S.C. § 841(a)(1). The indictment alleged that\nthe conspiracy resulted in overdose deaths of ﬁve individuals,\nincluding Andrew Goetzke and David Knuth, in violation of\n21 U.S.C. § 841(b)(1)(A). Lund pleaded guilty to the single-\ncount indictment, but denied responsibility for the deaths of\nGoetzke and Knuth, arguing that he had withdrawn from the\nconspiracy prior to their deaths. The district court judge re-\njected that argument and sentenced him in accordance with\nthe twenty-year mandatory minimum—sometimes referred\nto as the “death results” enhancement or penalty—under\n§ 841(b)(1)(A). Lund appealed and his sentence was aﬃrmed.\nUnited States v. Walker, 721 F.3d 828, 841 (7th Cir. 2013), judg-\nment vacated on other grounds, Lawler v. United States, 572 U.S.\n1111 (2014) (mem.). He did not ﬁle a petition for a writ of cer-\ntiorari, so his sentence became ﬁnal on October 1, 2013.\n\fNo. 16-2381 3\n\n On February 1, 2016, Lund ﬁled a motion to vacate, set\naside, or correct his sentence pursuant to 28 U.S.C. § 2255\nbased on two changes in the law occurring after his convic-\ntion. See Burrage, 571 U.S. at 211; Alleyne v. United States, 570\nU.S. 99, 102 (2013). In Burrage, 571 U.S. at 211, the Supreme\nCourt held that ﬁnding a defendant guilty of the “death re-\nsults” penalty “requires proof ‘that the harm would not have\noccurred in the absence of—that is, but for—the defendant’s\nconduct.’” (quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570\nU.S. 338, 346–47 (2013)). This but-for causation rule applies\nretroactively. Krieger v. United States, 842 F.3d 490, 499–500\n(7th Cir. 2016). In essence, Lund argued that under Burrage,\nhe is actually innocent of the “death results” enhancement be-\ncause the heroin he provided to Goetzke and Knuth was not\nthe but-for cause of their deaths. Dist. Ct. Order 7, Br. Appel-\nlant App. 1–15. Alleyne, which concerns who must determine\na fact that increases the mandatory minimum, is not retroac-\ntive, Crayton v. United States, 799 F.3d 623, 624 (7th Cir. 2015),\nso the district court denied any relief based on Alleyne, Dist.\nCt. Order 9. 1\n The government moved to dismiss the motion as un-\ntimely. The district court found that there was no statutory\nbasis to ﬁnd his petition timely—it was ﬁled more than a year\nafter his conviction became ﬁnal, 28 U.S.C. § 2255(f)(1); more\nthan a year after the Supreme Court decided Burrage, id.\n§ 2255(f)(3); and more than a year after the evidence he pre-\nsented could have been discovered, id. § 2255(f)(4). Dist. Ct.\nOrder 4–7. The district court held that Lund was not entitled\n\n\n 1 Lund concedes on appeal that Alleyne is not retroactive, so it is “of\nlimited use now.” Br. Appellant 25.\n\f4 No. 16-2381\n\nto equitable tolling. Id. at 12–13. 2 It also held that he was una-\nble to use the actual innocence gateway exception to the stat-\nute of limitations, which would allow the court to hear his\notherwise barred claims, because this Court had not deter-\nmined “that an intervening change in law supports a claim of\nactual innocence.” Id. at 10. The court did not reach the merits\nof Lund’s claims, but it granted him a certiﬁcate of appeala-\nbility. This appeal followed.\n II. Discussion\n We review the district court’s legal conclusions de novo.\nColeman v. Lemke, 739 F.3d 342, 349 (7th Cir. 2014). Lund raises\none legal issue: whether an intervening change in law can\nserve as the basis for an actual innocence claim.\n “[A]ctual innocence, if proved, serves as a gateway\nthrough which a petitioner may pass whether the impedi-\nment is a procedural bar ... or ... expiration of the statute of\nlimitations.” McQuiggin v. Perkins, 569 U.S. 383, 386 (2013); see\nSchlup v. Delo, 513 U.S. 298, 317 (1995) (holding that a peti-\ntioner who procedurally defaults his claims can overcome the\nprocedural bar if he successfully raises a claim of actual inno-\ncence—that is, if he “raise[s] suﬃcient doubt about [his] guilt\nto undermine conﬁdence in the result”). The actual innocence\ngateway exception is “grounded in the ‘equitable discretion’\nof habeas courts to see that federal constitutional errors do not\nresult in the incarceration of innocent persons.” Herrera v. Col-\nlins, 506 U.S. 390, 404 (1993) (quoting McCleskey v. Zant, 499\nU.S. 467, 502 (1991)). To establish actual innocence, “a peti-\ntioner must show that it is more likely than not that no\n\n 2 Lund does not challenge the district court’s ruling on equitable toll-\ning, so we do not address it.\n\fNo. 16-2381 5\n\nreasonable juror would have found petitioner guilty beyond\na reasonable doubt.” Schlup, 513 U.S. at 327.\n The actual innocence exception certainly applies where\nthe petitioner has new evidence, like DNA evidence. See\nHouse v. Bell, 547 U.S. 518, 537 (2006). But this Court has never\nexplicitly held that it can be used in situations where a subse-\nquent change to the scope of a law renders the conduct the\npetitioner was convicted for no longer criminal. See Gladney v.\nPollard, 799 F.3d 889, 897 (7th Cir. 2015).\n We need not take a position on this issue, because even\nassuming that actual innocence could be predicated on a case\nsubstantively interpreting the law under which a petitioner\nwas convicted, it would not extend to this case.\n Lund is attempting to use Burrage as his claim for actual\ninnocence and his claim for relief on the merits. This is a prob-\nlem for two reasons. First, it is “doubtful” that a petitioner’s\nactual innocence claim and claim for relief on the merits can\nbe the same. See Perrone v. United States, 889 F.3d 898, 903 (7th\nCir. 2018). And second, even if it can, in this situation it would\ncompletely undermine the statute of limitations for bringing\ninitial § 2255 motions within one year from the date a new\nright is recognized by the Supreme Court.\n The actual innocence exception is merely a gateway\nthrough which a court can consider a petitioner’s otherwise\nbarred claims on their merits. See Herrera, 506 U.S. at 404–05.\nFraming the exception as a gateway presupposes that a peti-\ntioner will have underlying claims separate from the claim\nthat he is actually innocent. “The Supreme Court has not rec-\nognized a petitioner’s right to habeas relief based on a stand-\nalone claim of actual innocence.” Gladney, 799 F.3d at 895.\n\f6 No. 16-2381\n\nMoreover, “[t]he point of the exception is to ensure that ‘fed-\neral constitutional errors do not result in the incarceration of\ninnocent persons.’” Perrone, 889 F.3d at 903 (quoting Herrera,\n506 U.S. at 404). This suggests that the underlying claim must\nbe a constitutional claim, rather than a statutory claim like\nBurrage.\n Lund argues that he does not need to bring a separate con-\nstitutional claim because Burrage is itself cognizable in § 2255\nproceedings. By contrast, he argues, a state prisoner would\nneed to bring an underlying constitutional claim because nei-\nther a claim of actual innocence based on new evidence nor a\nclaim based on a state law error would be cognizable in a §\n2254 proceeding. We do not ﬁnd this persuasive. The Supreme\nCourt has never mentioned a diﬀerence in the purpose or ap-\nplication of the actual innocence exception between § 2254\nand § 2255 proceedings. Therefore, we concur that it is\n“doubtful” that Lund’s Burrage claim could be both his argu-\nment for actual innocence and his claim for relief. See id. at\n902–03 (holding that the parties’ assumption that a claim of\nactual innocence based on Burrage could do “double duty”\nwas “doubtful”).\n Lund also argues that he has raised underlying constitu-\ntional claims. We disagree. Lund claims that his pro se plead-\nings should have been construed to include an ineﬀective as-\nsistance of counsel claim. In his reply brief below, he argued\nthat his “main cause for not putting forth [a] petition in light\nof the Supreme Court’s decision in Alleyne [wa]s Ineﬀective\nAssistance of Counsel.” Reply Br. Pet’r 2, ECF No. 8; 3 see id. at\n3 (“With these facts in mind, if the court were to enforce\n\n 3 This ECF number refers to the district court’s docket.\n\fNo. 16-2381 7\n\nprocedural default/untimeliness, the result would be a funda-\nmental miscarriage of justice.”). The district court held that\nLund “d[id] not assert an ineﬀective assistance of counsel\nclaim in his petition.” Dist. Ct. Order 3 n.3. It read Lund’s ar-\ngument regarding his attorney’s eﬀectiveness to relate only to\nhis position that his claims should have been equitably tolled.\nId. Lund asserts that the district court should have construed\nhis reference to ineﬀective assistance of counsel as a request\nto amend his § 2255 claim to include a separate ineﬀective as-\nsistance of counsel claim, which then should have been\ngranted.\n The district court did not err. True, pro se pleadings must\nbe liberally construed, see McNeil v. United States, 508 U.S. 106,\n113 (1993), but Lund never indicated—neither in the title of\nhis response, nor its substance—that he was seeking to add a\nclaim. Instead, it appears from his pro se ﬁlings that he was\nseeking to use ineﬀective assistance of counsel as cause to ex-\ncuse his procedural default and untimeliness. Therefore, the\ndistrict court need not have construed Lund’s response as a\nrequest to amend. 4\n More to the point, allowing Burrage to serve as both\nLund’s basis for actual innocence and his claim for relief on\nthe merits directly contracts a Congressionally-imposed stat-\nute of limitations. McQuiggin, 569 U.S. at 386, involved the\ntime limit in 28 U.S.C. § 2244(d)(1)(D), which starts the clock\n\n 4 Lund also argues that his motion should have been construed to in-\nclude a Due Process claim based on Burrage. We will not consider this\nargument because it was raised for the first time in his reply brief, see\nUnited States v. Wescott, 576 F.3d 347, 354 (7th Cir. 2009), and because it\nwas not raised below, see Freeland v. Enodis Corp., 540 F.3d 721, 731 (7th\nCir. 2008).\n\f8 No. 16-2381\n\nfor the one-year limitation on the date when the facts of the\nclaim could have been discovered. Lund’s Burrage claim, by\ncontrast, is barred by the statute of limitations which prohibits\npetitioners from bringing habeas claims based on rights rec-\nognized by the Supreme Court, and made retroactively appli-\ncable to cases on collateral review, more than one year after\nthe right was recognized by the Court. See 28 U.S.C.\n§ 2255(f)(3).\n In McQuiggin, 569 U.S. at 397, the Supreme Court ex-\nplained that, as there is “no clear command [in § 2244(d)(1)]\ncountering the courts’ equitable authority to invoke the mis-\ncarriage of justice exception,” it survived the enactment of the\nAntiterrorism and Eﬀective Death Penalty Act of 1996\n(“AEDPA”), at least as it relates to the statutes of limitations\ncontained within that section. The Court noted, however, that\nother provisions of AEDPA did contain language modifying\nthe actual innocence exception. Compare Schlup, 513 U.S. at 327\n(“[A] petitioner must show that it is more likely than not that\nno reasonable juror would have found petitioner guilty be-\nyond a reasonable doubt.”), with § 2244(b)(1)(B) (providing\nthat a claim presented in a successive habeas petition that was\nnot presented in a prior § 2254 petition will be dismissed un-\nless the facts establish by clear and convincing evidence that\nno reasonable factﬁnder would have found the applicant\nguilty of the underlying oﬀense).\n Likewise, here, there is a clear statutory command limiting\ncourts’ equitable discretion to use the actual innocence gate-\nway to excuse failure to comply with § 2255(f)(3). Congress\nset a one-year limit for petitioners to bring § 2255 motions\nbased on new rights recognized by the Supreme Court. Al-\nlowing a claim like Burrage to serve as both the basis for actual\n\fNo. 16-2381 9\n\ninnocence and the basis for relief would render this statute of\nlimitations superﬂuous, at least as it applies to newly recog-\nnized statutory rights. Every time there is a retroactive inter-\npretation of a criminal law, petitioners convicted under it\nwould have an initial § 2255 claim based on the new interpre-\ntation indeﬁnitely.\n We aﬃrm the district court’s decision denying Lund’s\n§ 2255 motion as untimely. Lund’s § 2255 motion was conced-\nedly untimely and we hold that he cannot use the actual in-\nnocence gateway to overcome the statute of limitations in this\ncase.\n[END_CASE]", "role": "user" } ]
4,582,953	Floyd MAY, Plaintiff-Appellant, v. Sylvia MAHONE, Et Al., Defendants-Appellees.	Floyd May v. Sylvia Mahone	2019-01-18	15-3395	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before FLAUM, RIPPLE, and ROVNER, Circuit Judges.", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 15-3395\nFLOYD MAY,\n Plaintiff-Appellant,\n v.\n\nSYLVIA MAHONE, et al.,\n Defendants-Appellees.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 1:11-cv-07503 — John W. Darrah, Judge.\n ____________________\n\n SUBMITTED OCTOBER 18, 2017 — DECIDED JANUARY 18, 2019\n ____________________\n\n Before FLAUM, RIPPLE, and ROVNER, Circuit Judges.\n PER CURIAM. In our earlier examination of this case, we\nquestioned whether Mr. May filed a timely notice of appeal\nfrom the decision of the district court but decided that we\nlacked sufficient information to answer that question. See May\n\n After examining the briefs and record, we have concluded that oral ar-\ngument is unnecessary. Thus, the appeal is submitted on the briefs and\nrecord. See Fed. R. App. P. 34(a)(2)(C).\n\f2 No. 15-3395\n\nv. Mahone, 876 F.3d 896, 898 (7th Cir. 2017). While retaining\njurisdiction over the case, we therefore ordered a limited re-\nmand to the district court with instructions to determine\nwhether Mr. May had submitted a notice of appeal on or be-\nfore August 10, 2015, in compliance with Rule 4(c) of the Fed-\neral Rules of Appellate Procedure. Id. at 899.\n On September 12, 2018, the district court, after affording\nthe parties an opportunity to engage in discovery, held a hear-\ning. The evidence consisted of the testimony of two witnesses\nand seven exhibits. Mr. May testified on his own behalf.\n The district court, upon evaluation of the evidence, held\nthat Mr. May had not carried the burden of establishing that\nhe mailed his notice of appeal in a timely fashion. Order, May\nv. Mahone, No. 11-cv-07503 (N.D. Ill. Oct. 10, 2018). Specifi-\ncally, the district court determined that Mr. May’s testimony\nlacked credibility and that the remaining evidence established\nthat the notice of appeal was not filed until sometime around\nOctober 15, 2015.\n The factual finding of the district court establishes that\nMr. May’s notice of appeal was filed outside of the time pre-\nscribed for such a filing. See id. at 897 (describing the compu-\ntation that fixed the deadline at August 19, 2015). Accord-\ningly, this court lacks jurisdiction over the appeal. See Hamer\nv. Neighborhood Hous. Servs. of Chicago, 138 S. Ct. 13, 16–17\n(2017) (statutory timelines for appeal are jurisdictional and\ncannot be waived, forfeited, or excused).\n The appeal is therefore dismissed.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4360206/", "author_raw": "PER CURIAM"}]}	FLAUM	RIPPLE	ROVNER	1		{"FLAUM": ", Circuit", "RIPPLE": ", Circuit", "ROVNER": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4582953/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Floyd MAY, Plaintiff-Appellant, v. Sylvia MAHONE, Et Al., Defendants-Appellees.\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-18\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 15-3395\nFLOYD MAY,\n Plaintiff-Appellant,\n v.\n\nSYLVIA MAHONE, et al.,\n Defendants-Appellees.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 1:11-cv-07503 — John W. Darrah, Judge.\n ____________________\n\n SUBMITTED OCTOBER 18, 2017 — DECIDED JANUARY 18, 2019\n ____________________\n\n Before FLAUM, RIPPLE, and ROVNER, Circuit Judges.\n PER CURIAM. In our earlier examination of this case, we\nquestioned whether Mr. May filed a timely notice of appeal\nfrom the decision of the district court but decided that we\nlacked sufficient information to answer that question. See May\n\n After examining the briefs and record, we have concluded that oral ar-\ngument is unnecessary. Thus, the appeal is submitted on the briefs and\nrecord. See Fed. R. App. P. 34(a)(2)(C).\n\f2 No. 15-3395\n\nv. Mahone, 876 F.3d 896, 898 (7th Cir. 2017). While retaining\njurisdiction over the case, we therefore ordered a limited re-\nmand to the district court with instructions to determine\nwhether Mr. May had submitted a notice of appeal on or be-\nfore August 10, 2015, in compliance with Rule 4(c) of the Fed-\neral Rules of Appellate Procedure. Id. at 899.\n On September 12, 2018, the district court, after affording\nthe parties an opportunity to engage in discovery, held a hear-\ning. The evidence consisted of the testimony of two witnesses\nand seven exhibits. Mr. May testified on his own behalf.\n The district court, upon evaluation of the evidence, held\nthat Mr. May had not carried the burden of establishing that\nhe mailed his notice of appeal in a timely fashion. Order, May\nv. Mahone, No. 11-cv-07503 (N.D. Ill. Oct. 10, 2018). Specifi-\ncally, the district court determined that Mr. May’s testimony\nlacked credibility and that the remaining evidence established\nthat the notice of appeal was not filed until sometime around\nOctober 15, 2015.\n The factual finding of the district court establishes that\nMr. May’s notice of appeal was filed outside of the time pre-\nscribed for such a filing. See id. at 897 (describing the compu-\ntation that fixed the deadline at August 19, 2015). Accord-\ningly, this court lacks jurisdiction over the appeal. See Hamer\nv. Neighborhood Hous. Servs. of Chicago, 138 S. Ct. 13, 16–17\n(2017) (statutory timelines for appeal are jurisdictional and\ncannot be waived, forfeited, or excused).\n The appeal is therefore dismissed.\n[END_CASE]", "role": "user" } ]
4,583,045		Floyd May v. Sylvia Mahone	2019-01-18	15-3395	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before FLAUM, RIPPLE, and ROVNER, Circuit Judges.", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 15-3395\nFLOYD MAY,\n Plaintiff-Appellant,\n v.\n\nSYLVIA MAHONE, et al.,\n Defendants-Appellees.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 1:11-cv-07503 — John W. Darrah, Judge.\n ____________________\n\n SUBMITTED OCTOBER 18, 2017 — DECIDED JANUARY 18, 2019\n ____________________\n\n Before FLAUM, RIPPLE, and ROVNER, Circuit Judges.\n PER CURIAM. In our earlier examination of this case, we\nquestioned whether Mr. May filed a timely notice of appeal\nfrom the decision of the district court but decided that we\nlacked sufficient information to answer that question. See May\n\n After examining the briefs and record, we have concluded that oral ar-\ngument is unnecessary. Thus, the appeal is submitted on the briefs and\nrecord. See Fed. R. App. P. 34(a)(2)(C).\n\f2 No. 15-3395\n\nv. Mahone, 876 F.3d 896, 898 (7th Cir. 2017). While retaining\njurisdiction over the case, we therefore ordered a limited re-\nmand to the district court with instructions to determine\nwhether Mr. May had submitted a notice of appeal on or be-\nfore August 10, 2015, in compliance with Rule 4(c) of the Fed-\neral Rules of Appellate Procedure. Id. at 899.\n On September 12, 2018, the district court, after affording\nthe parties an opportunity to engage in discovery, held a hear-\ning. The evidence consisted of the testimony of two witnesses\nand seven exhibits. Mr. May testified on his own behalf.\n The district court, upon evaluation of the evidence, held\nthat Mr. May had not carried the burden of establishing that\nhe mailed his notice of appeal in a timely fashion. Order, May\nv. Mahone, No. 11-cv-07503 (N.D. Ill. Oct. 10, 2018). Specifi-\ncally, the district court determined that Mr. May’s testimony\nlacked credibility and that the remaining evidence established\nthat the notice of appeal was not filed until sometime around\nOctober 15, 2015.\n The factual finding of the district court establishes that\nMr. May’s notice of appeal was filed outside of the time pre-\nscribed for such a filing. See id. at 897 (describing the compu-\ntation that fixed the deadline at August 19, 2015). Accord-\ningly, this court lacks jurisdiction over the appeal. See Hamer\nv. Neighborhood Hous. Servs. of Chicago, 138 S. Ct. 13, 16–17\n(2017) (statutory timelines for appeal are jurisdictional and\ncannot be waived, forfeited, or excused).\n The appeal is therefore dismissed.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4360298/", "author_raw": "PER CURIAM"}]}	FLAUM	RIPPLE	ROVNER	1		{"FLAUM": ", Circuit", "RIPPLE": ", Circuit", "ROVNER": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4583045/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Floyd May v. Sylvia Mahone\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-18\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 15-3395\nFLOYD MAY,\n Plaintiff-Appellant,\n v.\n\nSYLVIA MAHONE, et al.,\n Defendants-Appellees.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 1:11-cv-07503 — John W. Darrah, Judge.\n ____________________\n\n SUBMITTED OCTOBER 18, 2017 — DECIDED JANUARY 18, 2019\n ____________________\n\n Before FLAUM, RIPPLE, and ROVNER, Circuit Judges.\n PER CURIAM. In our earlier examination of this case, we\nquestioned whether Mr. May filed a timely notice of appeal\nfrom the decision of the district court but decided that we\nlacked sufficient information to answer that question. See May\n\n After examining the briefs and record, we have concluded that oral ar-\ngument is unnecessary. Thus, the appeal is submitted on the briefs and\nrecord. See Fed. R. App. P. 34(a)(2)(C).\n\f2 No. 15-3395\n\nv. Mahone, 876 F.3d 896, 898 (7th Cir. 2017). While retaining\njurisdiction over the case, we therefore ordered a limited re-\nmand to the district court with instructions to determine\nwhether Mr. May had submitted a notice of appeal on or be-\nfore August 10, 2015, in compliance with Rule 4(c) of the Fed-\neral Rules of Appellate Procedure. Id. at 899.\n On September 12, 2018, the district court, after affording\nthe parties an opportunity to engage in discovery, held a hear-\ning. The evidence consisted of the testimony of two witnesses\nand seven exhibits. Mr. May testified on his own behalf.\n The district court, upon evaluation of the evidence, held\nthat Mr. May had not carried the burden of establishing that\nhe mailed his notice of appeal in a timely fashion. Order, May\nv. Mahone, No. 11-cv-07503 (N.D. Ill. Oct. 10, 2018). Specifi-\ncally, the district court determined that Mr. May’s testimony\nlacked credibility and that the remaining evidence established\nthat the notice of appeal was not filed until sometime around\nOctober 15, 2015.\n The factual finding of the district court establishes that\nMr. May’s notice of appeal was filed outside of the time pre-\nscribed for such a filing. See id. at 897 (describing the compu-\ntation that fixed the deadline at August 19, 2015). Accord-\ningly, this court lacks jurisdiction over the appeal. See Hamer\nv. Neighborhood Hous. Servs. of Chicago, 138 S. Ct. 13, 16–17\n(2017) (statutory timelines for appeal are jurisdictional and\ncannot be waived, forfeited, or excused).\n The appeal is therefore dismissed.\n[END_CASE]", "role": "user" } ]
4,583,445	UNITED STATES of America, Plaintiff-Appellee, v. Scott B. GRIFFITH, Defendant-Appellant.	United States v. Scott Griffith	2019-01-22	18-1310	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Rovner, Sykes, Barrett", "parties": "", "opinions": [{"author": "Ilana Kara Diamond Rovner", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\nNo. 18-1310\n\nUNITED STATES OF AMERICA,\n Plaintiff-Appellee,\n\n v.\n\n\nSCOTT B. GRIFFITH,\n Defendant-Appellant.\n\n\n Appeal from the United States District Court for the\n Central District of Illinois.\n No. 4:16-cr-40010-SLD-1 — Sara Darrow, Judge.\n\n\n\n ARGUED NOVEMBER 7, 2018 — DECIDED JANUARY 22, 2019\n\n\n Before ROVNER, SYKES, and BARRETT, Circuit Judges.\n ROVNER, Circuit Judge. Scott B. Griffith pled guilty to a\nthree-count indictment that charged him with receiving,\ndistributing, and possessing child pornography. The district\ncourt sentenced him to 240 months’ imprisonment on each\ncount, to run concurrently, as well as a fifteen-year period of\nsupervised release. On appeal, he asserts that the district court\n\f2 No. 18-1310\n\ncommitted procedural error in calculating the guidelines\nrange, and that his resulting sentence is substantively unrea-\nsonable. We affirm.\n I.\n Griffith was charged with: (1) receiving four digital images\nof child pornography, in violation of 18 U.S.C.\n§§ 2252A(a)(2)(A) and 2252A(b)(1); (2) distributing three digital\nimages of child pornography (different than those received), in\nviolation of 18 U.S.C. §§ 2252A(a)(2)(A) and 2252A(b)(1); and\n(3) possessing visual depictions of child pornography in\naddition to those described in the receipt and distribution\ncounts, in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and\n2252A(b)(2). All tolled, Griffith’s crimes included 477 photo-\ngraphs and eleven videos of unspecified length. All counts\nwere alleged to have occurred during a three-month period\nnear the end of 2015, and all involved the use of Twitter\naccounts. Each time Twitter detected child pornography on\nGriffith’s account, the company closed the account and\nreported the inappropriate activity. Griffith created more than\ntwenty-five Twitter accounts during that three-month period\nin an attempt to thwart the company’s efforts, directing his\nfollowers from one account to the next.\n Prior to committing these crimes, Griffith, who was fifty-\ntwo years old at the time of his arrest, had amassed enough of\na criminal history to land him in Category V, only one level\nbelow the top of the scale. At the age of twenty, he had\nsexually abused a child under the age of thirteen, a conviction\nthat was too old to be counted for criminal history purposes.\nThe vast majority of his remaining criminal history was\n\fNo. 18-1310 3\n\ncomposed of driving offenses and thefts, some minor and some\nmore serious. Additionally, two women had sought and\nreceived orders of protection against Griffith after he threat-\nened them. His criminal record prior to this offense spanned\nnearly thirty years and a dozen of the previous offenses were\neither too old or too minor to be included in the calculation of\nhis criminal history.\n The Presentence Investigation Report (“PSR”)1 noted that\nthe base offense level for the three grouped counts was 22,\nciting U.S.S.G. § 2G2.2. An analysis of specific offense charac-\nteristics added 18 levels for a total of 40. In particular, the PSR\nadded two levels under section 2G2.2(b)(2) because the\nmaterial involved a prepubescent minor. Griffith solicited child\npornography on his Twitter pages in exchange for access to his\nown collection, leading to a five-level increase under section\n2G2.2(b)(3)(b), for distributing the pictures in exchange for\nnon-pecuniary, valuable consideration, a transaction some-\ntimes called a “peer-to-peer exchange.” Four levels were added\nunder section 2G2.2(b)(4)(A) and (B) for material that depicted\nviolence and sexual abuse or exploitation of a toddler. The use\nof a computer contributed two levels under section 2G2.2(b)(6).\nFinally, each of the eleven videos was treated as equivalent to\nseventy-five images which, when added to the 477 photo-\ngraphs, pushed the total images over 600 and added five levels\n\n1\n There are two versions of the PSR in the record, an original and a revised\nversion. The revised version includes an addendum that details the\ndefendant’s objections to the first PSR and the government’s response, as\nwell as some other revisions and recommendations. For the purpose of\ncalculating the offense level and criminal history category, the PSRs are\nessentially the same. We will note any differences when relevant.\n\f4 No. 18-1310\n\nunder section 2G2.2(b)(7)(D), for an adjusted offense level of\n40. After deducting three levels for acceptance of responsibil-\nity, the PSR set the total offense level at 37. Both versions of the\nPSR noted that the guidelines range for a total offense level of\n37 and a criminal history Category V is 324 to 405 months’\nimprisonment. Both PSRs took the position that Griffith’s prior\nconviction for sexual abuse qualified him for enhanced\nmandatory minimums under 18 U.S.C. § 2252A(b)(1), noting\nthat the enhanced terms for Counts I and II were fifteen to\nforty years. Count III carried a minimum of ten years and a\nmaximum of twenty years, assuming that the enhanced\npenalty applied. The revised PSR incorrectly stated that,\nwithout the enhanced mandatory minimums, the guidelines\nrange would be 240 months. Neither party noticed that error\nuntil the sentencing hearing, as we discuss below.\n Griffith filed a number of objections to the PSR in the\ndistrict court, largely falling into three categories. First, he\nobjected to the application of the “specific offense characteris-\ntics” provisions that added eighteen levels to the base offense\nlevel. He contended that the additional levels assessed against\nhim were based on “arbitrary, unreasonable and unwarranted\nsentencing factors which are inherent in the offense of convic-\ntion, and patently inconsistent with the purposes of Title 18\nU.S.C. Section 3553(a).” R. 18 at 1–2. He complained that the\n“rote application” of those provisions “yields a draconian\nguideline sentencing range of 324–405 months (27 to 33.75\nyears),” a result he characterized as “wholly incompatible”\nwith the section 3553(a) factors and “offensive to the ends of\njustice.” R. 18, at 2. The crux of Griffith’s objection was that\n\fNo. 18-1310 5\n\nguideline 2G2.2 is fundamentally flawed and that a below-\nguidelines sentence was warranted:\n In sum, Mr. Griffith’s objections to the specific\n offense characteristics being assessed against him\n are that the child pornography guidelines, as ap-\n plied to him on the facts of this case, are excessively\n harsh and fundamentally incompatible with the\n §3553(a) sentencing factors. … Accordingly, Mr.\n Griffith asks [for] a substantial downward variance\n from the guidelines at the time of sentencing.\nR. 18 at 6-7. Griffith’s second major objection was that the court\nshould not apply enhanced mandatory minimum terms\nagainst him based on his prior criminal sexual abuse convic-\ntion under 18 U.S.C. § 2252A(b)(1). The district court agreed\nwith this position, finding that the enhanced mandatory\nminimum terms did not apply to him, and that issue is not a\npart of this appeal. Finally, he maintained that Criminal\nHistory Category V over-represented his criminal history.\n At the sentencing hearing, after resolving the enhanced\nmandatory minimum issue in Griffith’s favor, the district court\nnoted that the statutory range for Counts I and II was five to\ntwenty years, and zero to twenty years for Count III. The court\nthen found that the total offense level was 37, the Criminal\nHistory was Category V, and the guidelines range (which had\nbeen calculated to be 324 to 405 months) would become 240\nmonths because of the statutory cap for each count. The court\nasked if the parties concurred “with the Court’s recitation as to\nthe applicable statutory and guideline provisions,” and both\n\f6 No. 18-1310\n\nparties replied, “Yes.” R. 37, Sent. Tr. at 19. The court then\nadopted the revised PSR and its addendum.\n After the parties presented argument regarding Griffith’s\nobjections and the section 3553(a) factors, the government\nasked the court to clarify the guidelines range. The government\npointed out that because Griffith pled guilty to three separate\noffenses involving discrete materials, his sentences could run\nconsecutively, meaning there was a sixty-year statutory cap,\nnot a twenty-year maximum. After asking the probation officer\nto check the calculation, the court announced:\n Yes. The gist is if I ran it consecutively, I could\n impose a guideline range sentence which would be\n the 324 to 405 months. In other words, the statutory\n cap here would be 60 years—…—if run consecu-\n tively. I understand that. … Do you want me to\n refine that? I mean, I think it was—I guess all I’ll say\n is I think it was an error for me to say earlier that the\n guideline range becomes the statutory cap because\n they could be run consecutively. … Is that an accu-\n rate assessment?\nR. 37, Sent. Tr. at 37-38. Defense counsel responded, “Yes.” Id.\n After the defendant made a statement, the court addressed\nthe section 3553(a) factors. In the midst of a thorough discus-\nsion of those factors, the court exhaustively addressed Grif-\nfith’s arguments regarding “the fairness of these guidelines.”\nR. 37, Sent. Tr. at 48. Catering her analysis to the facts of\nGriffith’s offenses, the judge found appropriate the two-level\nenhancement for material depicting prepubescent children, the\nfive-level addition for peer-to-peer exchange of material, and\n\fNo. 18-1310 7\n\nthe four-level bump for the violence of the images. The court\nnoted that it discounted the two-level enhancement for use of\na computer in nearly all cases because it was part of every\noffense and so “not applying the two-level enhancement in\nterms of a variance would be appropriate for use of [a] com-\nputer.” R. 37, Sent. Tr. at 49. On the number of images, the\ncourt noted that it lacked information regarding the length of\nthe videos or what was depicted on them, making it difficult to\ncompute a final number. She declined to use the “boilerplate”\ncomputation of 75 images per video, finding that a four-level\nenhancement for the number of images would be more\nappropriate than the five levels indicated by the guidelines for\n477 photographs and eleven videos:\n I think that the—so, the variance, if you want to call\n it that, for my recalculated guidelines would be 37.\n I think that would be the appropriate reflection of\n the seriousness of your conduct here.\nR. 37, Sent. Tr. at 50. The court then found that Criminal\nHistory Category V appropriately reflected Griffith’s criminal\nconduct over a lengthy span of time. Before announcing the\nsentence, the court remarked that Griffith was not the typical\nchild pornography defendant because most were level 34 with\na Criminal History Category I but Griffith was “squarely” a\nCategory V. R. 37, Sent. Tr. at 57. After defense counsel\nconfirmed that the court had addressed all of Griffith’s\narguments in mitigation, the judge sentenced Griffith to 240\nmonths’ imprisonment on each count, to run concurrently, as\nwell as a term of supervised release. Griffith appeals.\n\f8 No. 18-1310\n\n II.\n On appeal, Griffith contends that the district court commit-\nted procedural error when it failed to correctly calculate the\nguidelines sentence before imposing the 240-month sentence.\nHe also argues that the court imposed a substantively unrea-\nsonable sentence. We apply the abuse of discretion standard in\nreviewing whether sentencing decisions are reasonable. Gall v.\nUnited States, 552 U.S. 38, 46 (2007); United States v. Smith, 860\nF.3d 508, 514 (7th Cir. 2017). We first must ensure that the\ndistrict court committed no significant procedural error, such\nas incorrectly calculating the guidelines range, failing to\nconsider the section 3553(a) factors, selecting a sentence based\non clearly erroneous facts, or failing to explain adequately the\nchosen sentence. Gall, 552 U.S. at 51; Smith, 860 F.3d at 514.\nWhether the district court committed procedural error is a\nquestion of law that we review de novo. Smith, 860 F.3d at 514;\nUnited States v. Mendoza, 510 F.3d 749, 754 (7th Cir. 2007).\n In raising his procedural challenge, Griffith first asserts that\nthe court did not correctly calculate the guidelines range when\nit initially adopted the PSR addendum’s erroneous guidelines\ncalculation. He also maintains that the court failed to rule on a\nfinal guidelines range before pronouncing sentence. These\nobjections do not hold up to a fair reading of the sentencing\ntranscript.\n After adopting the revised PSR and its addendum during\nthe sentencing hearing, the court became aware that the\ndocument contained an error. The revised PSR calculated the\nguidelines range as 324 to 405 months if the enhanced manda-\ntory minimum applied, and as 240 months if that statutory\n\fNo. 18-1310 9\n\nenhancement did not apply. Prior to the hearing, neither party\nnoticed that the statutory cap was not limited to 240 months.\nGriffith had pled guilty to three counts, each with its own cap\nof twenty years (or 240 months), and those terms could be\nimposed consecutively for a total of sixty years. As we noted\nabove, the government alerted the judge to this error after she\nrejected the statutory enhancement and otherwise adopted the\nPSR. The court agreed with the government’s proposed\ncorrection and then found that the statutory maximum was\nsixty years. As the judge clarified at the sentencing hearing,\nthat meant that the guidelines range was not capped at twenty\nyears but was in fact 324 to 405 months, which was well within\nthe sixty-year cap. Both parties expressly agreed that this was\nan accurate assessment of the guidelines. In other words, the\ncourt was no longer adopting the PSR in its entirety but was\namending its earlier ruling to account for the corrected\nstatutory cap of sixty years, making the correct guidelines\nrange 324 to 405 months. An argument that the court erred in\ninitially adopting the erroneous PSR is a non-starter. The court\nrecognized and corrected that error before announcing the\nsentence. Any initial misstep was harmless because it did not\naffect the court’s choice of sentence. United States v. Morris, 775\nF.3d 882, 885 (7th Cir. 2015).\n Griffith next claims that the court re-analyzed the five\nspecific offense characteristics for section 2G2.2 but never\nrecalculated the guidelines to reflect that new analysis. He is\nreferring, of course, to the district court’s discussion of a\ndownward “variance” equivalent to two levels for use of a\ncomputer and one level for the total number of images. In\ncontext, however, it is clear that the court was not re-analyzing\n\f10 No. 18-1310\n\nthe specific offense characteristics in order to correct the\nguidelines calculation but rather was expressing disagreement\nwith the properly calculated guidelines sentence.\n After United States v. Booker, 543 U.S. 220 (2005), a sentenc-\ning judge has the discretion to disagree with a particular\nprovision of the guidelines and to impose a non-guidelines\nsentence that, in his or her judgment, is more consistent with\nthe statutory sentencing factors set out in section 3553(a).\nKimbrough v. United States, 552 U.S. 85 (2007); Smith, 860 F.3d at\n517; United States v. Rosales, 813 F.3d 634, 637 (7th Cir. 2016). In\nthe context of addressing the section 3553(a) factors, the court\nhere explained that it routinely varied downward the equiva-\nlent of two levels because child pornography offenses virtually\nalways involve the use of a computer, making the application\nof section 2G2.2(b)(6) inappropriate, in the court’s opinion. The\ncourt similarly disagreed with the “boilerplate” addition of\nseventy-five images for each video, allowing for a downward\nvariance equivalent to one level. The court then stated that “the\nvariance, if you want to call it that, for my recalculated\nguidelines would be 37.” R. 37, Sent. Tr. at 50. That mention of\nlevel 37 was likely a misstatement because it did not take into\naccount that the court had also adopted the PSR recommenda-\ntion to allow a three-level reduction for acceptance of responsi-\nbility, and so the variance was analogous to level 34, not level\n37. The misstatement had no effect on the sentence, however,\nbecause the court treated the variance as equivalent to a level\n34 sentence, not a level 37 sentence.\n In expressing its policy disagreement with the application\nof certain specific offense characteristics, the court simply\nanalogized the variance to reductions in particular specific\n\fNo. 18-1310 11\n\noffense characteristic levels. The court made this adjustment\nunder section 3553(a), and had no occasion to recalculate the\nfinal guidelines level. In Criminal History Category V, the\nanalogous level 34 sentence yields a guidelines range of 235 to\n293 months. The final sentence of 240 months is on the low end\nof a level 34 sentence and a full 84 months below the bottom of\nthe properly calculated guidelines range. If, as Griffith argues,\nthe court had mistakenly failed to account for acceptance of\nresponsibility when deciding how much to vary, the sentence\nwould have been significantly higher. We have no doubt that\nthe court was not correcting the guidelines calculation but was\nsimply explaining a downward variance under section 3553(a)\nfrom the properly calculated range by way of analogy to the\nguidelines.\n We emphasize that it was not necessary for the court to\nanalogize to the guidelines when explaining the downward\nvariance. United States v. Kuczora, 910 F.3d 904, 908 (7th Cir.\n2018) (“the sentencing court need not frame its explanation of\na sentence in terms of a departure from the guidelines range,\nbut may instead focus on the appropriateness of the sentence\nunder § 3553.”) (quoting United States v. Courtland, 642 F.3d\n545, 550 (7th Cir. 2011)). A court need only explain why a\nsentence is appropriate under the statutory criteria. Kuczora,\n910 F.3d at 908. So long as a court uses the properly calculated\nguidelines range as a starting point, it may explain a decision\nto vary from the range with reference to the section 3553(a)\nfactors alone. Kuczora, 910 F.3d at 908.\n We also note that the court had not found any error in the\nPSR’s calculation of the guidelines (other than the statutory cap\nissue we noted earlier) and had no reason to recalculate the\n\f12 No. 18-1310\n\nguidelines. The court’s Statement of Reasons explaining the\nsentence makes clear that the court intended for the three-level\nreduction to be a variance because of a policy disagreement\nwith the properly calculated guidelines, not a change to the\nguidelines calculation. R. 27, at 3, ¶ VI.D. And Griffith points\nto no error in the district court’s guidelines calculation here.\nIndeed, Griffith did not challenge the factual basis of the\nguidelines calculation or the final offense level in the district\ncourt. He argued instead that the resulting offense level was\ninconsistent with the purposes of sentencing expressed in\nsection 3553(a). He did not deny, for example, that some of the\nphotographs depicted prepubescent minors, or that certain\nimages portrayed violence towards and sexual abuse of\ntoddlers. He conceded that he offered access to his Twitter\naccounts in exchange for additional child pornography, that he\nused a computer and that his offenses involved more than 600\nimages when calculated under guidelines standards. But in\nconceding the basic facts underlying the calculation and the\nresult of the \"rote application\" of the guidelines provisions, he\nobjected only that the result produced a draconian and\nunjustified sentence. In light of all of the circumstances, the\nonly reasonable reading of the sentencing transcript is that the\ncourt understood and announced a correct calculation of the\nguidelines and then varied downward by analogy to certain\nguidelines factors during the discussion of the statutory\nfactors.\n Finally, we can quickly dispense with any claim that the\nfinal sentence was substantively unreasonable. When assessing\nthe substantive reasonableness of a sentence under the abuse\nof discretion standard, we presume that a within-guidelines\n\fNo. 18-1310 13\n\nsentence is reasonable. Rita v. United States, 551 U.S. 338,\n347–56 (2007); United States v. Moore, 851 F.3d 666, 674 (7th Cir.\n2017). That same presumption obviously applies to a below-\nguidelines sentence, such as the one imposed here. Moore, 851\nF.3d at 674. Griffith bears the burden of rebutting that pre-\nsumption by demonstrating that the sentence is unreasonably\nhigh in light of the section 3553(a) factors. United States v.\nMykytiuk, 415 F.3d 606, 608 (7th Cir. 2005).\n Griffith attempts to surmount that challenge by arguing\nthat his collection of child pornography was relatively small;\nthat his crimes involved no contact offenses; that a twenty-year\nterm was a de facto life sentence for a man of his age and health;\nthat the sentence was unnecessary to deter recidivism because\nof his age and the lengthy term of supervised release; and that\nsection 2G2.2 encourages unreasonably harsh sentences. The\ndistrict court carefully considered and addressed each of these\narguments, and Griffith’s claim on appeal amounts to a request\nthat we substitute our judgment for that of the district court. In\nthe usual course, it would be the government, not the defen-\ndant, arguing that the court abused its discretion by granting\na significantly below-guidelines sentence. In any case, the\ndistrict court did not abuse its discretion in granting Griffith an\neighty-four month break from the bottom of the properly-\ncalculated guidelines sentencing range, and the sentence was\nsubstantively reasonable.\n AFFIRMED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4360698/", "author_raw": "Ilana Kara Diamond Rovner"}]}	ROVNER	SYKES	BARRETT	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4583445/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Scott B. GRIFFITH, Defendant-Appellant.\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-22\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\nNo. 18-1310\n\nUNITED STATES OF AMERICA,\n Plaintiff-Appellee,\n\n v.\n\n\nSCOTT B. GRIFFITH,\n Defendant-Appellant.\n\n\n Appeal from the United States District Court for the\n Central District of Illinois.\n No. 4:16-cr-40010-SLD-1 — Sara Darrow, Judge.\n\n\n\n ARGUED NOVEMBER 7, 2018 — DECIDED JANUARY 22, 2019\n\n\n Before ROVNER, SYKES, and BARRETT, Circuit Judges.\n ROVNER, Circuit Judge. Scott B. Griffith pled guilty to a\nthree-count indictment that charged him with receiving,\ndistributing, and possessing child pornography. The district\ncourt sentenced him to 240 months’ imprisonment on each\ncount, to run concurrently, as well as a fifteen-year period of\nsupervised release. On appeal, he asserts that the district court\n\f2 No. 18-1310\n\ncommitted procedural error in calculating the guidelines\nrange, and that his resulting sentence is substantively unrea-\nsonable. We affirm.\n I.\n Griffith was charged with: (1) receiving four digital images\nof child pornography, in violation of 18 U.S.C.\n§§ 2252A(a)(2)(A) and 2252A(b)(1); (2) distributing three digital\nimages of child pornography (different than those received), in\nviolation of 18 U.S.C. §§ 2252A(a)(2)(A) and 2252A(b)(1); and\n(3) possessing visual depictions of child pornography in\naddition to those described in the receipt and distribution\ncounts, in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and\n2252A(b)(2). All tolled, Griffith’s crimes included 477 photo-\ngraphs and eleven videos of unspecified length. All counts\nwere alleged to have occurred during a three-month period\nnear the end of 2015, and all involved the use of Twitter\naccounts. Each time Twitter detected child pornography on\nGriffith’s account, the company closed the account and\nreported the inappropriate activity. Griffith created more than\ntwenty-five Twitter accounts during that three-month period\nin an attempt to thwart the company’s efforts, directing his\nfollowers from one account to the next.\n Prior to committing these crimes, Griffith, who was fifty-\ntwo years old at the time of his arrest, had amassed enough of\na criminal history to land him in Category V, only one level\nbelow the top of the scale. At the age of twenty, he had\nsexually abused a child under the age of thirteen, a conviction\nthat was too old to be counted for criminal history purposes.\nThe vast majority of his remaining criminal history was\n\fNo. 18-1310 3\n\ncomposed of driving offenses and thefts, some minor and some\nmore serious. Additionally, two women had sought and\nreceived orders of protection against Griffith after he threat-\nened them. His criminal record prior to this offense spanned\nnearly thirty years and a dozen of the previous offenses were\neither too old or too minor to be included in the calculation of\nhis criminal history.\n The Presentence Investigation Report (“PSR”)1 noted that\nthe base offense level for the three grouped counts was 22,\nciting U.S.S.G. § 2G2.2. An analysis of specific offense charac-\nteristics added 18 levels for a total of 40. In particular, the PSR\nadded two levels under section 2G2.2(b)(2) because the\nmaterial involved a prepubescent minor. Griffith solicited child\npornography on his Twitter pages in exchange for access to his\nown collection, leading to a five-level increase under section\n2G2.2(b)(3)(b), for distributing the pictures in exchange for\nnon-pecuniary, valuable consideration, a transaction some-\ntimes called a “peer-to-peer exchange.” Four levels were added\nunder section 2G2.2(b)(4)(A) and (B) for material that depicted\nviolence and sexual abuse or exploitation of a toddler. The use\nof a computer contributed two levels under section 2G2.2(b)(6).\nFinally, each of the eleven videos was treated as equivalent to\nseventy-five images which, when added to the 477 photo-\ngraphs, pushed the total images over 600 and added five levels\n\n1\n There are two versions of the PSR in the record, an original and a revised\nversion. The revised version includes an addendum that details the\ndefendant’s objections to the first PSR and the government’s response, as\nwell as some other revisions and recommendations. For the purpose of\ncalculating the offense level and criminal history category, the PSRs are\nessentially the same. We will note any differences when relevant.\n\f4 No. 18-1310\n\nunder section 2G2.2(b)(7)(D), for an adjusted offense level of\n40. After deducting three levels for acceptance of responsibil-\nity, the PSR set the total offense level at 37. Both versions of the\nPSR noted that the guidelines range for a total offense level of\n37 and a criminal history Category V is 324 to 405 months’\nimprisonment. Both PSRs took the position that Griffith’s prior\nconviction for sexual abuse qualified him for enhanced\nmandatory minimums under 18 U.S.C. § 2252A(b)(1), noting\nthat the enhanced terms for Counts I and II were fifteen to\nforty years. Count III carried a minimum of ten years and a\nmaximum of twenty years, assuming that the enhanced\npenalty applied. The revised PSR incorrectly stated that,\nwithout the enhanced mandatory minimums, the guidelines\nrange would be 240 months. Neither party noticed that error\nuntil the sentencing hearing, as we discuss below.\n Griffith filed a number of objections to the PSR in the\ndistrict court, largely falling into three categories. First, he\nobjected to the application of the “specific offense characteris-\ntics” provisions that added eighteen levels to the base offense\nlevel. He contended that the additional levels assessed against\nhim were based on “arbitrary, unreasonable and unwarranted\nsentencing factors which are inherent in the offense of convic-\ntion, and patently inconsistent with the purposes of Title 18\nU.S.C. Section 3553(a).” R. 18 at 1–2. He complained that the\n“rote application” of those provisions “yields a draconian\nguideline sentencing range of 324–405 months (27 to 33.75\nyears),” a result he characterized as “wholly incompatible”\nwith the section 3553(a) factors and “offensive to the ends of\njustice.” R. 18, at 2. The crux of Griffith’s objection was that\n\fNo. 18-1310 5\n\nguideline 2G2.2 is fundamentally flawed and that a below-\nguidelines sentence was warranted:\n In sum, Mr. Griffith’s objections to the specific\n offense characteristics being assessed against him\n are that the child pornography guidelines, as ap-\n plied to him on the facts of this case, are excessively\n harsh and fundamentally incompatible with the\n §3553(a) sentencing factors. … Accordingly, Mr.\n Griffith asks [for] a substantial downward variance\n from the guidelines at the time of sentencing.\nR. 18 at 6-7. Griffith’s second major objection was that the court\nshould not apply enhanced mandatory minimum terms\nagainst him based on his prior criminal sexual abuse convic-\ntion under 18 U.S.C. § 2252A(b)(1). The district court agreed\nwith this position, finding that the enhanced mandatory\nminimum terms did not apply to him, and that issue is not a\npart of this appeal. Finally, he maintained that Criminal\nHistory Category V over-represented his criminal history.\n At the sentencing hearing, after resolving the enhanced\nmandatory minimum issue in Griffith’s favor, the district court\nnoted that the statutory range for Counts I and II was five to\ntwenty years, and zero to twenty years for Count III. The court\nthen found that the total offense level was 37, the Criminal\nHistory was Category V, and the guidelines range (which had\nbeen calculated to be 324 to 405 months) would become 240\nmonths because of the statutory cap for each count. The court\nasked if the parties concurred “with the Court’s recitation as to\nthe applicable statutory and guideline provisions,” and both\n\f6 No. 18-1310\n\nparties replied, “Yes.” R. 37, Sent. Tr. at 19. The court then\nadopted the revised PSR and its addendum.\n After the parties presented argument regarding Griffith’s\nobjections and the section 3553(a) factors, the government\nasked the court to clarify the guidelines range. The government\npointed out that because Griffith pled guilty to three separate\noffenses involving discrete materials, his sentences could run\nconsecutively, meaning there was a sixty-year statutory cap,\nnot a twenty-year maximum. After asking the probation officer\nto check the calculation, the court announced:\n Yes. The gist is if I ran it consecutively, I could\n impose a guideline range sentence which would be\n the 324 to 405 months. In other words, the statutory\n cap here would be 60 years—…—if run consecu-\n tively. I understand that. … Do you want me to\n refine that? I mean, I think it was—I guess all I’ll say\n is I think it was an error for me to say earlier that the\n guideline range becomes the statutory cap because\n they could be run consecutively. … Is that an accu-\n rate assessment?\nR. 37, Sent. Tr. at 37-38. Defense counsel responded, “Yes.” Id.\n After the defendant made a statement, the court addressed\nthe section 3553(a) factors. In the midst of a thorough discus-\nsion of those factors, the court exhaustively addressed Grif-\nfith’s arguments regarding “the fairness of these guidelines.”\nR. 37, Sent. Tr. at 48. Catering her analysis to the facts of\nGriffith’s offenses, the judge found appropriate the two-level\nenhancement for material depicting prepubescent children, the\nfive-level addition for peer-to-peer exchange of material, and\n\fNo. 18-1310 7\n\nthe four-level bump for the violence of the images. The court\nnoted that it discounted the two-level enhancement for use of\na computer in nearly all cases because it was part of every\noffense and so “not applying the two-level enhancement in\nterms of a variance would be appropriate for use of [a] com-\nputer.” R. 37, Sent. Tr. at 49. On the number of images, the\ncourt noted that it lacked information regarding the length of\nthe videos or what was depicted on them, making it difficult to\ncompute a final number. She declined to use the “boilerplate”\ncomputation of 75 images per video, finding that a four-level\nenhancement for the number of images would be more\nappropriate than the five levels indicated by the guidelines for\n477 photographs and eleven videos:\n I think that the—so, the variance, if you want to call\n it that, for my recalculated guidelines would be 37.\n I think that would be the appropriate reflection of\n the seriousness of your conduct here.\nR. 37, Sent. Tr. at 50. The court then found that Criminal\nHistory Category V appropriately reflected Griffith’s criminal\nconduct over a lengthy span of time. Before announcing the\nsentence, the court remarked that Griffith was not the typical\nchild pornography defendant because most were level 34 with\na Criminal History Category I but Griffith was “squarely” a\nCategory V. R. 37, Sent. Tr. at 57. After defense counsel\nconfirmed that the court had addressed all of Griffith’s\narguments in mitigation, the judge sentenced Griffith to 240\nmonths’ imprisonment on each count, to run concurrently, as\nwell as a term of supervised release. Griffith appeals.\n\f8 No. 18-1310\n\n II.\n On appeal, Griffith contends that the district court commit-\nted procedural error when it failed to correctly calculate the\nguidelines sentence before imposing the 240-month sentence.\nHe also argues that the court imposed a substantively unrea-\nsonable sentence. We apply the abuse of discretion standard in\nreviewing whether sentencing decisions are reasonable. Gall v.\nUnited States, 552 U.S. 38, 46 (2007); United States v. Smith, 860\nF.3d 508, 514 (7th Cir. 2017). We first must ensure that the\ndistrict court committed no significant procedural error, such\nas incorrectly calculating the guidelines range, failing to\nconsider the section 3553(a) factors, selecting a sentence based\non clearly erroneous facts, or failing to explain adequately the\nchosen sentence. Gall, 552 U.S. at 51; Smith, 860 F.3d at 514.\nWhether the district court committed procedural error is a\nquestion of law that we review de novo. Smith, 860 F.3d at 514;\nUnited States v. Mendoza, 510 F.3d 749, 754 (7th Cir. 2007).\n In raising his procedural challenge, Griffith first asserts that\nthe court did not correctly calculate the guidelines range when\nit initially adopted the PSR addendum’s erroneous guidelines\ncalculation. He also maintains that the court failed to rule on a\nfinal guidelines range before pronouncing sentence. These\nobjections do not hold up to a fair reading of the sentencing\ntranscript.\n After adopting the revised PSR and its addendum during\nthe sentencing hearing, the court became aware that the\ndocument contained an error. The revised PSR calculated the\nguidelines range as 324 to 405 months if the enhanced manda-\ntory minimum applied, and as 240 months if that statutory\n\fNo. 18-1310 9\n\nenhancement did not apply. Prior to the hearing, neither party\nnoticed that the statutory cap was not limited to 240 months.\nGriffith had pled guilty to three counts, each with its own cap\nof twenty years (or 240 months), and those terms could be\nimposed consecutively for a total of sixty years. As we noted\nabove, the government alerted the judge to this error after she\nrejected the statutory enhancement and otherwise adopted the\nPSR. The court agreed with the government’s proposed\ncorrection and then found that the statutory maximum was\nsixty years. As the judge clarified at the sentencing hearing,\nthat meant that the guidelines range was not capped at twenty\nyears but was in fact 324 to 405 months, which was well within\nthe sixty-year cap. Both parties expressly agreed that this was\nan accurate assessment of the guidelines. In other words, the\ncourt was no longer adopting the PSR in its entirety but was\namending its earlier ruling to account for the corrected\nstatutory cap of sixty years, making the correct guidelines\nrange 324 to 405 months. An argument that the court erred in\ninitially adopting the erroneous PSR is a non-starter. The court\nrecognized and corrected that error before announcing the\nsentence. Any initial misstep was harmless because it did not\naffect the court’s choice of sentence. United States v. Morris, 775\nF.3d 882, 885 (7th Cir. 2015).\n Griffith next claims that the court re-analyzed the five\nspecific offense characteristics for section 2G2.2 but never\nrecalculated the guidelines to reflect that new analysis. He is\nreferring, of course, to the district court’s discussion of a\ndownward “variance” equivalent to two levels for use of a\ncomputer and one level for the total number of images. In\ncontext, however, it is clear that the court was not re-analyzing\n\f10 No. 18-1310\n\nthe specific offense characteristics in order to correct the\nguidelines calculation but rather was expressing disagreement\nwith the properly calculated guidelines sentence.\n After United States v. Booker, 543 U.S. 220 (2005), a sentenc-\ning judge has the discretion to disagree with a particular\nprovision of the guidelines and to impose a non-guidelines\nsentence that, in his or her judgment, is more consistent with\nthe statutory sentencing factors set out in section 3553(a).\nKimbrough v. United States, 552 U.S. 85 (2007); Smith, 860 F.3d at\n517; United States v. Rosales, 813 F.3d 634, 637 (7th Cir. 2016). In\nthe context of addressing the section 3553(a) factors, the court\nhere explained that it routinely varied downward the equiva-\nlent of two levels because child pornography offenses virtually\nalways involve the use of a computer, making the application\nof section 2G2.2(b)(6) inappropriate, in the court’s opinion. The\ncourt similarly disagreed with the “boilerplate” addition of\nseventy-five images for each video, allowing for a downward\nvariance equivalent to one level. The court then stated that “the\nvariance, if you want to call it that, for my recalculated\nguidelines would be 37.” R. 37, Sent. Tr. at 50. That mention of\nlevel 37 was likely a misstatement because it did not take into\naccount that the court had also adopted the PSR recommenda-\ntion to allow a three-level reduction for acceptance of responsi-\nbility, and so the variance was analogous to level 34, not level\n37. The misstatement had no effect on the sentence, however,\nbecause the court treated the variance as equivalent to a level\n34 sentence, not a level 37 sentence.\n In expressing its policy disagreement with the application\nof certain specific offense characteristics, the court simply\nanalogized the variance to reductions in particular specific\n\fNo. 18-1310 11\n\noffense characteristic levels. The court made this adjustment\nunder section 3553(a), and had no occasion to recalculate the\nfinal guidelines level. In Criminal History Category V, the\nanalogous level 34 sentence yields a guidelines range of 235 to\n293 months. The final sentence of 240 months is on the low end\nof a level 34 sentence and a full 84 months below the bottom of\nthe properly calculated guidelines range. If, as Griffith argues,\nthe court had mistakenly failed to account for acceptance of\nresponsibility when deciding how much to vary, the sentence\nwould have been significantly higher. We have no doubt that\nthe court was not correcting the guidelines calculation but was\nsimply explaining a downward variance under section 3553(a)\nfrom the properly calculated range by way of analogy to the\nguidelines.\n We emphasize that it was not necessary for the court to\nanalogize to the guidelines when explaining the downward\nvariance. United States v. Kuczora, 910 F.3d 904, 908 (7th Cir.\n2018) (“the sentencing court need not frame its explanation of\na sentence in terms of a departure from the guidelines range,\nbut may instead focus on the appropriateness of the sentence\nunder § 3553.”) (quoting United States v. Courtland, 642 F.3d\n545, 550 (7th Cir. 2011)). A court need only explain why a\nsentence is appropriate under the statutory criteria. Kuczora,\n910 F.3d at 908. So long as a court uses the properly calculated\nguidelines range as a starting point, it may explain a decision\nto vary from the range with reference to the section 3553(a)\nfactors alone. Kuczora, 910 F.3d at 908.\n We also note that the court had not found any error in the\nPSR’s calculation of the guidelines (other than the statutory cap\nissue we noted earlier) and had no reason to recalculate the\n\f12 No. 18-1310\n\nguidelines. The court’s Statement of Reasons explaining the\nsentence makes clear that the court intended for the three-level\nreduction to be a variance because of a policy disagreement\nwith the properly calculated guidelines, not a change to the\nguidelines calculation. R. 27, at 3, ¶ VI.D. And Griffith points\nto no error in the district court’s guidelines calculation here.\nIndeed, Griffith did not challenge the factual basis of the\nguidelines calculation or the final offense level in the district\ncourt. He argued instead that the resulting offense level was\ninconsistent with the purposes of sentencing expressed in\nsection 3553(a). He did not deny, for example, that some of the\nphotographs depicted prepubescent minors, or that certain\nimages portrayed violence towards and sexual abuse of\ntoddlers. He conceded that he offered access to his Twitter\naccounts in exchange for additional child pornography, that he\nused a computer and that his offenses involved more than 600\nimages when calculated under guidelines standards. But in\nconceding the basic facts underlying the calculation and the\nresult of the \"rote application\" of the guidelines provisions, he\nobjected only that the result produced a draconian and\nunjustified sentence. In light of all of the circumstances, the\nonly reasonable reading of the sentencing transcript is that the\ncourt understood and announced a correct calculation of the\nguidelines and then varied downward by analogy to certain\nguidelines factors during the discussion of the statutory\nfactors.\n Finally, we can quickly dispense with any claim that the\nfinal sentence was substantively unreasonable. When assessing\nthe substantive reasonableness of a sentence under the abuse\nof discretion standard, we presume that a within-guidelines\n\fNo. 18-1310 13\n\nsentence is reasonable. Rita v. United States, 551 U.S. 338,\n347–56 (2007); United States v. Moore, 851 F.3d 666, 674 (7th Cir.\n2017). That same presumption obviously applies to a below-\nguidelines sentence, such as the one imposed here. Moore, 851\nF.3d at 674. Griffith bears the burden of rebutting that pre-\nsumption by demonstrating that the sentence is unreasonably\nhigh in light of the section 3553(a) factors. United States v.\nMykytiuk, 415 F.3d 606, 608 (7th Cir. 2005).\n Griffith attempts to surmount that challenge by arguing\nthat his collection of child pornography was relatively small;\nthat his crimes involved no contact offenses; that a twenty-year\nterm was a de facto life sentence for a man of his age and health;\nthat the sentence was unnecessary to deter recidivism because\nof his age and the lengthy term of supervised release; and that\nsection 2G2.2 encourages unreasonably harsh sentences. The\ndistrict court carefully considered and addressed each of these\narguments, and Griffith’s claim on appeal amounts to a request\nthat we substitute our judgment for that of the district court. In\nthe usual course, it would be the government, not the defen-\ndant, arguing that the court abused its discretion by granting\na significantly below-guidelines sentence. In any case, the\ndistrict court did not abuse its discretion in granting Griffith an\neighty-four month break from the bottom of the properly-\ncalculated guidelines sentencing range, and the sentence was\nsubstantively reasonable.\n AFFIRMED.\n[END_CASE]", "role": "user" } ]
4,583,537		United States v. Scott Griffith	2019-01-22	18-1310	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before ROVNER, SYKES, and BARRETT, Circuit Judges.", "parties": "", "opinions": [{"author": "Ilana Kara Diamond Rovner", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\nNo. 18-1310\n\nUNITED STATES OF AMERICA,\n Plaintiff-Appellee,\n\n v.\n\n\nSCOTT B. GRIFFITH,\n Defendant-Appellant.\n\n\n Appeal from the United States District Court for the\n Central District of Illinois.\n No. 4:16-cr-40010-SLD-1 — Sara Darrow, Judge.\n\n\n\n ARGUED NOVEMBER 7, 2018 — DECIDED JANUARY 22, 2019\n\n\n Before ROVNER, SYKES, and BARRETT, Circuit Judges.\n ROVNER, Circuit Judge. Scott B. Griffith pled guilty to a\nthree-count indictment that charged him with receiving,\ndistributing, and possessing child pornography. The district\ncourt sentenced him to 240 months’ imprisonment on each\ncount, to run concurrently, as well as a fifteen-year period of\nsupervised release. On appeal, he asserts that the district court\n\f2 No. 18-1310\n\ncommitted procedural error in calculating the guidelines\nrange, and that his resulting sentence is substantively unrea-\nsonable. We affirm.\n I.\n Griffith was charged with: (1) receiving four digital images\nof child pornography, in violation of 18 U.S.C.\n§§ 2252A(a)(2)(A) and 2252A(b)(1); (2) distributing three digital\nimages of child pornography (different than those received), in\nviolation of 18 U.S.C. §§ 2252A(a)(2)(A) and 2252A(b)(1); and\n(3) possessing visual depictions of child pornography in\naddition to those described in the receipt and distribution\ncounts, in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and\n2252A(b)(2). All tolled, Griffith’s crimes included 477 photo-\ngraphs and eleven videos of unspecified length. All counts\nwere alleged to have occurred during a three-month period\nnear the end of 2015, and all involved the use of Twitter\naccounts. Each time Twitter detected child pornography on\nGriffith’s account, the company closed the account and\nreported the inappropriate activity. Griffith created more than\ntwenty-five Twitter accounts during that three-month period\nin an attempt to thwart the company’s efforts, directing his\nfollowers from one account to the next.\n Prior to committing these crimes, Griffith, who was fifty-\ntwo years old at the time of his arrest, had amassed enough of\na criminal history to land him in Category V, only one level\nbelow the top of the scale. At the age of twenty, he had\nsexually abused a child under the age of thirteen, a conviction\nthat was too old to be counted for criminal history purposes.\nThe vast majority of his remaining criminal history was\n\fNo. 18-1310 3\n\ncomposed of driving offenses and thefts, some minor and some\nmore serious. Additionally, two women had sought and\nreceived orders of protection against Griffith after he threat-\nened them. His criminal record prior to this offense spanned\nnearly thirty years and a dozen of the previous offenses were\neither too old or too minor to be included in the calculation of\nhis criminal history.\n The Presentence Investigation Report (“PSR”)1 noted that\nthe base offense level for the three grouped counts was 22,\nciting U.S.S.G. § 2G2.2. An analysis of specific offense charac-\nteristics added 18 levels for a total of 40. In particular, the PSR\nadded two levels under section 2G2.2(b)(2) because the\nmaterial involved a prepubescent minor. Griffith solicited child\npornography on his Twitter pages in exchange for access to his\nown collection, leading to a five-level increase under section\n2G2.2(b)(3)(b), for distributing the pictures in exchange for\nnon-pecuniary, valuable consideration, a transaction some-\ntimes called a “peer-to-peer exchange.” Four levels were added\nunder section 2G2.2(b)(4)(A) and (B) for material that depicted\nviolence and sexual abuse or exploitation of a toddler. The use\nof a computer contributed two levels under section 2G2.2(b)(6).\nFinally, each of the eleven videos was treated as equivalent to\nseventy-five images which, when added to the 477 photo-\ngraphs, pushed the total images over 600 and added five levels\n\n1\n There are two versions of the PSR in the record, an original and a revised\nversion. The revised version includes an addendum that details the\ndefendant’s objections to the first PSR and the government’s response, as\nwell as some other revisions and recommendations. For the purpose of\ncalculating the offense level and criminal history category, the PSRs are\nessentially the same. We will note any differences when relevant.\n\f4 No. 18-1310\n\nunder section 2G2.2(b)(7)(D), for an adjusted offense level of\n40. After deducting three levels for acceptance of responsibil-\nity, the PSR set the total offense level at 37. Both versions of the\nPSR noted that the guidelines range for a total offense level of\n37 and a criminal history Category V is 324 to 405 months’\nimprisonment. Both PSRs took the position that Griffith’s prior\nconviction for sexual abuse qualified him for enhanced\nmandatory minimums under 18 U.S.C. § 2252A(b)(1), noting\nthat the enhanced terms for Counts I and II were fifteen to\nforty years. Count III carried a minimum of ten years and a\nmaximum of twenty years, assuming that the enhanced\npenalty applied. The revised PSR incorrectly stated that,\nwithout the enhanced mandatory minimums, the guidelines\nrange would be 240 months. Neither party noticed that error\nuntil the sentencing hearing, as we discuss below.\n Griffith filed a number of objections to the PSR in the\ndistrict court, largely falling into three categories. First, he\nobjected to the application of the “specific offense characteris-\ntics” provisions that added eighteen levels to the base offense\nlevel. He contended that the additional levels assessed against\nhim were based on “arbitrary, unreasonable and unwarranted\nsentencing factors which are inherent in the offense of convic-\ntion, and patently inconsistent with the purposes of Title 18\nU.S.C. Section 3553(a).” R. 18 at 1–2. He complained that the\n“rote application” of those provisions “yields a draconian\nguideline sentencing range of 324–405 months (27 to 33.75\nyears),” a result he characterized as “wholly incompatible”\nwith the section 3553(a) factors and “offensive to the ends of\njustice.” R. 18, at 2. The crux of Griffith’s objection was that\n\fNo. 18-1310 5\n\nguideline 2G2.2 is fundamentally flawed and that a below-\nguidelines sentence was warranted:\n In sum, Mr. Griffith’s objections to the specific\n offense characteristics being assessed against him\n are that the child pornography guidelines, as ap-\n plied to him on the facts of this case, are excessively\n harsh and fundamentally incompatible with the\n §3553(a) sentencing factors. … Accordingly, Mr.\n Griffith asks [for] a substantial downward variance\n from the guidelines at the time of sentencing.\nR. 18 at 6-7. Griffith’s second major objection was that the court\nshould not apply enhanced mandatory minimum terms\nagainst him based on his prior criminal sexual abuse convic-\ntion under 18 U.S.C. § 2252A(b)(1). The district court agreed\nwith this position, finding that the enhanced mandatory\nminimum terms did not apply to him, and that issue is not a\npart of this appeal. Finally, he maintained that Criminal\nHistory Category V over-represented his criminal history.\n At the sentencing hearing, after resolving the enhanced\nmandatory minimum issue in Griffith’s favor, the district court\nnoted that the statutory range for Counts I and II was five to\ntwenty years, and zero to twenty years for Count III. The court\nthen found that the total offense level was 37, the Criminal\nHistory was Category V, and the guidelines range (which had\nbeen calculated to be 324 to 405 months) would become 240\nmonths because of the statutory cap for each count. The court\nasked if the parties concurred “with the Court’s recitation as to\nthe applicable statutory and guideline provisions,” and both\n\f6 No. 18-1310\n\nparties replied, “Yes.” R. 37, Sent. Tr. at 19. The court then\nadopted the revised PSR and its addendum.\n After the parties presented argument regarding Griffith’s\nobjections and the section 3553(a) factors, the government\nasked the court to clarify the guidelines range. The government\npointed out that because Griffith pled guilty to three separate\noffenses involving discrete materials, his sentences could run\nconsecutively, meaning there was a sixty-year statutory cap,\nnot a twenty-year maximum. After asking the probation officer\nto check the calculation, the court announced:\n Yes. The gist is if I ran it consecutively, I could\n impose a guideline range sentence which would be\n the 324 to 405 months. In other words, the statutory\n cap here would be 60 years—…—if run consecu-\n tively. I understand that. … Do you want me to\n refine that? I mean, I think it was—I guess all I’ll say\n is I think it was an error for me to say earlier that the\n guideline range becomes the statutory cap because\n they could be run consecutively. … Is that an accu-\n rate assessment?\nR. 37, Sent. Tr. at 37-38. Defense counsel responded, “Yes.” Id.\n After the defendant made a statement, the court addressed\nthe section 3553(a) factors. In the midst of a thorough discus-\nsion of those factors, the court exhaustively addressed Grif-\nfith’s arguments regarding “the fairness of these guidelines.”\nR. 37, Sent. Tr. at 48. Catering her analysis to the facts of\nGriffith’s offenses, the judge found appropriate the two-level\nenhancement for material depicting prepubescent children, the\nfive-level addition for peer-to-peer exchange of material, and\n\fNo. 18-1310 7\n\nthe four-level bump for the violence of the images. The court\nnoted that it discounted the two-level enhancement for use of\na computer in nearly all cases because it was part of every\noffense and so “not applying the two-level enhancement in\nterms of a variance would be appropriate for use of [a] com-\nputer.” R. 37, Sent. Tr. at 49. On the number of images, the\ncourt noted that it lacked information regarding the length of\nthe videos or what was depicted on them, making it difficult to\ncompute a final number. She declined to use the “boilerplate”\ncomputation of 75 images per video, finding that a four-level\nenhancement for the number of images would be more\nappropriate than the five levels indicated by the guidelines for\n477 photographs and eleven videos:\n I think that the—so, the variance, if you want to call\n it that, for my recalculated guidelines would be 37.\n I think that would be the appropriate reflection of\n the seriousness of your conduct here.\nR. 37, Sent. Tr. at 50. The court then found that Criminal\nHistory Category V appropriately reflected Griffith’s criminal\nconduct over a lengthy span of time. Before announcing the\nsentence, the court remarked that Griffith was not the typical\nchild pornography defendant because most were level 34 with\na Criminal History Category I but Griffith was “squarely” a\nCategory V. R. 37, Sent. Tr. at 57. After defense counsel\nconfirmed that the court had addressed all of Griffith’s\narguments in mitigation, the judge sentenced Griffith to 240\nmonths’ imprisonment on each count, to run concurrently, as\nwell as a term of supervised release. Griffith appeals.\n\f8 No. 18-1310\n\n II.\n On appeal, Griffith contends that the district court commit-\nted procedural error when it failed to correctly calculate the\nguidelines sentence before imposing the 240-month sentence.\nHe also argues that the court imposed a substantively unrea-\nsonable sentence. We apply the abuse of discretion standard in\nreviewing whether sentencing decisions are reasonable. Gall v.\nUnited States, 552 U.S. 38, 46 (2007); United States v. Smith, 860\nF.3d 508, 514 (7th Cir. 2017). We first must ensure that the\ndistrict court committed no significant procedural error, such\nas incorrectly calculating the guidelines range, failing to\nconsider the section 3553(a) factors, selecting a sentence based\non clearly erroneous facts, or failing to explain adequately the\nchosen sentence. Gall, 552 U.S. at 51; Smith, 860 F.3d at 514.\nWhether the district court committed procedural error is a\nquestion of law that we review de novo. Smith, 860 F.3d at 514;\nUnited States v. Mendoza, 510 F.3d 749, 754 (7th Cir. 2007).\n In raising his procedural challenge, Griffith first asserts that\nthe court did not correctly calculate the guidelines range when\nit initially adopted the PSR addendum’s erroneous guidelines\ncalculation. He also maintains that the court failed to rule on a\nfinal guidelines range before pronouncing sentence. These\nobjections do not hold up to a fair reading of the sentencing\ntranscript.\n After adopting the revised PSR and its addendum during\nthe sentencing hearing, the court became aware that the\ndocument contained an error. The revised PSR calculated the\nguidelines range as 324 to 405 months if the enhanced manda-\ntory minimum applied, and as 240 months if that statutory\n\fNo. 18-1310 9\n\nenhancement did not apply. Prior to the hearing, neither party\nnoticed that the statutory cap was not limited to 240 months.\nGriffith had pled guilty to three counts, each with its own cap\nof twenty years (or 240 months), and those terms could be\nimposed consecutively for a total of sixty years. As we noted\nabove, the government alerted the judge to this error after she\nrejected the statutory enhancement and otherwise adopted the\nPSR. The court agreed with the government’s proposed\ncorrection and then found that the statutory maximum was\nsixty years. As the judge clarified at the sentencing hearing,\nthat meant that the guidelines range was not capped at twenty\nyears but was in fact 324 to 405 months, which was well within\nthe sixty-year cap. Both parties expressly agreed that this was\nan accurate assessment of the guidelines. In other words, the\ncourt was no longer adopting the PSR in its entirety but was\namending its earlier ruling to account for the corrected\nstatutory cap of sixty years, making the correct guidelines\nrange 324 to 405 months. An argument that the court erred in\ninitially adopting the erroneous PSR is a non-starter. The court\nrecognized and corrected that error before announcing the\nsentence. Any initial misstep was harmless because it did not\naffect the court’s choice of sentence. United States v. Morris, 775\nF.3d 882, 885 (7th Cir. 2015).\n Griffith next claims that the court re-analyzed the five\nspecific offense characteristics for section 2G2.2 but never\nrecalculated the guidelines to reflect that new analysis. He is\nreferring, of course, to the district court’s discussion of a\ndownward “variance” equivalent to two levels for use of a\ncomputer and one level for the total number of images. In\ncontext, however, it is clear that the court was not re-analyzing\n\f10 No. 18-1310\n\nthe specific offense characteristics in order to correct the\nguidelines calculation but rather was expressing disagreement\nwith the properly calculated guidelines sentence.\n After United States v. Booker, 543 U.S. 220 (2005), a sentenc-\ning judge has the discretion to disagree with a particular\nprovision of the guidelines and to impose a non-guidelines\nsentence that, in his or her judgment, is more consistent with\nthe statutory sentencing factors set out in section 3553(a).\nKimbrough v. United States, 552 U.S. 85 (2007); Smith, 860 F.3d at\n517; United States v. Rosales, 813 F.3d 634, 637 (7th Cir. 2016). In\nthe context of addressing the section 3553(a) factors, the court\nhere explained that it routinely varied downward the equiva-\nlent of two levels because child pornography offenses virtually\nalways involve the use of a computer, making the application\nof section 2G2.2(b)(6) inappropriate, in the court’s opinion. The\ncourt similarly disagreed with the “boilerplate” addition of\nseventy-five images for each video, allowing for a downward\nvariance equivalent to one level. The court then stated that “the\nvariance, if you want to call it that, for my recalculated\nguidelines would be 37.” R. 37, Sent. Tr. at 50. That mention of\nlevel 37 was likely a misstatement because it did not take into\naccount that the court had also adopted the PSR recommenda-\ntion to allow a three-level reduction for acceptance of responsi-\nbility, and so the variance was analogous to level 34, not level\n37. The misstatement had no effect on the sentence, however,\nbecause the court treated the variance as equivalent to a level\n34 sentence, not a level 37 sentence.\n In expressing its policy disagreement with the application\nof certain specific offense characteristics, the court simply\nanalogized the variance to reductions in particular specific\n\fNo. 18-1310 11\n\noffense characteristic levels. The court made this adjustment\nunder section 3553(a), and had no occasion to recalculate the\nfinal guidelines level. In Criminal History Category V, the\nanalogous level 34 sentence yields a guidelines range of 235 to\n293 months. The final sentence of 240 months is on the low end\nof a level 34 sentence and a full 84 months below the bottom of\nthe properly calculated guidelines range. If, as Griffith argues,\nthe court had mistakenly failed to account for acceptance of\nresponsibility when deciding how much to vary, the sentence\nwould have been significantly higher. We have no doubt that\nthe court was not correcting the guidelines calculation but was\nsimply explaining a downward variance under section 3553(a)\nfrom the properly calculated range by way of analogy to the\nguidelines.\n We emphasize that it was not necessary for the court to\nanalogize to the guidelines when explaining the downward\nvariance. United States v. Kuczora, 910 F.3d 904, 908 (7th Cir.\n2018) (“the sentencing court need not frame its explanation of\na sentence in terms of a departure from the guidelines range,\nbut may instead focus on the appropriateness of the sentence\nunder § 3553.”) (quoting United States v. Courtland, 642 F.3d\n545, 550 (7th Cir. 2011)). A court need only explain why a\nsentence is appropriate under the statutory criteria. Kuczora,\n910 F.3d at 908. So long as a court uses the properly calculated\nguidelines range as a starting point, it may explain a decision\nto vary from the range with reference to the section 3553(a)\nfactors alone. Kuczora, 910 F.3d at 908.\n We also note that the court had not found any error in the\nPSR’s calculation of the guidelines (other than the statutory cap\nissue we noted earlier) and had no reason to recalculate the\n\f12 No. 18-1310\n\nguidelines. The court’s Statement of Reasons explaining the\nsentence makes clear that the court intended for the three-level\nreduction to be a variance because of a policy disagreement\nwith the properly calculated guidelines, not a change to the\nguidelines calculation. R. 27, at 3, ¶ VI.D. And Griffith points\nto no error in the district court’s guidelines calculation here.\nIndeed, Griffith did not challenge the factual basis of the\nguidelines calculation or the final offense level in the district\ncourt. He argued instead that the resulting offense level was\ninconsistent with the purposes of sentencing expressed in\nsection 3553(a). He did not deny, for example, that some of the\nphotographs depicted prepubescent minors, or that certain\nimages portrayed violence towards and sexual abuse of\ntoddlers. He conceded that he offered access to his Twitter\naccounts in exchange for additional child pornography, that he\nused a computer and that his offenses involved more than 600\nimages when calculated under guidelines standards. But in\nconceding the basic facts underlying the calculation and the\nresult of the \"rote application\" of the guidelines provisions, he\nobjected only that the result produced a draconian and\nunjustified sentence. In light of all of the circumstances, the\nonly reasonable reading of the sentencing transcript is that the\ncourt understood and announced a correct calculation of the\nguidelines and then varied downward by analogy to certain\nguidelines factors during the discussion of the statutory\nfactors.\n Finally, we can quickly dispense with any claim that the\nfinal sentence was substantively unreasonable. When assessing\nthe substantive reasonableness of a sentence under the abuse\nof discretion standard, we presume that a within-guidelines\n\fNo. 18-1310 13\n\nsentence is reasonable. Rita v. United States, 551 U.S. 338,\n347–56 (2007); United States v. Moore, 851 F.3d 666, 674 (7th Cir.\n2017). That same presumption obviously applies to a below-\nguidelines sentence, such as the one imposed here. Moore, 851\nF.3d at 674. Griffith bears the burden of rebutting that pre-\nsumption by demonstrating that the sentence is unreasonably\nhigh in light of the section 3553(a) factors. United States v.\nMykytiuk, 415 F.3d 606, 608 (7th Cir. 2005).\n Griffith attempts to surmount that challenge by arguing\nthat his collection of child pornography was relatively small;\nthat his crimes involved no contact offenses; that a twenty-year\nterm was a de facto life sentence for a man of his age and health;\nthat the sentence was unnecessary to deter recidivism because\nof his age and the lengthy term of supervised release; and that\nsection 2G2.2 encourages unreasonably harsh sentences. The\ndistrict court carefully considered and addressed each of these\narguments, and Griffith’s claim on appeal amounts to a request\nthat we substitute our judgment for that of the district court. In\nthe usual course, it would be the government, not the defen-\ndant, arguing that the court abused its discretion by granting\na significantly below-guidelines sentence. In any case, the\ndistrict court did not abuse its discretion in granting Griffith an\neighty-four month break from the bottom of the properly-\ncalculated guidelines sentencing range, and the sentence was\nsubstantively reasonable.\n AFFIRMED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4360790/", "author_raw": "Ilana Kara Diamond Rovner"}]}	ROVNER	SYKES	BARRETT	1		{"ROVNER": ", Circuit", "SYKES": ", Circuit", "BARRETT": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4583537/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: United States v. Scott Griffith\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-22\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\nNo. 18-1310\n\nUNITED STATES OF AMERICA,\n Plaintiff-Appellee,\n\n v.\n\n\nSCOTT B. GRIFFITH,\n Defendant-Appellant.\n\n\n Appeal from the United States District Court for the\n Central District of Illinois.\n No. 4:16-cr-40010-SLD-1 — Sara Darrow, Judge.\n\n\n\n ARGUED NOVEMBER 7, 2018 — DECIDED JANUARY 22, 2019\n\n\n Before ROVNER, SYKES, and BARRETT, Circuit Judges.\n ROVNER, Circuit Judge. Scott B. Griffith pled guilty to a\nthree-count indictment that charged him with receiving,\ndistributing, and possessing child pornography. The district\ncourt sentenced him to 240 months’ imprisonment on each\ncount, to run concurrently, as well as a fifteen-year period of\nsupervised release. On appeal, he asserts that the district court\n\f2 No. 18-1310\n\ncommitted procedural error in calculating the guidelines\nrange, and that his resulting sentence is substantively unrea-\nsonable. We affirm.\n I.\n Griffith was charged with: (1) receiving four digital images\nof child pornography, in violation of 18 U.S.C.\n§§ 2252A(a)(2)(A) and 2252A(b)(1); (2) distributing three digital\nimages of child pornography (different than those received), in\nviolation of 18 U.S.C. §§ 2252A(a)(2)(A) and 2252A(b)(1); and\n(3) possessing visual depictions of child pornography in\naddition to those described in the receipt and distribution\ncounts, in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and\n2252A(b)(2). All tolled, Griffith’s crimes included 477 photo-\ngraphs and eleven videos of unspecified length. All counts\nwere alleged to have occurred during a three-month period\nnear the end of 2015, and all involved the use of Twitter\naccounts. Each time Twitter detected child pornography on\nGriffith’s account, the company closed the account and\nreported the inappropriate activity. Griffith created more than\ntwenty-five Twitter accounts during that three-month period\nin an attempt to thwart the company’s efforts, directing his\nfollowers from one account to the next.\n Prior to committing these crimes, Griffith, who was fifty-\ntwo years old at the time of his arrest, had amassed enough of\na criminal history to land him in Category V, only one level\nbelow the top of the scale. At the age of twenty, he had\nsexually abused a child under the age of thirteen, a conviction\nthat was too old to be counted for criminal history purposes.\nThe vast majority of his remaining criminal history was\n\fNo. 18-1310 3\n\ncomposed of driving offenses and thefts, some minor and some\nmore serious. Additionally, two women had sought and\nreceived orders of protection against Griffith after he threat-\nened them. His criminal record prior to this offense spanned\nnearly thirty years and a dozen of the previous offenses were\neither too old or too minor to be included in the calculation of\nhis criminal history.\n The Presentence Investigation Report (“PSR”)1 noted that\nthe base offense level for the three grouped counts was 22,\nciting U.S.S.G. § 2G2.2. An analysis of specific offense charac-\nteristics added 18 levels for a total of 40. In particular, the PSR\nadded two levels under section 2G2.2(b)(2) because the\nmaterial involved a prepubescent minor. Griffith solicited child\npornography on his Twitter pages in exchange for access to his\nown collection, leading to a five-level increase under section\n2G2.2(b)(3)(b), for distributing the pictures in exchange for\nnon-pecuniary, valuable consideration, a transaction some-\ntimes called a “peer-to-peer exchange.” Four levels were added\nunder section 2G2.2(b)(4)(A) and (B) for material that depicted\nviolence and sexual abuse or exploitation of a toddler. The use\nof a computer contributed two levels under section 2G2.2(b)(6).\nFinally, each of the eleven videos was treated as equivalent to\nseventy-five images which, when added to the 477 photo-\ngraphs, pushed the total images over 600 and added five levels\n\n1\n There are two versions of the PSR in the record, an original and a revised\nversion. The revised version includes an addendum that details the\ndefendant’s objections to the first PSR and the government’s response, as\nwell as some other revisions and recommendations. For the purpose of\ncalculating the offense level and criminal history category, the PSRs are\nessentially the same. We will note any differences when relevant.\n\f4 No. 18-1310\n\nunder section 2G2.2(b)(7)(D), for an adjusted offense level of\n40. After deducting three levels for acceptance of responsibil-\nity, the PSR set the total offense level at 37. Both versions of the\nPSR noted that the guidelines range for a total offense level of\n37 and a criminal history Category V is 324 to 405 months’\nimprisonment. Both PSRs took the position that Griffith’s prior\nconviction for sexual abuse qualified him for enhanced\nmandatory minimums under 18 U.S.C. § 2252A(b)(1), noting\nthat the enhanced terms for Counts I and II were fifteen to\nforty years. Count III carried a minimum of ten years and a\nmaximum of twenty years, assuming that the enhanced\npenalty applied. The revised PSR incorrectly stated that,\nwithout the enhanced mandatory minimums, the guidelines\nrange would be 240 months. Neither party noticed that error\nuntil the sentencing hearing, as we discuss below.\n Griffith filed a number of objections to the PSR in the\ndistrict court, largely falling into three categories. First, he\nobjected to the application of the “specific offense characteris-\ntics” provisions that added eighteen levels to the base offense\nlevel. He contended that the additional levels assessed against\nhim were based on “arbitrary, unreasonable and unwarranted\nsentencing factors which are inherent in the offense of convic-\ntion, and patently inconsistent with the purposes of Title 18\nU.S.C. Section 3553(a).” R. 18 at 1–2. He complained that the\n“rote application” of those provisions “yields a draconian\nguideline sentencing range of 324–405 months (27 to 33.75\nyears),” a result he characterized as “wholly incompatible”\nwith the section 3553(a) factors and “offensive to the ends of\njustice.” R. 18, at 2. The crux of Griffith’s objection was that\n\fNo. 18-1310 5\n\nguideline 2G2.2 is fundamentally flawed and that a below-\nguidelines sentence was warranted:\n In sum, Mr. Griffith’s objections to the specific\n offense characteristics being assessed against him\n are that the child pornography guidelines, as ap-\n plied to him on the facts of this case, are excessively\n harsh and fundamentally incompatible with the\n §3553(a) sentencing factors. … Accordingly, Mr.\n Griffith asks [for] a substantial downward variance\n from the guidelines at the time of sentencing.\nR. 18 at 6-7. Griffith’s second major objection was that the court\nshould not apply enhanced mandatory minimum terms\nagainst him based on his prior criminal sexual abuse convic-\ntion under 18 U.S.C. § 2252A(b)(1). The district court agreed\nwith this position, finding that the enhanced mandatory\nminimum terms did not apply to him, and that issue is not a\npart of this appeal. Finally, he maintained that Criminal\nHistory Category V over-represented his criminal history.\n At the sentencing hearing, after resolving the enhanced\nmandatory minimum issue in Griffith’s favor, the district court\nnoted that the statutory range for Counts I and II was five to\ntwenty years, and zero to twenty years for Count III. The court\nthen found that the total offense level was 37, the Criminal\nHistory was Category V, and the guidelines range (which had\nbeen calculated to be 324 to 405 months) would become 240\nmonths because of the statutory cap for each count. The court\nasked if the parties concurred “with the Court’s recitation as to\nthe applicable statutory and guideline provisions,” and both\n\f6 No. 18-1310\n\nparties replied, “Yes.” R. 37, Sent. Tr. at 19. The court then\nadopted the revised PSR and its addendum.\n After the parties presented argument regarding Griffith’s\nobjections and the section 3553(a) factors, the government\nasked the court to clarify the guidelines range. The government\npointed out that because Griffith pled guilty to three separate\noffenses involving discrete materials, his sentences could run\nconsecutively, meaning there was a sixty-year statutory cap,\nnot a twenty-year maximum. After asking the probation officer\nto check the calculation, the court announced:\n Yes. The gist is if I ran it consecutively, I could\n impose a guideline range sentence which would be\n the 324 to 405 months. In other words, the statutory\n cap here would be 60 years—…—if run consecu-\n tively. I understand that. … Do you want me to\n refine that? I mean, I think it was—I guess all I’ll say\n is I think it was an error for me to say earlier that the\n guideline range becomes the statutory cap because\n they could be run consecutively. … Is that an accu-\n rate assessment?\nR. 37, Sent. Tr. at 37-38. Defense counsel responded, “Yes.” Id.\n After the defendant made a statement, the court addressed\nthe section 3553(a) factors. In the midst of a thorough discus-\nsion of those factors, the court exhaustively addressed Grif-\nfith’s arguments regarding “the fairness of these guidelines.”\nR. 37, Sent. Tr. at 48. Catering her analysis to the facts of\nGriffith’s offenses, the judge found appropriate the two-level\nenhancement for material depicting prepubescent children, the\nfive-level addition for peer-to-peer exchange of material, and\n\fNo. 18-1310 7\n\nthe four-level bump for the violence of the images. The court\nnoted that it discounted the two-level enhancement for use of\na computer in nearly all cases because it was part of every\noffense and so “not applying the two-level enhancement in\nterms of a variance would be appropriate for use of [a] com-\nputer.” R. 37, Sent. Tr. at 49. On the number of images, the\ncourt noted that it lacked information regarding the length of\nthe videos or what was depicted on them, making it difficult to\ncompute a final number. She declined to use the “boilerplate”\ncomputation of 75 images per video, finding that a four-level\nenhancement for the number of images would be more\nappropriate than the five levels indicated by the guidelines for\n477 photographs and eleven videos:\n I think that the—so, the variance, if you want to call\n it that, for my recalculated guidelines would be 37.\n I think that would be the appropriate reflection of\n the seriousness of your conduct here.\nR. 37, Sent. Tr. at 50. The court then found that Criminal\nHistory Category V appropriately reflected Griffith’s criminal\nconduct over a lengthy span of time. Before announcing the\nsentence, the court remarked that Griffith was not the typical\nchild pornography defendant because most were level 34 with\na Criminal History Category I but Griffith was “squarely” a\nCategory V. R. 37, Sent. Tr. at 57. After defense counsel\nconfirmed that the court had addressed all of Griffith’s\narguments in mitigation, the judge sentenced Griffith to 240\nmonths’ imprisonment on each count, to run concurrently, as\nwell as a term of supervised release. Griffith appeals.\n\f8 No. 18-1310\n\n II.\n On appeal, Griffith contends that the district court commit-\nted procedural error when it failed to correctly calculate the\nguidelines sentence before imposing the 240-month sentence.\nHe also argues that the court imposed a substantively unrea-\nsonable sentence. We apply the abuse of discretion standard in\nreviewing whether sentencing decisions are reasonable. Gall v.\nUnited States, 552 U.S. 38, 46 (2007); United States v. Smith, 860\nF.3d 508, 514 (7th Cir. 2017). We first must ensure that the\ndistrict court committed no significant procedural error, such\nas incorrectly calculating the guidelines range, failing to\nconsider the section 3553(a) factors, selecting a sentence based\non clearly erroneous facts, or failing to explain adequately the\nchosen sentence. Gall, 552 U.S. at 51; Smith, 860 F.3d at 514.\nWhether the district court committed procedural error is a\nquestion of law that we review de novo. Smith, 860 F.3d at 514;\nUnited States v. Mendoza, 510 F.3d 749, 754 (7th Cir. 2007).\n In raising his procedural challenge, Griffith first asserts that\nthe court did not correctly calculate the guidelines range when\nit initially adopted the PSR addendum’s erroneous guidelines\ncalculation. He also maintains that the court failed to rule on a\nfinal guidelines range before pronouncing sentence. These\nobjections do not hold up to a fair reading of the sentencing\ntranscript.\n After adopting the revised PSR and its addendum during\nthe sentencing hearing, the court became aware that the\ndocument contained an error. The revised PSR calculated the\nguidelines range as 324 to 405 months if the enhanced manda-\ntory minimum applied, and as 240 months if that statutory\n\fNo. 18-1310 9\n\nenhancement did not apply. Prior to the hearing, neither party\nnoticed that the statutory cap was not limited to 240 months.\nGriffith had pled guilty to three counts, each with its own cap\nof twenty years (or 240 months), and those terms could be\nimposed consecutively for a total of sixty years. As we noted\nabove, the government alerted the judge to this error after she\nrejected the statutory enhancement and otherwise adopted the\nPSR. The court agreed with the government’s proposed\ncorrection and then found that the statutory maximum was\nsixty years. As the judge clarified at the sentencing hearing,\nthat meant that the guidelines range was not capped at twenty\nyears but was in fact 324 to 405 months, which was well within\nthe sixty-year cap. Both parties expressly agreed that this was\nan accurate assessment of the guidelines. In other words, the\ncourt was no longer adopting the PSR in its entirety but was\namending its earlier ruling to account for the corrected\nstatutory cap of sixty years, making the correct guidelines\nrange 324 to 405 months. An argument that the court erred in\ninitially adopting the erroneous PSR is a non-starter. The court\nrecognized and corrected that error before announcing the\nsentence. Any initial misstep was harmless because it did not\naffect the court’s choice of sentence. United States v. Morris, 775\nF.3d 882, 885 (7th Cir. 2015).\n Griffith next claims that the court re-analyzed the five\nspecific offense characteristics for section 2G2.2 but never\nrecalculated the guidelines to reflect that new analysis. He is\nreferring, of course, to the district court’s discussion of a\ndownward “variance” equivalent to two levels for use of a\ncomputer and one level for the total number of images. In\ncontext, however, it is clear that the court was not re-analyzing\n\f10 No. 18-1310\n\nthe specific offense characteristics in order to correct the\nguidelines calculation but rather was expressing disagreement\nwith the properly calculated guidelines sentence.\n After United States v. Booker, 543 U.S. 220 (2005), a sentenc-\ning judge has the discretion to disagree with a particular\nprovision of the guidelines and to impose a non-guidelines\nsentence that, in his or her judgment, is more consistent with\nthe statutory sentencing factors set out in section 3553(a).\nKimbrough v. United States, 552 U.S. 85 (2007); Smith, 860 F.3d at\n517; United States v. Rosales, 813 F.3d 634, 637 (7th Cir. 2016). In\nthe context of addressing the section 3553(a) factors, the court\nhere explained that it routinely varied downward the equiva-\nlent of two levels because child pornography offenses virtually\nalways involve the use of a computer, making the application\nof section 2G2.2(b)(6) inappropriate, in the court’s opinion. The\ncourt similarly disagreed with the “boilerplate” addition of\nseventy-five images for each video, allowing for a downward\nvariance equivalent to one level. The court then stated that “the\nvariance, if you want to call it that, for my recalculated\nguidelines would be 37.” R. 37, Sent. Tr. at 50. That mention of\nlevel 37 was likely a misstatement because it did not take into\naccount that the court had also adopted the PSR recommenda-\ntion to allow a three-level reduction for acceptance of responsi-\nbility, and so the variance was analogous to level 34, not level\n37. The misstatement had no effect on the sentence, however,\nbecause the court treated the variance as equivalent to a level\n34 sentence, not a level 37 sentence.\n In expressing its policy disagreement with the application\nof certain specific offense characteristics, the court simply\nanalogized the variance to reductions in particular specific\n\fNo. 18-1310 11\n\noffense characteristic levels. The court made this adjustment\nunder section 3553(a), and had no occasion to recalculate the\nfinal guidelines level. In Criminal History Category V, the\nanalogous level 34 sentence yields a guidelines range of 235 to\n293 months. The final sentence of 240 months is on the low end\nof a level 34 sentence and a full 84 months below the bottom of\nthe properly calculated guidelines range. If, as Griffith argues,\nthe court had mistakenly failed to account for acceptance of\nresponsibility when deciding how much to vary, the sentence\nwould have been significantly higher. We have no doubt that\nthe court was not correcting the guidelines calculation but was\nsimply explaining a downward variance under section 3553(a)\nfrom the properly calculated range by way of analogy to the\nguidelines.\n We emphasize that it was not necessary for the court to\nanalogize to the guidelines when explaining the downward\nvariance. United States v. Kuczora, 910 F.3d 904, 908 (7th Cir.\n2018) (“the sentencing court need not frame its explanation of\na sentence in terms of a departure from the guidelines range,\nbut may instead focus on the appropriateness of the sentence\nunder § 3553.”) (quoting United States v. Courtland, 642 F.3d\n545, 550 (7th Cir. 2011)). A court need only explain why a\nsentence is appropriate under the statutory criteria. Kuczora,\n910 F.3d at 908. So long as a court uses the properly calculated\nguidelines range as a starting point, it may explain a decision\nto vary from the range with reference to the section 3553(a)\nfactors alone. Kuczora, 910 F.3d at 908.\n We also note that the court had not found any error in the\nPSR’s calculation of the guidelines (other than the statutory cap\nissue we noted earlier) and had no reason to recalculate the\n\f12 No. 18-1310\n\nguidelines. The court’s Statement of Reasons explaining the\nsentence makes clear that the court intended for the three-level\nreduction to be a variance because of a policy disagreement\nwith the properly calculated guidelines, not a change to the\nguidelines calculation. R. 27, at 3, ¶ VI.D. And Griffith points\nto no error in the district court’s guidelines calculation here.\nIndeed, Griffith did not challenge the factual basis of the\nguidelines calculation or the final offense level in the district\ncourt. He argued instead that the resulting offense level was\ninconsistent with the purposes of sentencing expressed in\nsection 3553(a). He did not deny, for example, that some of the\nphotographs depicted prepubescent minors, or that certain\nimages portrayed violence towards and sexual abuse of\ntoddlers. He conceded that he offered access to his Twitter\naccounts in exchange for additional child pornography, that he\nused a computer and that his offenses involved more than 600\nimages when calculated under guidelines standards. But in\nconceding the basic facts underlying the calculation and the\nresult of the \"rote application\" of the guidelines provisions, he\nobjected only that the result produced a draconian and\nunjustified sentence. In light of all of the circumstances, the\nonly reasonable reading of the sentencing transcript is that the\ncourt understood and announced a correct calculation of the\nguidelines and then varied downward by analogy to certain\nguidelines factors during the discussion of the statutory\nfactors.\n Finally, we can quickly dispense with any claim that the\nfinal sentence was substantively unreasonable. When assessing\nthe substantive reasonableness of a sentence under the abuse\nof discretion standard, we presume that a within-guidelines\n\fNo. 18-1310 13\n\nsentence is reasonable. Rita v. United States, 551 U.S. 338,\n347–56 (2007); United States v. Moore, 851 F.3d 666, 674 (7th Cir.\n2017). That same presumption obviously applies to a below-\nguidelines sentence, such as the one imposed here. Moore, 851\nF.3d at 674. Griffith bears the burden of rebutting that pre-\nsumption by demonstrating that the sentence is unreasonably\nhigh in light of the section 3553(a) factors. United States v.\nMykytiuk, 415 F.3d 606, 608 (7th Cir. 2005).\n Griffith attempts to surmount that challenge by arguing\nthat his collection of child pornography was relatively small;\nthat his crimes involved no contact offenses; that a twenty-year\nterm was a de facto life sentence for a man of his age and health;\nthat the sentence was unnecessary to deter recidivism because\nof his age and the lengthy term of supervised release; and that\nsection 2G2.2 encourages unreasonably harsh sentences. The\ndistrict court carefully considered and addressed each of these\narguments, and Griffith’s claim on appeal amounts to a request\nthat we substitute our judgment for that of the district court. In\nthe usual course, it would be the government, not the defen-\ndant, arguing that the court abused its discretion by granting\na significantly below-guidelines sentence. In any case, the\ndistrict court did not abuse its discretion in granting Griffith an\neighty-four month break from the bottom of the properly-\ncalculated guidelines sentencing range, and the sentence was\nsubstantively reasonable.\n AFFIRMED.\n[END_CASE]", "role": "user" } ]
4,583,538	Charlotte ROBINSON and Bobby Don Bowersock as Co-Personal Representatives of the Estate of Georgia J. Bowersock, Deceased, and Mark Bowersock, Individually, Plaintiffs-Appellants, v. DAVOL INC. and C.R. Bard, Inc., Defendants-Appellees.	Charlotte Robinson v. Davol, Inc.	2019-01-22	17-2068	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Sykes, Barrett, Griesbach", "parties": "", "opinions": [{"author": "Diane S. Sykes", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-2068\nCHARLOTTE ROBINSON and\nBOBBY DON BOWERSOCK as co-personal\nrepresentatives of the Estate of\nGeorgia J. Bowersock, deceased, and\nMARK BOWERSOCK, individually,\n Plaintiffs-Appellants,\n\n v.\n\nDAVOL INC. and C.R. BARD, INC.,\n Defendants-Appellees.\n ____________________\n\n Appeal from the United States District Court for the\n Southern District of Indiana, Indianapolis Division.\n No. 1:08-cv-01313-LJM-TAB — Larry J. McKinney, Judge.\n ____________________\n\n ARGUED FEBRUARY 13, 2018 — DECIDED JANUARY 22, 2019\n ____________________\n\n Before SYKES and BARRETT, Circuit Judges, and GRIESBACH,\nChief District Judge. ∗\n\n\n\n∗ Of the Eastern District of Wisconsin, sitting by designation.\n\f2 No. 17-2068\n\n SYKES, Circuit Judge. C.R. Bard, Inc., manufactures a sur-\ngical mesh patch used to repair hernias by implantation. The\npatch consists of two pieces of mesh that surround a flexible\nplastic ring. During a hernia repair, the patch is folded to fit\nthrough a small incision, then the plastic ring springs back\ninto its original shape and flattens the mesh against the\nabdominal wall.\n Bard recalled several versions of the patch in late 2005\nand early 2006 following reports that the plastic ring was\ndefective. Sometimes the ring broke, exposing a sharp edge\nthat could perforate the patient’s intestines. Other times the\nring caused the patch to bend and warp, exposing the patch’s\nadhesive to a patient’s viscera.\n Prior to the recall, Georgia Bowersock underwent sur-\ngery to repair a hernia, and her surgeon implanted a Bard\npatch. Roughly one year later, on October 31, 2006, she died\nof complications arising from an abdominal-wall abscess.\nHer estate and family members sued Bard and Davol Inc.,\nthe patent holder for the patch, alleging that a defect in the\npatch caused her death. To establish medical causation, the\nplaintiffs retained three experts to opine on the defect and\nthe likely cause of Mrs. Bowersock’s death.\n But the experts had trouble establishing causation. Un-\nlike defective patches in other injured patients,\nMrs. Bowersock’s patch did not adhere to her bowel or\nperforate her organs with a broken, sharp edge. One expert\ntried to present a new theory of causation: the patch had\n“buckled,” forming a stiff edge that rubbed against and\nimperceptibly perforated her internal organs.\n\fNo. 17-2068 3\n\n The defendants moved to exclude the expert testimony.\nThe judge granted the motion, finding that the “buckling”\ntheory was not sufficiently reliable. Lacking expert testimo-\nny to establish causation, the plaintiffs could not prove their\ncase, and the judge entered summary judgment for Bard and\nDavol.\n We affirm. The novel theory of causation was not peer\nreviewed, professionally presented, consistent with\nMrs. Bowersock’s medical records or autopsy, or substantiat-\ned by other cases. The judge therefore did not abuse his\ndiscretion in excluding the expert testimony. Summary\njudgment for the defendants necessarily followed.\n I. Background\n The Composix® Kugel Patch is a prescription medical\ndevice designed to repair hernias. Bard manufactures the\npatch and Davol owns the patent. (We refer to them collec-\ntively as “Bard.”) The patch consists of two layers of mesh\nthat surround one or two flexible plastic rings called\nmemory rings. The top layer is made of polypropylene; it\nadheres to the abdominal wall under the hernia and facili-\ntates healing. The bottom layer is made of smooth expanded\npolytetrafluorethylene; it faces the bowel to prevent the\npatch from attaching to the viscera. To implant the patch, a\nphysician folds the device and then inserts it into the patient\nvia a small incision. After insertion the memory ring springs\nback and flattens the patch against the abdominal wall. The\npatch remains in the body after the hernia heals.\n The patch hit the market in 2001. Users soon began re-\nporting problems with the plastic ring. Sometimes it would\naltogether fail. Other times the ring would experience “buck-\n\f4 No. 17-2068\n\nling”—that is, the mesh components of the patch would\ncontract, causing the ring to resist and bend, kink, break, or\nbuckle. Although the patch came with instructions for use\nthat contained user warnings, none of the warnings men-\ntioned any of these problems with the plastic ring. On\nDecember 22, 2005, Bard recalled all extra-large models.\nSeveral months later Bard expanded the recall to include\nother models.\n On May 25, 2005, Mrs. Bowersock sought medical treat-\nment for an abdominal-wall hernia. On July 22 Dr. Mark O.\nLynch performed surgery and implanted a Bard patch, using\na model that was included in the second recall. Dr. Lynch\ntestified that he would not have implanted the patch if he\nhad known about the defective memory rings.\n On October 4, 2006, Mrs. Bowersock went to the emer-\ngency room with an abdominal-wall abscess. The hospital\ncultured the abscess, and the lab results returned positive for\nstaphylococcus aureus. Doctors administered antibiotics,\ndrained the abscess, and released her from the hospital. She\nreturned several days later with a large wound infection.\nWhile hospitalized she suffered a cardiac arrest. She was\nresuscitated and placed on a ventilator. The hospital took a\nsecond culture that indicated the presence of staphylococcus\nepidermidis and enterococcus faecalis, or fecal bacteria. A\nthird culture returned positive for pseudomonas aeruginosa\nand yeast. Her condition deteriorated until her death on\nOctober 31, 2006.\n Dr. Roland Kohr, the county coroner, performed an au-\ntopsy that same day and determined that pneumonia and\ncomplications of that disease ultimately caused\nMrs. Bowersock’s death. In his report Dr. Kohr noted\n\fNo. 17-2068 5\n\n“abdominal adhesions” and an “abdominal wall fistula.” He\nalso noted that the “small bowel and colon [were] intact\nwithout perforation, diverticula or palpable tumors.”\nDr. Kohr later exhumed Mrs. Bowersock’s body and re-\ntrieved the implanted patch for further study.\n Bobby and Mark Bowersock (Mrs. Bowersock’s sons) and\nCharlotte Robinson (her sister) sued Bard in federal court\nraising claims of negligence, failure to warn, breach of\nimplied warranty, fraud, and intentional infliction of emo-\ntional distress. They also asserted a statutory claim for\nviolation of the Indiana Deceptive Consumer Sales Act, IND.\nCODE § 24-5-5. Bobby and Charlotte are co-representatives of\nMrs. Bowersock’s estate; Mark also asserted an individual\nclaim under the Indiana Wrongful Death Act, id. § 34-23-1-1.\nAll of the claims rested on the same essential allegations: the\npatch implanted in Mrs. Bowersock was defective and\nultimately caused her death. The district court consolidated\nthe claims under the Indiana Products Liability Act, id.\n§§ 34-20-1-1 et seq., which “govern[s] all product liability\nactions, whether the theory of liability is negligence or strict\nliability in tort,” Dague v. Piper Aircraft Corp., 418 N.E.2d 207,\n212 (Ind. 1981).\n The plaintiffs retained Dr. Stephen Ferzoco to opine on\nthe cause of death. Dr. Ferzoco has experience treating\npatients who had problems with the patches. He also has\ntestified in cases where the memory ring broke or the poly-\npropylene side of the patch adhered to the intestines. After\nexamining the patch that was retrieved from\nMrs. Bowersock, however, Dr. Ferzoco conceded that neither\nof those problems had occurred here. He instead developed\na new theory to account for her injury: the ring had buckled\n\f6 No. 17-2068\n\nbut stayed intact, and the raised portion of the mesh\n“rubb[ed] up against the bowel causing a fistula or break\nand then seal[ed] up prior to explantation or discovery of the\nmesh in the bowel.” The parties and the district judge re-\nferred to this as the “nidus” theory (meaning the location or\nfocus of an infection), so we do the same; here it describes\nthe location where Dr. Ferzoco theorized that the buckled\nring rubbed against the bowel. Dr. Ferzoco also testified that\nhe could rule out several other possible causes of death,\nincluding cross-contamination of fecal matter, fecal matter\nentering through the skin, obesity, diabetes, and chronic\nobstructive pulmonary disease.\n Dr. Ferzoco’s theory was novel: he had never before pre-\nsented it in a formal or professional setting and could not\nidentify published medical literature discussing it. Though\nhe claimed to have seen this particular malfunction occur in\nother patients, he declined to identify the patients or pro-\nduce their medical records. Crucially, he admitted that there\nwas no evidence in the medical records or autopsy report of\nbowel erosion or perforation.\n The plaintiffs also retained Dr. William Hyman, a profes-\nsor of biomedical engineering. He opined that the memory\nring’s design was inherently dangerous, that Bard failed to\nadequately test the patch, and that feasible alternative\ndesigns were available. He also speculated that based on the\ndefective design and Dr. Ferzoco’s medical testimony, the\nring buckling likely caused the bowel injury. He identified\ntwo important limitations in his testimony, however. First,\nhe admitted that he never examined or viewed images of\nMrs. Bowersock’s patch. Second, he is “not a microbiologist\n\fNo. 17-2068 7\n\nand [was] not offering an independent opinion on the mi-\ncrobiology of her infection.”\n Finally, the plaintiffs retained Dr. Kohr, the coroner. He\nreiterated in his deposition that the autopsy did not reveal\nany visible breaches of the small bowel or colon. He clari-\nfied, however, that “there could have been superficial\nbreaches scarred over with additional inflammation” and\nthat “extensive adhesions in the suprapubic area [and] lower\nabdomen” suggested the “possibility” of a breach. He also\ntestified that at the time of the autopsy, he wasn’t aware of\nthe problems with the patch or Bard’s recalls. Dr. Kohr\nconcluded that there was a “reasonable medical probability”\nthat the patch caused Mrs. Bowersock’s death.\n Bard moved to exclude the causation opinions offered by\neach of these experts, arguing that (1) Dr. Ferzoco’s nidus\ntheory was not reliable; (2) Dr. Hyman’s opinion was un-\nsupported by the medical records; and (3) the plaintiffs\nfailed to timely disclose Dr. Kohr as an expert under Rule 26\nof the Federal Rules of Civil Procedure. Bard also sought\nsummary judgment, arguing the plaintiffs could not prove\nthat the patch or its warnings were defective or caused\nMrs. Bowersock’s death.\n The judge granted the motion to exclude the experts. He\nruled that Dr. Ferzoco’s nidus theory failed to meet the\nreliability threshold under Rule 702 of the Federal Rules of\nEvidence. He also held that Dr. Hyman was not qualified to\noffer an opinion about medical causation and that the plain-\ntiffs’ failure to disclose Dr. Kohr as an expert precluded\nthem from calling him to testify in that capacity. That left the\nplaintiffs without a causation expert—a requirement to\n\f8 No. 17-2068\n\nprove the element of medical causation under Indiana law—\nso the judge entered summary judgment for Bard.\n II. Discussion\n We normally review a summary judgment de novo, but\nour review is “slightly more nuanced” when summary\njudgment follows from a decision to exclude expert testimo-\nny. Higgins v. Koch Dev. Corp., 794 F.3d 697, 701 (7th Cir.\n2015). Our first question is whether the judge properly\napplied the Daubert framework for evaluating the admissibil-\nity of expert testimony. Id. (citing Daubert v. Merrell Dow\nPharm., Inc., 509 U.S. 579 (1993)). We then review for abuse of\ndiscretion the judge’s decision to exclude the expert witness.\nId.\n The plaintiffs must establish causation to prove a viola-\ntion of the Indiana Products Liability Act. IND. CODE § 34-20-\n1-1. Under Indiana law “questions of medical causation of a\nparticular injury are questions of science necessarily de-\npendent on the testimony of physicians and surgeons\nlearned in such matters.” Higgins, 794 F.3d at 703 (quoting\nArmstrong v. Cerestar USA, Inc., 775 N.E.2d 360, 366 (Ind. Ct.\nApp. 2002)). “[W]hen there is no obvious origin to an injury\nand it has multiple potential etiologies, expert testimony is\nnecessary to establish causation.” Id. (quotation marks\nomitted).\n The key expert testimony is that of Dr. Ferzoco; without\nit the plaintiffs cannot establish medical causation. They\nconcede as much. They do not challenge the exclusion of\nDr. Kohr as an expert based on their procedural violation,\nand they acknowledge that Dr. Hyman’s opinion “does not,\nin and of itself, establish medical causation.” We therefore\n\fNo. 17-2068 9\n\nfocus our attention on the exclusion of Dr. Ferzoco’s testi-\nmony under Rule 702.\n An expert’s opinion is permitted if:\n (a) the expert’s scientific, technical, or other\n specialized knowledge will help the trier of\n fact to understand the evidence or to determine\n a fact in issue;\n (b) the testimony is based on sufficient facts or\n data;\n (c) the testimony is the product of reliable\n principles and methods; and\n (d) the expert has reliably applied the princi-\n ples and methods to the facts of the case.\nFED. R. EVID. 702.\n The familiar Daubert two-step framework applies to de-\ntermine whether the requirements of Rule 702 have been\nsatisfied. 509 U.S. at 593–94. The proponent of the expert\ntestimony must first establish that “the proposed witness\nwould testify to valid scientific, technical, or other special-\nized knowledge.” Ammons v. Aramark Unif. Servs., Inc.,\n368 F.3d 809, 816 (7th Cir. 2004) (internal quotation marks\nomitted). The proponent must then show that the expert\ntestimony will assist the trier of fact. Id. At step one the\njudge evaluates whether the expert’s theory has been\n“(1) tested, (2) subjected to peer review and publication,\n(3) analyzed for known or potential error rate, and/or is\n(4) generally accepted within the specific scientific field.”\nLapsley v. Xtek, Inc., 689 F.3d 802, 810 (7th Cir. 2012). At step\ntwo the judge evaluates “whether the proposed scientific\n\f10 No. 17-2068\n\ntestimony fits the issue to which the expert is testifying.”\nUnited States v. Hall, 165 F.3d 1095, 1102 (7th Cir. 1999).\n The judge properly applied the Rule 702 and Daubert\nstandards in addressing Bard’s motion. He summarized\nDr. Ferzoco’s theory that the patch buckled and rubbed\nagainst Mrs. Bowersock’s colon, causing fecal matter to\nescape through an opening that either closed prior to dis-\ncovery or was not visible to the naked eye. He then ex-\nplained why this novel theory of causation wasn’t reliable.\nTo begin, the theory wasn’t tested, subjected to peer review,\nor described in medical literature. See Lapsley, 689 F.3d at\n810. Moreover, the phenomena that Dr. Ferzoco described\nwere not found in Mrs. Bowersock’s medical records or\nautopsy report. Last, the judge discounted Dr. Ferzoco’s\ncontention that he had previously treated patients injured in\nthis manner, explaining that the claim was not substantiated\nwith identified patients or records. See Olinger v. U.S. Golf\nAss’n, 52 F. Supp. 2d 947, 950 (N.D. Ind. 1999) (“The court\ncannot evaluate the reliability of the undisclosed methodol-\nogy or of the principles that support the methodology.”).\n On appeal the plaintiffs contend that Dr. Ferzoco’s meth-\nod was the equivalent of a differential diagnosis, which is an\n“accepted and valid methodology.” Myers v. Ill. Cent. R.R.\nCo., 629 F.3d 639, 644 (7th Cir. 2010). Put in simple terms, a\ndifferential diagnosis “provides a framework in which all\nreasonable hypotheses are ‘ruled in’ as possible causes of a\nmedical problem and some of these possible causes are then\n‘ruled out’ to the extent scientific evidence makes it appro-\npriate to do so.” Ervin v. Johnson & Johnson, Inc., 492 F.3d 901,\n903 (7th Cir. 2007). The plaintiffs didn’t raise this argument\nat summary judgment, however. They first used the term\n\fNo. 17-2068 11\n\n“differential diagnosis” in their motion to alter or amend the\njudgment. That’s too late to preserve an argument for ap-\npeal. Cf. Green v. Whiteco Indus., Inc., 17 F.3d 199, 201 n.4 (7th\nCir. 1994) (“[R]aising [an] argument for the first time in the\nmotion for reconsideration is not adequate to preserve the\nissue for appeal and definitively waives it.”).\n The plaintiffs insist that they presented the argument be-\nlow, just without using the term “differential diagnosis.”\nThey point to their argument at summary judgment that\nDr. Ferzoco’s opinions were “founded on reliable methods,\nexperience[,] and data.” That’s far too general a statement to\nsituate their expert’s opinion in the specific domain of\ndifferential-diagnosis methodology. See Fednav Int’l Ltd. v.\nCont’l Ins. Co., 624 F.3d 834, 841 (7th Cir. 2010) (explaining\nthat the failure to present a specific argument below results\nin waiver, even if the argument “may have been before the\ndistrict court in more general terms”).\n Even if preserved, the argument fails on the merits.\nThough differential diagnosis is widely accepted as a general\nmatter, an expert’s decision to “rule in” or “rule out” poten-\ntial causes must itself be “scientifically valid.” Ervin, 492 F.3d\nat 904. In other words, Dr. Ferzoco needed to establish the\nreliability of his nidus theory in order to “rule in” the buck-\nling as a potential cause of Mrs. Bowersock’s death. As\nwe’ve noted, the judge identified several reasons why\nDr. Ferzoco’s nidus theory is not sufficiently reliable.\n The plaintiffs also argue that a scientific theory should\nnot be rejected solely because it lacks peer review. See Smith\nv. Ford Motor Co., 215 F.3d 713, 720 (7th Cir. 2000). But the\njudge gave multiple reasons for his decision, including the\nlack of corroborating evidence in Mrs. Bowersock’s medical\n\f12 No. 17-2068\n\nrecords and autopsy report. Along the same lines, the plain-\ntiffs repeatedly assert that the lack of scientific literature\nsupporting the expert’s theory goes to the weight, not the\nadmissibility, of his testimony. That’s not the correct stand-\nard. Rule 702 and Daubert require the judge to act as a vigor-\nous gatekeeper to ensure the reliability of expert testimony.\nSee Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149 (1999).\n In sum, the plaintiffs cannot prove medical causation\nwithout Dr. Ferzoco’s testimony. The record reflects that the\njudge properly applied the Daubert framework and soundly\nexercised his discretion to exclude it. It follows that Bard\nwas entitled to summary judgment.\n AFFIRMED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4360791/", "author_raw": "Diane S. Sykes"}]}	SYKES	BARRETT	GRIESBACH	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4583538/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Charlotte ROBINSON and Bobby Don Bowersock as Co-Personal Representatives of the Estate of Georgia J. Bowersock, Deceased, and Mark Bowersock, Individually, Plaintiffs-Appellants, v. DAVOL INC. and C.R. Bard, Inc., Defendants-Appellees.\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-22\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-2068\nCHARLOTTE ROBINSON and\nBOBBY DON BOWERSOCK as co-personal\nrepresentatives of the Estate of\nGeorgia J. Bowersock, deceased, and\nMARK BOWERSOCK, individually,\n Plaintiffs-Appellants,\n\n v.\n\nDAVOL INC. and C.R. BARD, INC.,\n Defendants-Appellees.\n ____________________\n\n Appeal from the United States District Court for the\n Southern District of Indiana, Indianapolis Division.\n No. 1:08-cv-01313-LJM-TAB — Larry J. McKinney, Judge.\n ____________________\n\n ARGUED FEBRUARY 13, 2018 — DECIDED JANUARY 22, 2019\n ____________________\n\n Before SYKES and BARRETT, Circuit Judges, and GRIESBACH,\nChief District Judge. ∗\n\n\n\n∗ Of the Eastern District of Wisconsin, sitting by designation.\n\f2 No. 17-2068\n\n SYKES, Circuit Judge. C.R. Bard, Inc., manufactures a sur-\ngical mesh patch used to repair hernias by implantation. The\npatch consists of two pieces of mesh that surround a flexible\nplastic ring. During a hernia repair, the patch is folded to fit\nthrough a small incision, then the plastic ring springs back\ninto its original shape and flattens the mesh against the\nabdominal wall.\n Bard recalled several versions of the patch in late 2005\nand early 2006 following reports that the plastic ring was\ndefective. Sometimes the ring broke, exposing a sharp edge\nthat could perforate the patient’s intestines. Other times the\nring caused the patch to bend and warp, exposing the patch’s\nadhesive to a patient’s viscera.\n Prior to the recall, Georgia Bowersock underwent sur-\ngery to repair a hernia, and her surgeon implanted a Bard\npatch. Roughly one year later, on October 31, 2006, she died\nof complications arising from an abdominal-wall abscess.\nHer estate and family members sued Bard and Davol Inc.,\nthe patent holder for the patch, alleging that a defect in the\npatch caused her death. To establish medical causation, the\nplaintiffs retained three experts to opine on the defect and\nthe likely cause of Mrs. Bowersock’s death.\n But the experts had trouble establishing causation. Un-\nlike defective patches in other injured patients,\nMrs. Bowersock’s patch did not adhere to her bowel or\nperforate her organs with a broken, sharp edge. One expert\ntried to present a new theory of causation: the patch had\n“buckled,” forming a stiff edge that rubbed against and\nimperceptibly perforated her internal organs.\n\fNo. 17-2068 3\n\n The defendants moved to exclude the expert testimony.\nThe judge granted the motion, finding that the “buckling”\ntheory was not sufficiently reliable. Lacking expert testimo-\nny to establish causation, the plaintiffs could not prove their\ncase, and the judge entered summary judgment for Bard and\nDavol.\n We affirm. The novel theory of causation was not peer\nreviewed, professionally presented, consistent with\nMrs. Bowersock’s medical records or autopsy, or substantiat-\ned by other cases. The judge therefore did not abuse his\ndiscretion in excluding the expert testimony. Summary\njudgment for the defendants necessarily followed.\n I. Background\n The Composix® Kugel Patch is a prescription medical\ndevice designed to repair hernias. Bard manufactures the\npatch and Davol owns the patent. (We refer to them collec-\ntively as “Bard.”) The patch consists of two layers of mesh\nthat surround one or two flexible plastic rings called\nmemory rings. The top layer is made of polypropylene; it\nadheres to the abdominal wall under the hernia and facili-\ntates healing. The bottom layer is made of smooth expanded\npolytetrafluorethylene; it faces the bowel to prevent the\npatch from attaching to the viscera. To implant the patch, a\nphysician folds the device and then inserts it into the patient\nvia a small incision. After insertion the memory ring springs\nback and flattens the patch against the abdominal wall. The\npatch remains in the body after the hernia heals.\n The patch hit the market in 2001. Users soon began re-\nporting problems with the plastic ring. Sometimes it would\naltogether fail. Other times the ring would experience “buck-\n\f4 No. 17-2068\n\nling”—that is, the mesh components of the patch would\ncontract, causing the ring to resist and bend, kink, break, or\nbuckle. Although the patch came with instructions for use\nthat contained user warnings, none of the warnings men-\ntioned any of these problems with the plastic ring. On\nDecember 22, 2005, Bard recalled all extra-large models.\nSeveral months later Bard expanded the recall to include\nother models.\n On May 25, 2005, Mrs. Bowersock sought medical treat-\nment for an abdominal-wall hernia. On July 22 Dr. Mark O.\nLynch performed surgery and implanted a Bard patch, using\na model that was included in the second recall. Dr. Lynch\ntestified that he would not have implanted the patch if he\nhad known about the defective memory rings.\n On October 4, 2006, Mrs. Bowersock went to the emer-\ngency room with an abdominal-wall abscess. The hospital\ncultured the abscess, and the lab results returned positive for\nstaphylococcus aureus. Doctors administered antibiotics,\ndrained the abscess, and released her from the hospital. She\nreturned several days later with a large wound infection.\nWhile hospitalized she suffered a cardiac arrest. She was\nresuscitated and placed on a ventilator. The hospital took a\nsecond culture that indicated the presence of staphylococcus\nepidermidis and enterococcus faecalis, or fecal bacteria. A\nthird culture returned positive for pseudomonas aeruginosa\nand yeast. Her condition deteriorated until her death on\nOctober 31, 2006.\n Dr. Roland Kohr, the county coroner, performed an au-\ntopsy that same day and determined that pneumonia and\ncomplications of that disease ultimately caused\nMrs. Bowersock’s death. In his report Dr. Kohr noted\n\fNo. 17-2068 5\n\n“abdominal adhesions” and an “abdominal wall fistula.” He\nalso noted that the “small bowel and colon [were] intact\nwithout perforation, diverticula or palpable tumors.”\nDr. Kohr later exhumed Mrs. Bowersock’s body and re-\ntrieved the implanted patch for further study.\n Bobby and Mark Bowersock (Mrs. Bowersock’s sons) and\nCharlotte Robinson (her sister) sued Bard in federal court\nraising claims of negligence, failure to warn, breach of\nimplied warranty, fraud, and intentional infliction of emo-\ntional distress. They also asserted a statutory claim for\nviolation of the Indiana Deceptive Consumer Sales Act, IND.\nCODE § 24-5-5. Bobby and Charlotte are co-representatives of\nMrs. Bowersock’s estate; Mark also asserted an individual\nclaim under the Indiana Wrongful Death Act, id. § 34-23-1-1.\nAll of the claims rested on the same essential allegations: the\npatch implanted in Mrs. Bowersock was defective and\nultimately caused her death. The district court consolidated\nthe claims under the Indiana Products Liability Act, id.\n§§ 34-20-1-1 et seq., which “govern[s] all product liability\nactions, whether the theory of liability is negligence or strict\nliability in tort,” Dague v. Piper Aircraft Corp., 418 N.E.2d 207,\n212 (Ind. 1981).\n The plaintiffs retained Dr. Stephen Ferzoco to opine on\nthe cause of death. Dr. Ferzoco has experience treating\npatients who had problems with the patches. He also has\ntestified in cases where the memory ring broke or the poly-\npropylene side of the patch adhered to the intestines. After\nexamining the patch that was retrieved from\nMrs. Bowersock, however, Dr. Ferzoco conceded that neither\nof those problems had occurred here. He instead developed\na new theory to account for her injury: the ring had buckled\n\f6 No. 17-2068\n\nbut stayed intact, and the raised portion of the mesh\n“rubb[ed] up against the bowel causing a fistula or break\nand then seal[ed] up prior to explantation or discovery of the\nmesh in the bowel.” The parties and the district judge re-\nferred to this as the “nidus” theory (meaning the location or\nfocus of an infection), so we do the same; here it describes\nthe location where Dr. Ferzoco theorized that the buckled\nring rubbed against the bowel. Dr. Ferzoco also testified that\nhe could rule out several other possible causes of death,\nincluding cross-contamination of fecal matter, fecal matter\nentering through the skin, obesity, diabetes, and chronic\nobstructive pulmonary disease.\n Dr. Ferzoco’s theory was novel: he had never before pre-\nsented it in a formal or professional setting and could not\nidentify published medical literature discussing it. Though\nhe claimed to have seen this particular malfunction occur in\nother patients, he declined to identify the patients or pro-\nduce their medical records. Crucially, he admitted that there\nwas no evidence in the medical records or autopsy report of\nbowel erosion or perforation.\n The plaintiffs also retained Dr. William Hyman, a profes-\nsor of biomedical engineering. He opined that the memory\nring’s design was inherently dangerous, that Bard failed to\nadequately test the patch, and that feasible alternative\ndesigns were available. He also speculated that based on the\ndefective design and Dr. Ferzoco’s medical testimony, the\nring buckling likely caused the bowel injury. He identified\ntwo important limitations in his testimony, however. First,\nhe admitted that he never examined or viewed images of\nMrs. Bowersock’s patch. Second, he is “not a microbiologist\n\fNo. 17-2068 7\n\nand [was] not offering an independent opinion on the mi-\ncrobiology of her infection.”\n Finally, the plaintiffs retained Dr. Kohr, the coroner. He\nreiterated in his deposition that the autopsy did not reveal\nany visible breaches of the small bowel or colon. He clari-\nfied, however, that “there could have been superficial\nbreaches scarred over with additional inflammation” and\nthat “extensive adhesions in the suprapubic area [and] lower\nabdomen” suggested the “possibility” of a breach. He also\ntestified that at the time of the autopsy, he wasn’t aware of\nthe problems with the patch or Bard’s recalls. Dr. Kohr\nconcluded that there was a “reasonable medical probability”\nthat the patch caused Mrs. Bowersock’s death.\n Bard moved to exclude the causation opinions offered by\neach of these experts, arguing that (1) Dr. Ferzoco’s nidus\ntheory was not reliable; (2) Dr. Hyman’s opinion was un-\nsupported by the medical records; and (3) the plaintiffs\nfailed to timely disclose Dr. Kohr as an expert under Rule 26\nof the Federal Rules of Civil Procedure. Bard also sought\nsummary judgment, arguing the plaintiffs could not prove\nthat the patch or its warnings were defective or caused\nMrs. Bowersock’s death.\n The judge granted the motion to exclude the experts. He\nruled that Dr. Ferzoco’s nidus theory failed to meet the\nreliability threshold under Rule 702 of the Federal Rules of\nEvidence. He also held that Dr. Hyman was not qualified to\noffer an opinion about medical causation and that the plain-\ntiffs’ failure to disclose Dr. Kohr as an expert precluded\nthem from calling him to testify in that capacity. That left the\nplaintiffs without a causation expert—a requirement to\n\f8 No. 17-2068\n\nprove the element of medical causation under Indiana law—\nso the judge entered summary judgment for Bard.\n II. Discussion\n We normally review a summary judgment de novo, but\nour review is “slightly more nuanced” when summary\njudgment follows from a decision to exclude expert testimo-\nny. Higgins v. Koch Dev. Corp., 794 F.3d 697, 701 (7th Cir.\n2015). Our first question is whether the judge properly\napplied the Daubert framework for evaluating the admissibil-\nity of expert testimony. Id. (citing Daubert v. Merrell Dow\nPharm., Inc., 509 U.S. 579 (1993)). We then review for abuse of\ndiscretion the judge’s decision to exclude the expert witness.\nId.\n The plaintiffs must establish causation to prove a viola-\ntion of the Indiana Products Liability Act. IND. CODE § 34-20-\n1-1. Under Indiana law “questions of medical causation of a\nparticular injury are questions of science necessarily de-\npendent on the testimony of physicians and surgeons\nlearned in such matters.” Higgins, 794 F.3d at 703 (quoting\nArmstrong v. Cerestar USA, Inc., 775 N.E.2d 360, 366 (Ind. Ct.\nApp. 2002)). “[W]hen there is no obvious origin to an injury\nand it has multiple potential etiologies, expert testimony is\nnecessary to establish causation.” Id. (quotation marks\nomitted).\n The key expert testimony is that of Dr. Ferzoco; without\nit the plaintiffs cannot establish medical causation. They\nconcede as much. They do not challenge the exclusion of\nDr. Kohr as an expert based on their procedural violation,\nand they acknowledge that Dr. Hyman’s opinion “does not,\nin and of itself, establish medical causation.” We therefore\n\fNo. 17-2068 9\n\nfocus our attention on the exclusion of Dr. Ferzoco’s testi-\nmony under Rule 702.\n An expert’s opinion is permitted if:\n (a) the expert’s scientific, technical, or other\n specialized knowledge will help the trier of\n fact to understand the evidence or to determine\n a fact in issue;\n (b) the testimony is based on sufficient facts or\n data;\n (c) the testimony is the product of reliable\n principles and methods; and\n (d) the expert has reliably applied the princi-\n ples and methods to the facts of the case.\nFED. R. EVID. 702.\n The familiar Daubert two-step framework applies to de-\ntermine whether the requirements of Rule 702 have been\nsatisfied. 509 U.S. at 593–94. The proponent of the expert\ntestimony must first establish that “the proposed witness\nwould testify to valid scientific, technical, or other special-\nized knowledge.” Ammons v. Aramark Unif. Servs., Inc.,\n368 F.3d 809, 816 (7th Cir. 2004) (internal quotation marks\nomitted). The proponent must then show that the expert\ntestimony will assist the trier of fact. Id. At step one the\njudge evaluates whether the expert’s theory has been\n“(1) tested, (2) subjected to peer review and publication,\n(3) analyzed for known or potential error rate, and/or is\n(4) generally accepted within the specific scientific field.”\nLapsley v. Xtek, Inc., 689 F.3d 802, 810 (7th Cir. 2012). At step\ntwo the judge evaluates “whether the proposed scientific\n\f10 No. 17-2068\n\ntestimony fits the issue to which the expert is testifying.”\nUnited States v. Hall, 165 F.3d 1095, 1102 (7th Cir. 1999).\n The judge properly applied the Rule 702 and Daubert\nstandards in addressing Bard’s motion. He summarized\nDr. Ferzoco’s theory that the patch buckled and rubbed\nagainst Mrs. Bowersock’s colon, causing fecal matter to\nescape through an opening that either closed prior to dis-\ncovery or was not visible to the naked eye. He then ex-\nplained why this novel theory of causation wasn’t reliable.\nTo begin, the theory wasn’t tested, subjected to peer review,\nor described in medical literature. See Lapsley, 689 F.3d at\n810. Moreover, the phenomena that Dr. Ferzoco described\nwere not found in Mrs. Bowersock’s medical records or\nautopsy report. Last, the judge discounted Dr. Ferzoco’s\ncontention that he had previously treated patients injured in\nthis manner, explaining that the claim was not substantiated\nwith identified patients or records. See Olinger v. U.S. Golf\nAss’n, 52 F. Supp. 2d 947, 950 (N.D. Ind. 1999) (“The court\ncannot evaluate the reliability of the undisclosed methodol-\nogy or of the principles that support the methodology.”).\n On appeal the plaintiffs contend that Dr. Ferzoco’s meth-\nod was the equivalent of a differential diagnosis, which is an\n“accepted and valid methodology.” Myers v. Ill. Cent. R.R.\nCo., 629 F.3d 639, 644 (7th Cir. 2010). Put in simple terms, a\ndifferential diagnosis “provides a framework in which all\nreasonable hypotheses are ‘ruled in’ as possible causes of a\nmedical problem and some of these possible causes are then\n‘ruled out’ to the extent scientific evidence makes it appro-\npriate to do so.” Ervin v. Johnson & Johnson, Inc., 492 F.3d 901,\n903 (7th Cir. 2007). The plaintiffs didn’t raise this argument\nat summary judgment, however. They first used the term\n\fNo. 17-2068 11\n\n“differential diagnosis” in their motion to alter or amend the\njudgment. That’s too late to preserve an argument for ap-\npeal. Cf. Green v. Whiteco Indus., Inc., 17 F.3d 199, 201 n.4 (7th\nCir. 1994) (“[R]aising [an] argument for the first time in the\nmotion for reconsideration is not adequate to preserve the\nissue for appeal and definitively waives it.”).\n The plaintiffs insist that they presented the argument be-\nlow, just without using the term “differential diagnosis.”\nThey point to their argument at summary judgment that\nDr. Ferzoco’s opinions were “founded on reliable methods,\nexperience[,] and data.” That’s far too general a statement to\nsituate their expert’s opinion in the specific domain of\ndifferential-diagnosis methodology. See Fednav Int’l Ltd. v.\nCont’l Ins. Co., 624 F.3d 834, 841 (7th Cir. 2010) (explaining\nthat the failure to present a specific argument below results\nin waiver, even if the argument “may have been before the\ndistrict court in more general terms”).\n Even if preserved, the argument fails on the merits.\nThough differential diagnosis is widely accepted as a general\nmatter, an expert’s decision to “rule in” or “rule out” poten-\ntial causes must itself be “scientifically valid.” Ervin, 492 F.3d\nat 904. In other words, Dr. Ferzoco needed to establish the\nreliability of his nidus theory in order to “rule in” the buck-\nling as a potential cause of Mrs. Bowersock’s death. As\nwe’ve noted, the judge identified several reasons why\nDr. Ferzoco’s nidus theory is not sufficiently reliable.\n The plaintiffs also argue that a scientific theory should\nnot be rejected solely because it lacks peer review. See Smith\nv. Ford Motor Co., 215 F.3d 713, 720 (7th Cir. 2000). But the\njudge gave multiple reasons for his decision, including the\nlack of corroborating evidence in Mrs. Bowersock’s medical\n\f12 No. 17-2068\n\nrecords and autopsy report. Along the same lines, the plain-\ntiffs repeatedly assert that the lack of scientific literature\nsupporting the expert’s theory goes to the weight, not the\nadmissibility, of his testimony. That’s not the correct stand-\nard. Rule 702 and Daubert require the judge to act as a vigor-\nous gatekeeper to ensure the reliability of expert testimony.\nSee Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149 (1999).\n In sum, the plaintiffs cannot prove medical causation\nwithout Dr. Ferzoco’s testimony. The record reflects that the\njudge properly applied the Daubert framework and soundly\nexercised his discretion to exclude it. It follows that Bard\nwas entitled to summary judgment.\n AFFIRMED.\n[END_CASE]", "role": "user" } ]
4,583,601		United States v. Scott Griffith	2019-01-22	18-1310	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before ROVNER, SYKES, and BARRETT, Circuit Judges.", "parties": "", "opinions": [{"author": "Ilana Kara Diamond Rovner", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\nNo. 18-1310\n\nUNITED STATES OF AMERICA,\n Plaintiff-Appellee,\n\n v.\n\n\nSCOTT B. GRIFFITH,\n Defendant-Appellant.\n\n\n Appeal from the United States District Court for the\n Central District of Illinois.\n No. 4:16-cr-40010-SLD-1 — Sara Darrow, Judge.\n\n\n\n ARGUED NOVEMBER 7, 2018 — DECIDED JANUARY 22, 2019\n\n\n Before ROVNER, SYKES, and BARRETT, Circuit Judges.\n ROVNER, Circuit Judge. Scott B. Griffith pled guilty to a\nthree-count indictment that charged him with receiving,\ndistributing, and possessing child pornography. The district\ncourt sentenced him to 240 months’ imprisonment on each\ncount, to run concurrently, as well as a fifteen-year period of\nsupervised release. On appeal, he asserts that the district court\n\f2 No. 18-1310\n\ncommitted procedural error in calculating the guidelines\nrange, and that his resulting sentence is substantively unrea-\nsonable. We affirm.\n I.\n Griffith was charged with: (1) receiving four digital images\nof child pornography, in violation of 18 U.S.C.\n§§ 2252A(a)(2)(A) and 2252A(b)(1); (2) distributing three digital\nimages of child pornography (different than those received), in\nviolation of 18 U.S.C. §§ 2252A(a)(2)(A) and 2252A(b)(1); and\n(3) possessing visual depictions of child pornography in\naddition to those described in the receipt and distribution\ncounts, in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and\n2252A(b)(2). In total, Griffith’s crimes included 477 photo-\ngraphs and eleven videos of unspecified length. All counts\nwere alleged to have occurred during a three-month period\nnear the end of 2015, and all involved the use of Twitter\naccounts. Each time Twitter detected child pornography on\nGriffith’s account, the company closed the account and\nreported the inappropriate activity. Griffith created more than\ntwenty-five Twitter accounts during that three-month period\nin an attempt to thwart the company’s efforts, directing his\nfollowers from one account to the next.\n Prior to committing these crimes, Griffith, who was fifty-\ntwo years old at the time of his arrest, had amassed enough of\na criminal history to land him in Category V, only one level\nbelow the top of the scale. At the age of twenty, he had\nsexually abused a child under the age of thirteen, a conviction\nthat was too old to be counted for criminal history purposes.\nThe vast majority of his remaining criminal history was\n\fNo. 18-1310 3\n\ncomposed of driving offenses and thefts, some minor and some\nmore serious. Additionally, two women had sought and\nreceived orders of protection against Griffith after he threat-\nened them. His criminal record prior to this offense spanned\nnearly thirty years and a dozen of the previous offenses were\neither too old or too minor to be included in the calculation of\nhis criminal history.\n The Presentence Investigation Report (“PSR”)1 noted that\nthe base offense level for the three grouped counts was 22,\nciting U.S.S.G. § 2G2.2. An analysis of specific offense charac-\nteristics added 18 levels for a total of 40. In particular, the PSR\nadded two levels under section 2G2.2(b)(2) because the\nmaterial involved a prepubescent minor. Griffith solicited child\npornography on his Twitter pages in exchange for access to his\nown collection, leading to a five-level increase under section\n2G2.2(b)(3)(b), for distributing the pictures in exchange for\nnon-pecuniary, valuable consideration, a transaction some-\ntimes called a “peer-to-peer exchange.” Four levels were added\nunder section 2G2.2(b)(4)(A) and (B) for material that depicted\nviolence and sexual abuse or exploitation of a toddler. The use\nof a computer contributed two levels under section 2G2.2(b)(6).\nFinally, each of the eleven videos was treated as equivalent to\nseventy-five images which, when added to the 477 photo-\ngraphs, pushed the total images over 600 and added five levels\n\n1\n There are two versions of the PSR in the record, an original and a revised\nversion. The revised version includes an addendum that details the\ndefendant’s objections to the first PSR and the government’s response, as\nwell as some other revisions and recommendations. For the purpose of\ncalculating the offense level and criminal history category, the PSRs are\nessentially the same. We will note any differences when relevant.\n\f4 No. 18-1310\n\nunder section 2G2.2(b)(7)(D), for an adjusted offense level of\n40. After deducting three levels for acceptance of responsibil-\nity, the PSR set the total offense level at 37. Both versions of the\nPSR noted that the guidelines range for a total offense level of\n37 and a criminal history Category V is 324 to 405 months’\nimprisonment. Both PSRs took the position that Griffith’s prior\nconviction for sexual abuse qualified him for enhanced\nmandatory minimums under 18 U.S.C. § 2252A(b)(1), noting\nthat the enhanced terms for Counts I and II were fifteen to\nforty years. Count III carried a minimum of ten years and a\nmaximum of twenty years, assuming that the enhanced\npenalty applied. The revised PSR incorrectly stated that,\nwithout the enhanced mandatory minimums, the guidelines\nrange would be 240 months. Neither party noticed that error\nuntil the sentencing hearing, as we discuss below.\n Griffith filed a number of objections to the PSR in the\ndistrict court, largely falling into three categories. First, he\nobjected to the application of the “specific offense characteris-\ntics” provisions that added eighteen levels to the base offense\nlevel. He contended that the additional levels assessed against\nhim were based on “arbitrary, unreasonable and unwarranted\nsentencing factors which are inherent in the offense of convic-\ntion, and patently inconsistent with the purposes of Title 18\nU.S.C. Section 3553(a).” R. 18 at 1–2. He complained that the\n“rote application” of those provisions “yields a draconian\nguideline sentencing range of 324–405 months (27 to 33.75\nyears),” a result he characterized as “wholly incompatible”\nwith the section 3553(a) factors and “offensive to the ends of\njustice.” R. 18, at 2. The crux of Griffith’s objection was that\n\fNo. 18-1310 5\n\nguideline 2G2.2 is fundamentally flawed and that a below-\nguidelines sentence was warranted:\n In sum, Mr. Griffith’s objections to the specific\n offense characteristics being assessed against him\n are that the child pornography guidelines, as ap-\n plied to him on the facts of this case, are excessively\n harsh and fundamentally incompatible with the\n §3553(a) sentencing factors. … Accordingly, Mr.\n Griffith asks [for] a substantial downward variance\n from the guidelines at the time of sentencing.\nR. 18 at 6-7. Griffith’s second major objection was that the court\nshould not apply enhanced mandatory minimum terms\nagainst him based on his prior criminal sexual abuse convic-\ntion under 18 U.S.C. § 2252A(b)(1). The district court agreed\nwith this position, finding that the enhanced mandatory\nminimum terms did not apply to him, and that issue is not a\npart of this appeal. Finally, he maintained that Criminal\nHistory Category V over-represented his criminal history.\n At the sentencing hearing, after resolving the enhanced\nmandatory minimum issue in Griffith’s favor, the district court\nnoted that the statutory range for Counts I and II was five to\ntwenty years, and zero to twenty years for Count III. The court\nthen found that the total offense level was 37, the Criminal\nHistory was Category V, and the guidelines range (which had\nbeen calculated to be 324 to 405 months) would become 240\nmonths because of the statutory cap for each count. The court\nasked if the parties concurred “with the Court’s recitation as to\nthe applicable statutory and guideline provisions,” and both\n\f6 No. 18-1310\n\nparties replied, “Yes.” R. 37, Sent. Tr. at 19. The court then\nadopted the revised PSR and its addendum.\n After the parties presented argument regarding Griffith’s\nobjections and the section 3553(a) factors, the government\nasked the court to clarify the guidelines range. The government\npointed out that because Griffith pled guilty to three separate\noffenses involving discrete materials, his sentences could run\nconsecutively, meaning there was a sixty-year statutory cap,\nnot a twenty-year maximum. After asking the probation officer\nto check the calculation, the court announced:\n Yes. The gist is if I ran it consecutively, I could\n impose a guideline range sentence which would be\n the 324 to 405 months. In other words, the statutory\n cap here would be 60 years—…—if run consecu-\n tively. I understand that. … Do you want me to\n refine that? I mean, I think it was—I guess all I’ll say\n is I think it was an error for me to say earlier that the\n guideline range becomes the statutory cap because\n they could be run consecutively. … Is that an accu-\n rate assessment?\nR. 37, Sent. Tr. at 37-38. Defense counsel responded, “Yes.” Id.\n After the defendant made a statement, the court addressed\nthe section 3553(a) factors. In the midst of a thorough discus-\nsion of those factors, the court exhaustively addressed Grif-\nfith’s arguments regarding “the fairness of these guidelines.”\nR. 37, Sent. Tr. at 48. Catering her analysis to the facts of\nGriffith’s offenses, the judge found appropriate the two-level\nenhancement for material depicting prepubescent children, the\nfive-level addition for peer-to-peer exchange of material, and\n\fNo. 18-1310 7\n\nthe four-level bump for the violence of the images. The court\nnoted that it discounted the two-level enhancement for use of\na computer in nearly all cases because it was part of every\noffense and so “not applying the two-level enhancement in\nterms of a variance would be appropriate for use of [a] com-\nputer.” R. 37, Sent. Tr. at 49. On the number of images, the\ncourt noted that it lacked information regarding the length of\nthe videos or what was depicted on them, making it difficult to\ncompute a final number. She declined to use the “boilerplate”\ncomputation of 75 images per video, finding that a four-level\nenhancement for the number of images would be more\nappropriate than the five levels indicated by the guidelines for\n477 photographs and eleven videos:\n I think that the—so, the variance, if you want to call\n it that, for my recalculated guidelines would be 37.\n I think that would be the appropriate reflection of\n the seriousness of your conduct here.\nR. 37, Sent. Tr. at 50. The court then found that Criminal\nHistory Category V appropriately reflected Griffith’s criminal\nconduct over a lengthy span of time. Before announcing the\nsentence, the court remarked that Griffith was not the typical\nchild pornography defendant because most were level 34 with\na Criminal History Category I but Griffith was “squarely” a\nCategory V. R. 37, Sent. Tr. at 57. After defense counsel\nconfirmed that the court had addressed all of Griffith’s\narguments in mitigation, the judge sentenced Griffith to 240\nmonths’ imprisonment on each count, to run concurrently, as\nwell as a term of supervised release. Griffith appeals.\n\f8 No. 18-1310\n\n II.\n On appeal, Griffith contends that the district court commit-\nted procedural error when it failed to correctly calculate the\nguidelines sentence before imposing the 240-month sentence.\nHe also argues that the court imposed a substantively unrea-\nsonable sentence. We apply the abuse of discretion standard in\nreviewing whether sentencing decisions are reasonable. Gall v.\nUnited States, 552 U.S. 38, 46 (2007); United States v. Smith, 860\nF.3d 508, 514 (7th Cir. 2017). We first must ensure that the\ndistrict court committed no significant procedural error, such\nas incorrectly calculating the guidelines range, failing to\nconsider the section 3553(a) factors, selecting a sentence based\non clearly erroneous facts, or failing to explain adequately the\nchosen sentence. Gall, 552 U.S. at 51; Smith, 860 F.3d at 514.\nWhether the district court committed procedural error is a\nquestion of law that we review de novo. Smith, 860 F.3d at 514;\nUnited States v. Mendoza, 510 F.3d 749, 754 (7th Cir. 2007).\n In raising his procedural challenge, Griffith first asserts that\nthe court did not correctly calculate the guidelines range when\nit initially adopted the PSR addendum’s erroneous guidelines\ncalculation. He also maintains that the court failed to rule on a\nfinal guidelines range before pronouncing sentence. These\nobjections do not hold up to a fair reading of the sentencing\ntranscript.\n After adopting the revised PSR and its addendum during\nthe sentencing hearing, the court became aware that the\ndocument contained an error. The revised PSR calculated the\nguidelines range as 324 to 405 months if the enhanced manda-\ntory minimum applied, and as 240 months if that statutory\n\fNo. 18-1310 9\n\nenhancement did not apply. Prior to the hearing, neither party\nnoticed that the statutory cap was not limited to 240 months.\nGriffith had pled guilty to three counts, each with its own cap\nof twenty years (or 240 months), and those terms could be\nimposed consecutively for a total of sixty years. As we noted\nabove, the government alerted the judge to this error after she\nrejected the statutory enhancement and otherwise adopted the\nPSR. The court agreed with the government’s proposed\ncorrection and then found that the statutory maximum was\nsixty years. As the judge clarified at the sentencing hearing,\nthat meant that the guidelines range was not capped at twenty\nyears but was in fact 324 to 405 months, which was well within\nthe sixty-year cap. Both parties expressly agreed that this was\nan accurate assessment of the guidelines. In other words, the\ncourt was no longer adopting the PSR in its entirety but was\namending its earlier ruling to account for the corrected\nstatutory cap of sixty years, making the correct guidelines\nrange 324 to 405 months. An argument that the court erred in\ninitially adopting the erroneous PSR is a non-starter. The court\nrecognized and corrected that error before announcing the\nsentence. Any initial misstep was harmless because it did not\naffect the court’s choice of sentence. United States v. Morris, 775\nF.3d 882, 885 (7th Cir. 2015).\n Griffith next claims that the court re-analyzed the five\nspecific offense characteristics for section 2G2.2 but never\nrecalculated the guidelines to reflect that new analysis. He is\nreferring, of course, to the district court’s discussion of a\ndownward “variance” equivalent to two levels for use of a\ncomputer and one level for the total number of images. In\ncontext, however, it is clear that the court was not re-analyzing\n\f10 No. 18-1310\n\nthe specific offense characteristics in order to correct the\nguidelines calculation but rather was expressing disagreement\nwith the properly calculated guidelines sentence.\n After United States v. Booker, 543 U.S. 220 (2005), a sentenc-\ning judge has the discretion to disagree with a particular\nprovision of the guidelines and to impose a non-guidelines\nsentence that, in his or her judgment, is more consistent with\nthe statutory sentencing factors set out in section 3553(a).\nKimbrough v. United States, 552 U.S. 85 (2007); Smith, 860 F.3d at\n517; United States v. Rosales, 813 F.3d 634, 637 (7th Cir. 2016). In\nthe context of addressing the section 3553(a) factors, the court\nhere explained that it routinely varied downward the equiva-\nlent of two levels because child pornography offenses virtually\nalways involve the use of a computer, making the application\nof section 2G2.2(b)(6) inappropriate, in the court’s opinion. The\ncourt similarly disagreed with the “boilerplate” addition of\nseventy-five images for each video, allowing for a downward\nvariance equivalent to one level. The court then stated that “the\nvariance, if you want to call it that, for my recalculated\nguidelines would be 37.” R. 37, Sent. Tr. at 50. That mention of\nlevel 37 was likely a misstatement because it did not take into\naccount that the court had also adopted the PSR recommenda-\ntion to allow a three-level reduction for acceptance of responsi-\nbility, and so the variance was analogous to level 34, not level\n37. The misstatement had no effect on the sentence, however,\nbecause the court treated the variance as equivalent to a level\n34 sentence, not a level 37 sentence.\n In expressing its policy disagreement with the application\nof certain specific offense characteristics, the court simply\nanalogized the variance to reductions in particular specific\n\fNo. 18-1310 11\n\noffense characteristic levels. The court made this adjustment\nunder section 3553(a), and had no occasion to recalculate the\nfinal guidelines level. In Criminal History Category V, the\nanalogous level 34 sentence yields a guidelines range of 235 to\n293 months. The final sentence of 240 months is on the low end\nof a level 34 sentence and a full 84 months below the bottom of\nthe properly calculated guidelines range. If, as Griffith argues,\nthe court had mistakenly failed to account for acceptance of\nresponsibility when deciding how much to vary, the sentence\nwould have been significantly higher. We have no doubt that\nthe court was not correcting the guidelines calculation but was\nsimply explaining a downward variance under section 3553(a)\nfrom the properly calculated range by way of analogy to the\nguidelines.\n We emphasize that it was not necessary for the court to\nanalogize to the guidelines when explaining the downward\nvariance. United States v. Kuczora, 910 F.3d 904, 908 (7th Cir.\n2018) (“the sentencing court need not frame its explanation of\na sentence in terms of a departure from the guidelines range,\nbut may instead focus on the appropriateness of the sentence\nunder § 3553.”) (quoting United States v. Courtland, 642 F.3d\n545, 550 (7th Cir. 2011)). A court need only explain why a\nsentence is appropriate under the statutory criteria. Kuczora,\n910 F.3d at 908. So long as a court uses the properly calculated\nguidelines range as a starting point, it may explain a decision\nto vary from the range with reference to the section 3553(a)\nfactors alone. Kuczora, 910 F.3d at 908.\n We also note that the court had not found any error in the\nPSR’s calculation of the guidelines (other than the statutory cap\nissue we noted earlier) and had no reason to recalculate the\n\f12 No. 18-1310\n\nguidelines. The court’s Statement of Reasons explaining the\nsentence makes clear that the court intended for the three-level\nreduction to be a variance because of a policy disagreement\nwith the properly calculated guidelines, not a change to the\nguidelines calculation. R. 27, at 3, ¶ VI.D. And Griffith points\nto no error in the district court’s guidelines calculation here.\nIndeed, Griffith did not challenge the factual basis of the\nguidelines calculation or the final offense level in the district\ncourt. He argued instead that the resulting offense level was\ninconsistent with the purposes of sentencing expressed in\nsection 3553(a). He did not deny, for example, that some of the\nphotographs depicted prepubescent minors, or that certain\nimages portrayed violence towards and sexual abuse of\ntoddlers. He conceded that he offered access to his Twitter\naccounts in exchange for additional child pornography, that he\nused a computer and that his offenses involved more than 600\nimages when calculated under guidelines standards. But in\nconceding the basic facts underlying the calculation and the\nresult of the \"rote application\" of the guidelines provisions, he\nobjected only that the result produced a draconian and\nunjustified sentence. In light of all of the circumstances, the\nonly reasonable reading of the sentencing transcript is that the\ncourt understood and announced a correct calculation of the\nguidelines and then varied downward by analogy to certain\nguidelines factors during the discussion of the statutory\nfactors.\n Finally, we can quickly dispense with any claim that the\nfinal sentence was substantively unreasonable. When assessing\nthe substantive reasonableness of a sentence under the abuse\nof discretion standard, we presume that a within-guidelines\n\fNo. 18-1310 13\n\nsentence is reasonable. Rita v. United States, 551 U.S. 338,\n347–56 (2007); United States v. Moore, 851 F.3d 666, 674 (7th Cir.\n2017). That same presumption obviously applies to a below-\nguidelines sentence, such as the one imposed here. Moore, 851\nF.3d at 674. Griffith bears the burden of rebutting that pre-\nsumption by demonstrating that the sentence is unreasonably\nhigh in light of the section 3553(a) factors. United States v.\nMykytiuk, 415 F.3d 606, 608 (7th Cir. 2005).\n Griffith attempts to surmount that challenge by arguing\nthat his collection of child pornography was relatively small;\nthat his crimes involved no contact offenses; that a twenty-year\nterm was a de facto life sentence for a man of his age and health;\nthat the sentence was unnecessary to deter recidivism because\nof his age and the lengthy term of supervised release; and that\nsection 2G2.2 encourages unreasonably harsh sentences. The\ndistrict court carefully considered and addressed each of these\narguments, and Griffith’s claim on appeal amounts to a request\nthat we substitute our judgment for that of the district court. In\nthe usual course, it would be the government, not the defen-\ndant, arguing that the court abused its discretion by granting\na significantly below-guidelines sentence. In any case, the\ndistrict court did not abuse its discretion in granting Griffith an\neighty-four month break from the bottom of the properly-\ncalculated guidelines sentencing range, and the sentence was\nsubstantively reasonable.\n AFFIRMED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4360854/", "author_raw": "Ilana Kara Diamond Rovner"}]}	ROVNER	SYKES	BARRETT	1		{"ROVNER": ", Circuit", "SYKES": ", Circuit", "BARRETT": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4583601/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: United States v. Scott Griffith\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-22\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\nNo. 18-1310\n\nUNITED STATES OF AMERICA,\n Plaintiff-Appellee,\n\n v.\n\n\nSCOTT B. GRIFFITH,\n Defendant-Appellant.\n\n\n Appeal from the United States District Court for the\n Central District of Illinois.\n No. 4:16-cr-40010-SLD-1 — Sara Darrow, Judge.\n\n\n\n ARGUED NOVEMBER 7, 2018 — DECIDED JANUARY 22, 2019\n\n\n Before ROVNER, SYKES, and BARRETT, Circuit Judges.\n ROVNER, Circuit Judge. Scott B. Griffith pled guilty to a\nthree-count indictment that charged him with receiving,\ndistributing, and possessing child pornography. The district\ncourt sentenced him to 240 months’ imprisonment on each\ncount, to run concurrently, as well as a fifteen-year period of\nsupervised release. On appeal, he asserts that the district court\n\f2 No. 18-1310\n\ncommitted procedural error in calculating the guidelines\nrange, and that his resulting sentence is substantively unrea-\nsonable. We affirm.\n I.\n Griffith was charged with: (1) receiving four digital images\nof child pornography, in violation of 18 U.S.C.\n§§ 2252A(a)(2)(A) and 2252A(b)(1); (2) distributing three digital\nimages of child pornography (different than those received), in\nviolation of 18 U.S.C. §§ 2252A(a)(2)(A) and 2252A(b)(1); and\n(3) possessing visual depictions of child pornography in\naddition to those described in the receipt and distribution\ncounts, in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and\n2252A(b)(2). In total, Griffith’s crimes included 477 photo-\ngraphs and eleven videos of unspecified length. All counts\nwere alleged to have occurred during a three-month period\nnear the end of 2015, and all involved the use of Twitter\naccounts. Each time Twitter detected child pornography on\nGriffith’s account, the company closed the account and\nreported the inappropriate activity. Griffith created more than\ntwenty-five Twitter accounts during that three-month period\nin an attempt to thwart the company’s efforts, directing his\nfollowers from one account to the next.\n Prior to committing these crimes, Griffith, who was fifty-\ntwo years old at the time of his arrest, had amassed enough of\na criminal history to land him in Category V, only one level\nbelow the top of the scale. At the age of twenty, he had\nsexually abused a child under the age of thirteen, a conviction\nthat was too old to be counted for criminal history purposes.\nThe vast majority of his remaining criminal history was\n\fNo. 18-1310 3\n\ncomposed of driving offenses and thefts, some minor and some\nmore serious. Additionally, two women had sought and\nreceived orders of protection against Griffith after he threat-\nened them. His criminal record prior to this offense spanned\nnearly thirty years and a dozen of the previous offenses were\neither too old or too minor to be included in the calculation of\nhis criminal history.\n The Presentence Investigation Report (“PSR”)1 noted that\nthe base offense level for the three grouped counts was 22,\nciting U.S.S.G. § 2G2.2. An analysis of specific offense charac-\nteristics added 18 levels for a total of 40. In particular, the PSR\nadded two levels under section 2G2.2(b)(2) because the\nmaterial involved a prepubescent minor. Griffith solicited child\npornography on his Twitter pages in exchange for access to his\nown collection, leading to a five-level increase under section\n2G2.2(b)(3)(b), for distributing the pictures in exchange for\nnon-pecuniary, valuable consideration, a transaction some-\ntimes called a “peer-to-peer exchange.” Four levels were added\nunder section 2G2.2(b)(4)(A) and (B) for material that depicted\nviolence and sexual abuse or exploitation of a toddler. The use\nof a computer contributed two levels under section 2G2.2(b)(6).\nFinally, each of the eleven videos was treated as equivalent to\nseventy-five images which, when added to the 477 photo-\ngraphs, pushed the total images over 600 and added five levels\n\n1\n There are two versions of the PSR in the record, an original and a revised\nversion. The revised version includes an addendum that details the\ndefendant’s objections to the first PSR and the government’s response, as\nwell as some other revisions and recommendations. For the purpose of\ncalculating the offense level and criminal history category, the PSRs are\nessentially the same. We will note any differences when relevant.\n\f4 No. 18-1310\n\nunder section 2G2.2(b)(7)(D), for an adjusted offense level of\n40. After deducting three levels for acceptance of responsibil-\nity, the PSR set the total offense level at 37. Both versions of the\nPSR noted that the guidelines range for a total offense level of\n37 and a criminal history Category V is 324 to 405 months’\nimprisonment. Both PSRs took the position that Griffith’s prior\nconviction for sexual abuse qualified him for enhanced\nmandatory minimums under 18 U.S.C. § 2252A(b)(1), noting\nthat the enhanced terms for Counts I and II were fifteen to\nforty years. Count III carried a minimum of ten years and a\nmaximum of twenty years, assuming that the enhanced\npenalty applied. The revised PSR incorrectly stated that,\nwithout the enhanced mandatory minimums, the guidelines\nrange would be 240 months. Neither party noticed that error\nuntil the sentencing hearing, as we discuss below.\n Griffith filed a number of objections to the PSR in the\ndistrict court, largely falling into three categories. First, he\nobjected to the application of the “specific offense characteris-\ntics” provisions that added eighteen levels to the base offense\nlevel. He contended that the additional levels assessed against\nhim were based on “arbitrary, unreasonable and unwarranted\nsentencing factors which are inherent in the offense of convic-\ntion, and patently inconsistent with the purposes of Title 18\nU.S.C. Section 3553(a).” R. 18 at 1–2. He complained that the\n“rote application” of those provisions “yields a draconian\nguideline sentencing range of 324–405 months (27 to 33.75\nyears),” a result he characterized as “wholly incompatible”\nwith the section 3553(a) factors and “offensive to the ends of\njustice.” R. 18, at 2. The crux of Griffith’s objection was that\n\fNo. 18-1310 5\n\nguideline 2G2.2 is fundamentally flawed and that a below-\nguidelines sentence was warranted:\n In sum, Mr. Griffith’s objections to the specific\n offense characteristics being assessed against him\n are that the child pornography guidelines, as ap-\n plied to him on the facts of this case, are excessively\n harsh and fundamentally incompatible with the\n §3553(a) sentencing factors. … Accordingly, Mr.\n Griffith asks [for] a substantial downward variance\n from the guidelines at the time of sentencing.\nR. 18 at 6-7. Griffith’s second major objection was that the court\nshould not apply enhanced mandatory minimum terms\nagainst him based on his prior criminal sexual abuse convic-\ntion under 18 U.S.C. § 2252A(b)(1). The district court agreed\nwith this position, finding that the enhanced mandatory\nminimum terms did not apply to him, and that issue is not a\npart of this appeal. Finally, he maintained that Criminal\nHistory Category V over-represented his criminal history.\n At the sentencing hearing, after resolving the enhanced\nmandatory minimum issue in Griffith’s favor, the district court\nnoted that the statutory range for Counts I and II was five to\ntwenty years, and zero to twenty years for Count III. The court\nthen found that the total offense level was 37, the Criminal\nHistory was Category V, and the guidelines range (which had\nbeen calculated to be 324 to 405 months) would become 240\nmonths because of the statutory cap for each count. The court\nasked if the parties concurred “with the Court’s recitation as to\nthe applicable statutory and guideline provisions,” and both\n\f6 No. 18-1310\n\nparties replied, “Yes.” R. 37, Sent. Tr. at 19. The court then\nadopted the revised PSR and its addendum.\n After the parties presented argument regarding Griffith’s\nobjections and the section 3553(a) factors, the government\nasked the court to clarify the guidelines range. The government\npointed out that because Griffith pled guilty to three separate\noffenses involving discrete materials, his sentences could run\nconsecutively, meaning there was a sixty-year statutory cap,\nnot a twenty-year maximum. After asking the probation officer\nto check the calculation, the court announced:\n Yes. The gist is if I ran it consecutively, I could\n impose a guideline range sentence which would be\n the 324 to 405 months. In other words, the statutory\n cap here would be 60 years—…—if run consecu-\n tively. I understand that. … Do you want me to\n refine that? I mean, I think it was—I guess all I’ll say\n is I think it was an error for me to say earlier that the\n guideline range becomes the statutory cap because\n they could be run consecutively. … Is that an accu-\n rate assessment?\nR. 37, Sent. Tr. at 37-38. Defense counsel responded, “Yes.” Id.\n After the defendant made a statement, the court addressed\nthe section 3553(a) factors. In the midst of a thorough discus-\nsion of those factors, the court exhaustively addressed Grif-\nfith’s arguments regarding “the fairness of these guidelines.”\nR. 37, Sent. Tr. at 48. Catering her analysis to the facts of\nGriffith’s offenses, the judge found appropriate the two-level\nenhancement for material depicting prepubescent children, the\nfive-level addition for peer-to-peer exchange of material, and\n\fNo. 18-1310 7\n\nthe four-level bump for the violence of the images. The court\nnoted that it discounted the two-level enhancement for use of\na computer in nearly all cases because it was part of every\noffense and so “not applying the two-level enhancement in\nterms of a variance would be appropriate for use of [a] com-\nputer.” R. 37, Sent. Tr. at 49. On the number of images, the\ncourt noted that it lacked information regarding the length of\nthe videos or what was depicted on them, making it difficult to\ncompute a final number. She declined to use the “boilerplate”\ncomputation of 75 images per video, finding that a four-level\nenhancement for the number of images would be more\nappropriate than the five levels indicated by the guidelines for\n477 photographs and eleven videos:\n I think that the—so, the variance, if you want to call\n it that, for my recalculated guidelines would be 37.\n I think that would be the appropriate reflection of\n the seriousness of your conduct here.\nR. 37, Sent. Tr. at 50. The court then found that Criminal\nHistory Category V appropriately reflected Griffith’s criminal\nconduct over a lengthy span of time. Before announcing the\nsentence, the court remarked that Griffith was not the typical\nchild pornography defendant because most were level 34 with\na Criminal History Category I but Griffith was “squarely” a\nCategory V. R. 37, Sent. Tr. at 57. After defense counsel\nconfirmed that the court had addressed all of Griffith’s\narguments in mitigation, the judge sentenced Griffith to 240\nmonths’ imprisonment on each count, to run concurrently, as\nwell as a term of supervised release. Griffith appeals.\n\f8 No. 18-1310\n\n II.\n On appeal, Griffith contends that the district court commit-\nted procedural error when it failed to correctly calculate the\nguidelines sentence before imposing the 240-month sentence.\nHe also argues that the court imposed a substantively unrea-\nsonable sentence. We apply the abuse of discretion standard in\nreviewing whether sentencing decisions are reasonable. Gall v.\nUnited States, 552 U.S. 38, 46 (2007); United States v. Smith, 860\nF.3d 508, 514 (7th Cir. 2017). We first must ensure that the\ndistrict court committed no significant procedural error, such\nas incorrectly calculating the guidelines range, failing to\nconsider the section 3553(a) factors, selecting a sentence based\non clearly erroneous facts, or failing to explain adequately the\nchosen sentence. Gall, 552 U.S. at 51; Smith, 860 F.3d at 514.\nWhether the district court committed procedural error is a\nquestion of law that we review de novo. Smith, 860 F.3d at 514;\nUnited States v. Mendoza, 510 F.3d 749, 754 (7th Cir. 2007).\n In raising his procedural challenge, Griffith first asserts that\nthe court did not correctly calculate the guidelines range when\nit initially adopted the PSR addendum’s erroneous guidelines\ncalculation. He also maintains that the court failed to rule on a\nfinal guidelines range before pronouncing sentence. These\nobjections do not hold up to a fair reading of the sentencing\ntranscript.\n After adopting the revised PSR and its addendum during\nthe sentencing hearing, the court became aware that the\ndocument contained an error. The revised PSR calculated the\nguidelines range as 324 to 405 months if the enhanced manda-\ntory minimum applied, and as 240 months if that statutory\n\fNo. 18-1310 9\n\nenhancement did not apply. Prior to the hearing, neither party\nnoticed that the statutory cap was not limited to 240 months.\nGriffith had pled guilty to three counts, each with its own cap\nof twenty years (or 240 months), and those terms could be\nimposed consecutively for a total of sixty years. As we noted\nabove, the government alerted the judge to this error after she\nrejected the statutory enhancement and otherwise adopted the\nPSR. The court agreed with the government’s proposed\ncorrection and then found that the statutory maximum was\nsixty years. As the judge clarified at the sentencing hearing,\nthat meant that the guidelines range was not capped at twenty\nyears but was in fact 324 to 405 months, which was well within\nthe sixty-year cap. Both parties expressly agreed that this was\nan accurate assessment of the guidelines. In other words, the\ncourt was no longer adopting the PSR in its entirety but was\namending its earlier ruling to account for the corrected\nstatutory cap of sixty years, making the correct guidelines\nrange 324 to 405 months. An argument that the court erred in\ninitially adopting the erroneous PSR is a non-starter. The court\nrecognized and corrected that error before announcing the\nsentence. Any initial misstep was harmless because it did not\naffect the court’s choice of sentence. United States v. Morris, 775\nF.3d 882, 885 (7th Cir. 2015).\n Griffith next claims that the court re-analyzed the five\nspecific offense characteristics for section 2G2.2 but never\nrecalculated the guidelines to reflect that new analysis. He is\nreferring, of course, to the district court’s discussion of a\ndownward “variance” equivalent to two levels for use of a\ncomputer and one level for the total number of images. In\ncontext, however, it is clear that the court was not re-analyzing\n\f10 No. 18-1310\n\nthe specific offense characteristics in order to correct the\nguidelines calculation but rather was expressing disagreement\nwith the properly calculated guidelines sentence.\n After United States v. Booker, 543 U.S. 220 (2005), a sentenc-\ning judge has the discretion to disagree with a particular\nprovision of the guidelines and to impose a non-guidelines\nsentence that, in his or her judgment, is more consistent with\nthe statutory sentencing factors set out in section 3553(a).\nKimbrough v. United States, 552 U.S. 85 (2007); Smith, 860 F.3d at\n517; United States v. Rosales, 813 F.3d 634, 637 (7th Cir. 2016). In\nthe context of addressing the section 3553(a) factors, the court\nhere explained that it routinely varied downward the equiva-\nlent of two levels because child pornography offenses virtually\nalways involve the use of a computer, making the application\nof section 2G2.2(b)(6) inappropriate, in the court’s opinion. The\ncourt similarly disagreed with the “boilerplate” addition of\nseventy-five images for each video, allowing for a downward\nvariance equivalent to one level. The court then stated that “the\nvariance, if you want to call it that, for my recalculated\nguidelines would be 37.” R. 37, Sent. Tr. at 50. That mention of\nlevel 37 was likely a misstatement because it did not take into\naccount that the court had also adopted the PSR recommenda-\ntion to allow a three-level reduction for acceptance of responsi-\nbility, and so the variance was analogous to level 34, not level\n37. The misstatement had no effect on the sentence, however,\nbecause the court treated the variance as equivalent to a level\n34 sentence, not a level 37 sentence.\n In expressing its policy disagreement with the application\nof certain specific offense characteristics, the court simply\nanalogized the variance to reductions in particular specific\n\fNo. 18-1310 11\n\noffense characteristic levels. The court made this adjustment\nunder section 3553(a), and had no occasion to recalculate the\nfinal guidelines level. In Criminal History Category V, the\nanalogous level 34 sentence yields a guidelines range of 235 to\n293 months. The final sentence of 240 months is on the low end\nof a level 34 sentence and a full 84 months below the bottom of\nthe properly calculated guidelines range. If, as Griffith argues,\nthe court had mistakenly failed to account for acceptance of\nresponsibility when deciding how much to vary, the sentence\nwould have been significantly higher. We have no doubt that\nthe court was not correcting the guidelines calculation but was\nsimply explaining a downward variance under section 3553(a)\nfrom the properly calculated range by way of analogy to the\nguidelines.\n We emphasize that it was not necessary for the court to\nanalogize to the guidelines when explaining the downward\nvariance. United States v. Kuczora, 910 F.3d 904, 908 (7th Cir.\n2018) (“the sentencing court need not frame its explanation of\na sentence in terms of a departure from the guidelines range,\nbut may instead focus on the appropriateness of the sentence\nunder § 3553.”) (quoting United States v. Courtland, 642 F.3d\n545, 550 (7th Cir. 2011)). A court need only explain why a\nsentence is appropriate under the statutory criteria. Kuczora,\n910 F.3d at 908. So long as a court uses the properly calculated\nguidelines range as a starting point, it may explain a decision\nto vary from the range with reference to the section 3553(a)\nfactors alone. Kuczora, 910 F.3d at 908.\n We also note that the court had not found any error in the\nPSR’s calculation of the guidelines (other than the statutory cap\nissue we noted earlier) and had no reason to recalculate the\n\f12 No. 18-1310\n\nguidelines. The court’s Statement of Reasons explaining the\nsentence makes clear that the court intended for the three-level\nreduction to be a variance because of a policy disagreement\nwith the properly calculated guidelines, not a change to the\nguidelines calculation. R. 27, at 3, ¶ VI.D. And Griffith points\nto no error in the district court’s guidelines calculation here.\nIndeed, Griffith did not challenge the factual basis of the\nguidelines calculation or the final offense level in the district\ncourt. He argued instead that the resulting offense level was\ninconsistent with the purposes of sentencing expressed in\nsection 3553(a). He did not deny, for example, that some of the\nphotographs depicted prepubescent minors, or that certain\nimages portrayed violence towards and sexual abuse of\ntoddlers. He conceded that he offered access to his Twitter\naccounts in exchange for additional child pornography, that he\nused a computer and that his offenses involved more than 600\nimages when calculated under guidelines standards. But in\nconceding the basic facts underlying the calculation and the\nresult of the \"rote application\" of the guidelines provisions, he\nobjected only that the result produced a draconian and\nunjustified sentence. In light of all of the circumstances, the\nonly reasonable reading of the sentencing transcript is that the\ncourt understood and announced a correct calculation of the\nguidelines and then varied downward by analogy to certain\nguidelines factors during the discussion of the statutory\nfactors.\n Finally, we can quickly dispense with any claim that the\nfinal sentence was substantively unreasonable. When assessing\nthe substantive reasonableness of a sentence under the abuse\nof discretion standard, we presume that a within-guidelines\n\fNo. 18-1310 13\n\nsentence is reasonable. Rita v. United States, 551 U.S. 338,\n347–56 (2007); United States v. Moore, 851 F.3d 666, 674 (7th Cir.\n2017). That same presumption obviously applies to a below-\nguidelines sentence, such as the one imposed here. Moore, 851\nF.3d at 674. Griffith bears the burden of rebutting that pre-\nsumption by demonstrating that the sentence is unreasonably\nhigh in light of the section 3553(a) factors. United States v.\nMykytiuk, 415 F.3d 606, 608 (7th Cir. 2005).\n Griffith attempts to surmount that challenge by arguing\nthat his collection of child pornography was relatively small;\nthat his crimes involved no contact offenses; that a twenty-year\nterm was a de facto life sentence for a man of his age and health;\nthat the sentence was unnecessary to deter recidivism because\nof his age and the lengthy term of supervised release; and that\nsection 2G2.2 encourages unreasonably harsh sentences. The\ndistrict court carefully considered and addressed each of these\narguments, and Griffith’s claim on appeal amounts to a request\nthat we substitute our judgment for that of the district court. In\nthe usual course, it would be the government, not the defen-\ndant, arguing that the court abused its discretion by granting\na significantly below-guidelines sentence. In any case, the\ndistrict court did not abuse its discretion in granting Griffith an\neighty-four month break from the bottom of the properly-\ncalculated guidelines sentencing range, and the sentence was\nsubstantively reasonable.\n AFFIRMED.\n[END_CASE]", "role": "user" } ]
4,583,603	P.F., a Minor, BY A.F., His Parent, Et Al., Plaintiffs-Appellants v. Carolyn Stanford TAYLOR, State Superintendent of Public Instruction, Et Al., Defendants-Appellees.	P.F., a minor, by A.F. v. Carolyn S. Taylor	2019-01-22	17-3266	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Sykes, Barrett, Durkin", "parties": "", "opinions": [{"author": "Diane S. Sykes", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-3266\nP.F., a minor, by A.F.,\nhis parent, et al.,\n Plaintiffs-Appellants\n\n v.\n\nCAROLYN STANFORD TAYLOR, \nState Superintendent of Public\nInstruction, et al.,\n Defendants-Appellees.\n ____________________\n\n Appeal from the United States District Court\n for the Western District of Wisconsin.\n No. 14-cv-792 — William M. Conley, Judge.\n ____________________\n\n ARGUED APRIL 20, 2018 — DECIDED JANUARY 22, 2019\n ____________________\n\n Before SYKES and BARRETT, Circuit Judges, and DURKIN,\nDistrict Judge. †\n\n We have substituted Carolyn Stanford Taylor, the current State Superin-\ntendent of Public Instruction, for Tony Evers, the prior Superintendent.\n† Of the Northern District of Illinois, sitting by designation.\n\f2 No. 17-3266\n\n SYKES, Circuit Judge. Under Wisconsin’s open-enrollment\nprogram, a public-school student can apply to transfer from\nhis resident school district to a nonresident district that has\nan available space for him. WIS. STAT. § 118.51. The program\ndistinguishes between “regular education and special educa-\ntion spaces.” Id. § 118.51(5)(a)1. If a student with a disability\nrequires special services, a nonresident district may deny the\nstudent’s transfer application if it lacks the services or space\nnecessary to meet those special needs. Id. § 118.51(5)(a)4.\n This suit concerns a group of disabled schoolchildren\nwhose transfer applications were denied because nonresi-\ndent districts determined that they could not meet the\nstudents’ special needs. The students’ parents, on their\nchildren’s behalf, sued the school districts and various state\nactors seeking injunctive, declaratory, and compensatory\nrelief under Title II of the Americans with Disabilities Act\n(“ADA”), 42 U.S.C. § 12132; section 504 of the Rehabilitation\nAct, 29 U.S.C. § 794(a); and the Equal Protection Clause,\nU.S. CONST. amend. XIV, § 1. They argued that the program\nunlawfully discriminates against disabled children because\nof their disabilities. The district judge concluded that the\nprogram did not violate federal law and entered summary\njudgment for the defendants.\n We affirm. Differential treatment of special-needs stu-\ndents doesn’t make the program unlawful. Federal law\n“forbids discrimination based on stereotypes about a handi-\ncap, but it does not forbid decisions based on the actual\nattributes of the handicap.” Anderson v. Univ. of Wis.,\n841 F.2d 737, 740 (7th Cir. 1988). The program makes deci-\nsions based on the actual needs of disabled students, so it\ncomplies with federal law. And even if we analyze the case\n\fNo. 17-3266 3\n\nas a request for an accommodation, the requested change\nwould fundamentally alter the program, and neither the\nADA nor the Rehabilitation Act require fundamental altera-\ntions.\n I. Background\n In keeping with the Individuals with Disabilities Educa-\ntion Act, 20 U.S.C. §§ 1400, 1412(a)(1), Wisconsin law guar-\nantees children with disabilities a “free appropriate public\neducation” and requires school districts to provide special-\neducation services according to a disabled child’s “individu-\nalized education program.” WIS. STAT. §§ 115.76(7),\n115.77(1m)(d). An individualized education program (“IEP”)\noutlines the “special education and related services” or\n“program modifications or supports” that the disabled\nstudent requires. Id. § 115.787(2)(c). Typically the school\ndistrict in which a special-needs student resides must satisfy\nthe IEP requirements unless the student transfers districts.\nId. §§ 115.76(10), 115.77.\n Wisconsin’s open-enrollment program permits such a\ntransfer. Id. § 118.51(2). The program operates on a calendar.\nIn January school districts determine how many excess\n“spaces” are available in both regular-education classrooms\nand special-education services. Id. § 118.51(5)(a)1. They can\nconsider factors like “class size limits, pupil-teacher ratios[,]\nor enrollment projections.” Id. § 118.51(5)(a)1, (5)(a)4.\nRegular-education spaces are typically determined by grade\nlevel, id. § 118.51(5)(a)1, while “special education spaces” are\ndetermined “by program or services,” WIS. ADMIN. CODE PI\n§ 36.06(5)(a).\n\f4 No. 17-3266\n\n Between February and April, interested students may\nsubmit transfer applications to up to three nonresident\ndistricts. WIS. STAT. § 118.51(3)(a)1. If an applicant has an IEP\nin place, the resident district will send a copy of the plan to\nthe nonresident district. Id. § 118.51(3)(a)1m. Beginning in\nMay nonresident districts determine which applications they\nwill accept by comparing available space to the needs of the\napplicants. Id. § 118.51(3)(a)2. For applicants with IEPs,\nnonresident districts determine whether they have the\ncapacity to meet each student’s special needs. Relevant\nfactors for this analysis include\n [w]hether the special education or related ser-\n vices described in the child’s individualized\n education program under [WIS. STAT.]\n § 115.787(2) are available in the nonresident\n school district or whether there is space availa-\n ble to provide the special education or related\n services identified in the child’s individualized\n education program, including any class size\n limits, pupil-teacher ratios[,] or enrollment pro-\n jections established by the nonresident school\n board.\nId. § 118.51(5)(a)4.\n Districts notify applicants of their acceptance or rejection\nin June. Id. § 118.51(3)(a)3. Most applications are accepted,\nincluding those submitted by students with IEPs. In 2013–\n2014, districts approved 3,718 out of 5,822 transfer applica-\ntions for students with IEPs, or roughly 64%. The same year\ndistricts approved 71% of transfer applications for students\nwithout IEPs.\n\fNo. 17-3266 5\n\n The Wisconsin Department of Public Instruction admin-\nisters the program at the state level. It promulgates the\nstandard application forms, which include a checkbox for\nwhether the student has an IEP. The Department’s guidance\nemphasizes that “[a] student may not be denied open en-\nrollment based on the student’s disability.” MARY JO\nCLEAVER, WIS. DEP’T OF PUB. INSTRUCTION, MAKING OPEN\nENROLLMENT SPECIAL EDUCATION DECISIONS NONRESIDENT\nSCHOOL DISTRICT 2 (2012). Rather, “[t]he application may\nonly be denied based on the availability of or space in the\nspecial education or related services required in the stu-\ndent’s IEP.” Id. Individual school districts administer the\nprogram at the local level. They calculate capacity and\ndetermine whether there is an available space for a given\napplicant. The Department has the power to review and\noverturn these determinations.\n The three plaintiffs—R.W., P.F., and S.B.—each applied\nto transfer to nonresident school districts under the open-\nenrollment program. R.W. and P.F. have autism while S.B.\nhas ADHD. R.W. and his twin brother applied to transfer\nfrom the Kenosha Unified School District to the Paris J1\nSchool District in 2012. Paris initially accepted both applica-\ntions but later revoked its acceptance of R.W.’s application\nbecause it lacked the capacity to meet his special needs.\n P.F. applied to transfer from the Racine School District to\nthe Muskego–Norway School District in 2014. Muskego–\nNorway had previously determined that it had 55 spaces for\nregular students but zero spaces for special-needs students.\nMoreover, under the law in effect at the time, Racine would\nbe responsible for reimbursing Muskego–Norway for the\nadditional costs required to educate P.F. in accordance with\n\f6 No. 17-3266\n\nhis IEP. So Racine declined to approve the transfer, and\nMuskego–Norway ultimately denied P.F.’s application.\n S.B. applied to transfer from the Milwaukee School Dis-\ntrict to the Shorewood School District in 2014. His applica-\ntion was initially accepted. But when Shorewood later\ndiscovered that S.B. had an IEP, it promptly revoked his\nacceptance under section 118.51(5)(a)4 and expelled him\nfrom the school.\n The three students, by their parents, filed suit against the\nState Superintendent of Public Instruction, the Wisconsin\nDepartment of Public Instruction, and the three school\ndistricts that rejected their applications: Paris J1, Muskego–\nNorway, and Shorewood. 1 The plaintiffs claimed that the\nprogram violates the ADA, the Rehabilitation Act, and the\nEqual Protection Clause. The parties filed cross-motions for\nsummary judgment, and the district judge entered summary\njudgment for the defendants on all claims except for R.W.’s\nclaim for injunctive relief against Paris. That claim was later\ndismissed, and the judge entered final judgment for the\ndefendants.\n II. Discussion\n The plaintiffs limit their appeal to their claims under the\nADA and the Rehabilitation Act; they do not seek review of\nthe judge’s ruling for the defendants on their equal-\nprotection claim. We review a summary judgment de novo.\nPain Ctr. of Se. Ind. LLC v. Origin Healthcare Sols. LLC,\n893 F.3d 454, 459 (7th Cir. 2018). Summary judgment is\n\n\n1Three other disabled children, by their parents, joined the suit below,\nbut they are not involved in this appeal.\n\fNo. 17-3266 7\n\nappropriate when “there is no genuine issue of material fact\nand the moving party is entitled to a judgment as a matter of\nlaw.” FED. R. CIV. P. 56(c).\n We first address a jurisdictional issue. S.B. now resides in\nShorewood, so he is entitled to enroll as a resident student.\nWe therefore dismiss as moot his claims for injunctive and\ndeclaratory relief against Shorewood. See CTL ex rel.\nTrebatoski v. Ashland Sch. Dist., 743 F.3d 524, 528 (7th Cir.\n2014). But his change in residence does not moot his claim\nfor damages.\n Both Title II of the ADA and section 504 of the Rehabilita-\ntion Act prohibit discrimination against disabled individu-\nals. For our purposes the statutes are “functionally\nidentical.” Wagoner v. Lemmon, 778 F.3d 586, 592 (7th Cir.\n2015). A claim under either statute has two basic elements:\n(1) the plaintiff must be a qualified individual with a disabil-\nity; and (2) the plaintiff must have been denied governmen-\ntal benefits because of his disability. See 42 U.S.C. § 12132;\n29 U.S.C. § 794(a).\n The plaintiffs do not contend that the State Superinten-\ndent, the Department, or any of the school districts inten-\ntionally deviated from the program in a discriminatory\nmanner. Rather, they claim that the program itself discrimi-\nnates on the basis of disability and that the defendants are\nliable for their role in administering it. The question before\nus, then, is whether the open-enrollment program, by its\nterms, violates federal antidiscrimination law.\n It does not. The plaintiffs argue that the program dis-\ncriminates against disabled students because it imposes\ncriteria that apply only to students with special needs. But\n\f8 No. 17-3266\n\ntheir argument rests on mischaracterizations of federal law\nand the program itself. Under federal law a program is not\ndiscriminatory just because it takes an individual’s disability\ninto account. “[A]lthough a disability is not a permissible\nground for assuming an inability to function in a particular\ncontext, the disability is not thrown out when considering if\nthe person is qualified … .” Knapp v. Nw. Univ., 101 F.3d 473,\n482 (7th Cir. 1996). Put another way, federal law “forbids\ndiscrimination based on stereotypes about a handicap, but it\ndoes not forbid decisions based on the actual attributes of\nthe handicap.” Anderson, 841 F.2d at 740.\n Under the open-enrollment program, nonresident dis-\ntricts cannot turn away applicants merely because they are\ndisabled. Instead the program allows nonresident districts to\nrealistically assess whether they have the capacity and\nresources to comply with a transfer student’s IEP. Because\ndecisions are based on a student’s special needs, the pro-\ngram hinges on “the actual attributes of the handicap” rather\nthan mere “stereotypes.” Id. It’s far more limited than a true\nopen-enrollment program. It seeks to maximize school\nchoice but only to the extent that excess capacity exists. Any\nstudent is permitted to cross-enroll if the nonresident district\nhas excess capacity. No student has the right to cross-enroll\nif the nonresident district does not.\n For the program to work, school districts must evaluate\ntheir existing space and resources and the needs of the\ntransfer applicants. Not all students are the same. A sixth\ngrader requires different services than a fourth grader, and\nthe program allows districts to categorize their capacity\naccordingly. It wouldn’t follow that the program discrimi-\nnates against fourth graders if a nonresident school district\n\fNo. 17-3266 9\n\nonly has excess capacity in the sixth grade. The same is true\nof students with special needs. If a student with an IEP\nrequires special resources, it doesn’t make any more sense to\ntreat his needs as identical to those of his peers than it would\nto treat fourth graders the same as sixth graders.\n Properly framing the program leads to an easy resolution\nof this case. To be a “qualified individual with a disability,”\na child must meet the program’s “essential eligibility re-\nquirements.” 42 U.S.C. § 12131(2). The program only permits\napplicants to transfer if the nonresident district has excess\ncapacity. If a nonresident district lacks the capacity to serve a\ndisabled applicant’s needs, the applicant does not meet the\nprogram’s essential requirements. Neither has the applicant\nbeen denied admission “by reason of [his] disability.” Id.\n§ 12132. As we’ve explained, the program considers the\ncapacity of the nonresident district to meet the requirements\noutlined in the disabled student’s IEP rather than the mere\nfact of a disability.\n Even if we analyze this case as a request for an accom-\nmodation, the plaintiffs still aren’t entitled to relief. Neither\nthe ADA nor the Rehabilitation Act requires modifications\nthat “would fundamentally alter the nature of the service,\nprogram, or activity.” 28 C.F.R. § 35.130(b)(7)(i); see also\nTennessee v. Lane, 541 U.S. 509, 532 (2004). The requirement\nthat nonresident school districts have the excess capacity to\nmeet the needs of transferring students is a fundamental\ncomponent of this program. Demanding that nonresident\nschool districts accept students regardless of their existing\ncapacity to meet student needs would upend this key fea-\nture. Federal law does not require such an overhaul.\n AFFIRMED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4360856/", "author_raw": "Diane S. Sykes"}]}	SYKES	BARRETT	DURKIN	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4583603/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: P.F., a Minor, BY A.F., His Parent, Et Al., Plaintiffs-Appellants v. Carolyn Stanford TAYLOR, State Superintendent of Public Instruction, Et Al., Defendants-Appellees.\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-22\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-3266\nP.F., a minor, by A.F.,\nhis parent, et al.,\n Plaintiffs-Appellants\n\n v.\n\nCAROLYN STANFORD TAYLOR, \nState Superintendent of Public\nInstruction, et al.,\n Defendants-Appellees.\n ____________________\n\n Appeal from the United States District Court\n for the Western District of Wisconsin.\n No. 14-cv-792 — William M. Conley, Judge.\n ____________________\n\n ARGUED APRIL 20, 2018 — DECIDED JANUARY 22, 2019\n ____________________\n\n Before SYKES and BARRETT, Circuit Judges, and DURKIN,\nDistrict Judge. †\n\n We have substituted Carolyn Stanford Taylor, the current State Superin-\ntendent of Public Instruction, for Tony Evers, the prior Superintendent.\n† Of the Northern District of Illinois, sitting by designation.\n\f2 No. 17-3266\n\n SYKES, Circuit Judge. Under Wisconsin’s open-enrollment\nprogram, a public-school student can apply to transfer from\nhis resident school district to a nonresident district that has\nan available space for him. WIS. STAT. § 118.51. The program\ndistinguishes between “regular education and special educa-\ntion spaces.” Id. § 118.51(5)(a)1. If a student with a disability\nrequires special services, a nonresident district may deny the\nstudent’s transfer application if it lacks the services or space\nnecessary to meet those special needs. Id. § 118.51(5)(a)4.\n This suit concerns a group of disabled schoolchildren\nwhose transfer applications were denied because nonresi-\ndent districts determined that they could not meet the\nstudents’ special needs. The students’ parents, on their\nchildren’s behalf, sued the school districts and various state\nactors seeking injunctive, declaratory, and compensatory\nrelief under Title II of the Americans with Disabilities Act\n(“ADA”), 42 U.S.C. § 12132; section 504 of the Rehabilitation\nAct, 29 U.S.C. § 794(a); and the Equal Protection Clause,\nU.S. CONST. amend. XIV, § 1. They argued that the program\nunlawfully discriminates against disabled children because\nof their disabilities. The district judge concluded that the\nprogram did not violate federal law and entered summary\njudgment for the defendants.\n We affirm. Differential treatment of special-needs stu-\ndents doesn’t make the program unlawful. Federal law\n“forbids discrimination based on stereotypes about a handi-\ncap, but it does not forbid decisions based on the actual\nattributes of the handicap.” Anderson v. Univ. of Wis.,\n841 F.2d 737, 740 (7th Cir. 1988). The program makes deci-\nsions based on the actual needs of disabled students, so it\ncomplies with federal law. And even if we analyze the case\n\fNo. 17-3266 3\n\nas a request for an accommodation, the requested change\nwould fundamentally alter the program, and neither the\nADA nor the Rehabilitation Act require fundamental altera-\ntions.\n I. Background\n In keeping with the Individuals with Disabilities Educa-\ntion Act, 20 U.S.C. §§ 1400, 1412(a)(1), Wisconsin law guar-\nantees children with disabilities a “free appropriate public\neducation” and requires school districts to provide special-\neducation services according to a disabled child’s “individu-\nalized education program.” WIS. STAT. §§ 115.76(7),\n115.77(1m)(d). An individualized education program (“IEP”)\noutlines the “special education and related services” or\n“program modifications or supports” that the disabled\nstudent requires. Id. § 115.787(2)(c). Typically the school\ndistrict in which a special-needs student resides must satisfy\nthe IEP requirements unless the student transfers districts.\nId. §§ 115.76(10), 115.77.\n Wisconsin’s open-enrollment program permits such a\ntransfer. Id. § 118.51(2). The program operates on a calendar.\nIn January school districts determine how many excess\n“spaces” are available in both regular-education classrooms\nand special-education services. Id. § 118.51(5)(a)1. They can\nconsider factors like “class size limits, pupil-teacher ratios[,]\nor enrollment projections.” Id. § 118.51(5)(a)1, (5)(a)4.\nRegular-education spaces are typically determined by grade\nlevel, id. § 118.51(5)(a)1, while “special education spaces” are\ndetermined “by program or services,” WIS. ADMIN. CODE PI\n§ 36.06(5)(a).\n\f4 No. 17-3266\n\n Between February and April, interested students may\nsubmit transfer applications to up to three nonresident\ndistricts. WIS. STAT. § 118.51(3)(a)1. If an applicant has an IEP\nin place, the resident district will send a copy of the plan to\nthe nonresident district. Id. § 118.51(3)(a)1m. Beginning in\nMay nonresident districts determine which applications they\nwill accept by comparing available space to the needs of the\napplicants. Id. § 118.51(3)(a)2. For applicants with IEPs,\nnonresident districts determine whether they have the\ncapacity to meet each student’s special needs. Relevant\nfactors for this analysis include\n [w]hether the special education or related ser-\n vices described in the child’s individualized\n education program under [WIS. STAT.]\n § 115.787(2) are available in the nonresident\n school district or whether there is space availa-\n ble to provide the special education or related\n services identified in the child’s individualized\n education program, including any class size\n limits, pupil-teacher ratios[,] or enrollment pro-\n jections established by the nonresident school\n board.\nId. § 118.51(5)(a)4.\n Districts notify applicants of their acceptance or rejection\nin June. Id. § 118.51(3)(a)3. Most applications are accepted,\nincluding those submitted by students with IEPs. In 2013–\n2014, districts approved 3,718 out of 5,822 transfer applica-\ntions for students with IEPs, or roughly 64%. The same year\ndistricts approved 71% of transfer applications for students\nwithout IEPs.\n\fNo. 17-3266 5\n\n The Wisconsin Department of Public Instruction admin-\nisters the program at the state level. It promulgates the\nstandard application forms, which include a checkbox for\nwhether the student has an IEP. The Department’s guidance\nemphasizes that “[a] student may not be denied open en-\nrollment based on the student’s disability.” MARY JO\nCLEAVER, WIS. DEP’T OF PUB. INSTRUCTION, MAKING OPEN\nENROLLMENT SPECIAL EDUCATION DECISIONS NONRESIDENT\nSCHOOL DISTRICT 2 (2012). Rather, “[t]he application may\nonly be denied based on the availability of or space in the\nspecial education or related services required in the stu-\ndent’s IEP.” Id. Individual school districts administer the\nprogram at the local level. They calculate capacity and\ndetermine whether there is an available space for a given\napplicant. The Department has the power to review and\noverturn these determinations.\n The three plaintiffs—R.W., P.F., and S.B.—each applied\nto transfer to nonresident school districts under the open-\nenrollment program. R.W. and P.F. have autism while S.B.\nhas ADHD. R.W. and his twin brother applied to transfer\nfrom the Kenosha Unified School District to the Paris J1\nSchool District in 2012. Paris initially accepted both applica-\ntions but later revoked its acceptance of R.W.’s application\nbecause it lacked the capacity to meet his special needs.\n P.F. applied to transfer from the Racine School District to\nthe Muskego–Norway School District in 2014. Muskego–\nNorway had previously determined that it had 55 spaces for\nregular students but zero spaces for special-needs students.\nMoreover, under the law in effect at the time, Racine would\nbe responsible for reimbursing Muskego–Norway for the\nadditional costs required to educate P.F. in accordance with\n\f6 No. 17-3266\n\nhis IEP. So Racine declined to approve the transfer, and\nMuskego–Norway ultimately denied P.F.’s application.\n S.B. applied to transfer from the Milwaukee School Dis-\ntrict to the Shorewood School District in 2014. His applica-\ntion was initially accepted. But when Shorewood later\ndiscovered that S.B. had an IEP, it promptly revoked his\nacceptance under section 118.51(5)(a)4 and expelled him\nfrom the school.\n The three students, by their parents, filed suit against the\nState Superintendent of Public Instruction, the Wisconsin\nDepartment of Public Instruction, and the three school\ndistricts that rejected their applications: Paris J1, Muskego–\nNorway, and Shorewood. 1 The plaintiffs claimed that the\nprogram violates the ADA, the Rehabilitation Act, and the\nEqual Protection Clause. The parties filed cross-motions for\nsummary judgment, and the district judge entered summary\njudgment for the defendants on all claims except for R.W.’s\nclaim for injunctive relief against Paris. That claim was later\ndismissed, and the judge entered final judgment for the\ndefendants.\n II. Discussion\n The plaintiffs limit their appeal to their claims under the\nADA and the Rehabilitation Act; they do not seek review of\nthe judge’s ruling for the defendants on their equal-\nprotection claim. We review a summary judgment de novo.\nPain Ctr. of Se. Ind. LLC v. Origin Healthcare Sols. LLC,\n893 F.3d 454, 459 (7th Cir. 2018). Summary judgment is\n\n\n1Three other disabled children, by their parents, joined the suit below,\nbut they are not involved in this appeal.\n\fNo. 17-3266 7\n\nappropriate when “there is no genuine issue of material fact\nand the moving party is entitled to a judgment as a matter of\nlaw.” FED. R. CIV. P. 56(c).\n We first address a jurisdictional issue. S.B. now resides in\nShorewood, so he is entitled to enroll as a resident student.\nWe therefore dismiss as moot his claims for injunctive and\ndeclaratory relief against Shorewood. See CTL ex rel.\nTrebatoski v. Ashland Sch. Dist., 743 F.3d 524, 528 (7th Cir.\n2014). But his change in residence does not moot his claim\nfor damages.\n Both Title II of the ADA and section 504 of the Rehabilita-\ntion Act prohibit discrimination against disabled individu-\nals. For our purposes the statutes are “functionally\nidentical.” Wagoner v. Lemmon, 778 F.3d 586, 592 (7th Cir.\n2015). A claim under either statute has two basic elements:\n(1) the plaintiff must be a qualified individual with a disabil-\nity; and (2) the plaintiff must have been denied governmen-\ntal benefits because of his disability. See 42 U.S.C. § 12132;\n29 U.S.C. § 794(a).\n The plaintiffs do not contend that the State Superinten-\ndent, the Department, or any of the school districts inten-\ntionally deviated from the program in a discriminatory\nmanner. Rather, they claim that the program itself discrimi-\nnates on the basis of disability and that the defendants are\nliable for their role in administering it. The question before\nus, then, is whether the open-enrollment program, by its\nterms, violates federal antidiscrimination law.\n It does not. The plaintiffs argue that the program dis-\ncriminates against disabled students because it imposes\ncriteria that apply only to students with special needs. But\n\f8 No. 17-3266\n\ntheir argument rests on mischaracterizations of federal law\nand the program itself. Under federal law a program is not\ndiscriminatory just because it takes an individual’s disability\ninto account. “[A]lthough a disability is not a permissible\nground for assuming an inability to function in a particular\ncontext, the disability is not thrown out when considering if\nthe person is qualified … .” Knapp v. Nw. Univ., 101 F.3d 473,\n482 (7th Cir. 1996). Put another way, federal law “forbids\ndiscrimination based on stereotypes about a handicap, but it\ndoes not forbid decisions based on the actual attributes of\nthe handicap.” Anderson, 841 F.2d at 740.\n Under the open-enrollment program, nonresident dis-\ntricts cannot turn away applicants merely because they are\ndisabled. Instead the program allows nonresident districts to\nrealistically assess whether they have the capacity and\nresources to comply with a transfer student’s IEP. Because\ndecisions are based on a student’s special needs, the pro-\ngram hinges on “the actual attributes of the handicap” rather\nthan mere “stereotypes.” Id. It’s far more limited than a true\nopen-enrollment program. It seeks to maximize school\nchoice but only to the extent that excess capacity exists. Any\nstudent is permitted to cross-enroll if the nonresident district\nhas excess capacity. No student has the right to cross-enroll\nif the nonresident district does not.\n For the program to work, school districts must evaluate\ntheir existing space and resources and the needs of the\ntransfer applicants. Not all students are the same. A sixth\ngrader requires different services than a fourth grader, and\nthe program allows districts to categorize their capacity\naccordingly. It wouldn’t follow that the program discrimi-\nnates against fourth graders if a nonresident school district\n\fNo. 17-3266 9\n\nonly has excess capacity in the sixth grade. The same is true\nof students with special needs. If a student with an IEP\nrequires special resources, it doesn’t make any more sense to\ntreat his needs as identical to those of his peers than it would\nto treat fourth graders the same as sixth graders.\n Properly framing the program leads to an easy resolution\nof this case. To be a “qualified individual with a disability,”\na child must meet the program’s “essential eligibility re-\nquirements.” 42 U.S.C. § 12131(2). The program only permits\napplicants to transfer if the nonresident district has excess\ncapacity. If a nonresident district lacks the capacity to serve a\ndisabled applicant’s needs, the applicant does not meet the\nprogram’s essential requirements. Neither has the applicant\nbeen denied admission “by reason of [his] disability.” Id.\n§ 12132. As we’ve explained, the program considers the\ncapacity of the nonresident district to meet the requirements\noutlined in the disabled student’s IEP rather than the mere\nfact of a disability.\n Even if we analyze this case as a request for an accom-\nmodation, the plaintiffs still aren’t entitled to relief. Neither\nthe ADA nor the Rehabilitation Act requires modifications\nthat “would fundamentally alter the nature of the service,\nprogram, or activity.” 28 C.F.R. § 35.130(b)(7)(i); see also\nTennessee v. Lane, 541 U.S. 509, 532 (2004). The requirement\nthat nonresident school districts have the excess capacity to\nmeet the needs of transferring students is a fundamental\ncomponent of this program. Demanding that nonresident\nschool districts accept students regardless of their existing\ncapacity to meet student needs would upend this key fea-\nture. Federal law does not require such an overhaul.\n AFFIRMED.\n[END_CASE]", "role": "user" } ]
4,583,605		Charlotte Robinson v. Davol, Inc.	2019-01-22	17-2068	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before SYKES and BARRETT, Circuit Judges, and GRIESBACH, Chief District Judge.", "parties": "", "opinions": [{"author": "Diane S. Sykes", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-2068\nCHARLOTTE ROBINSON and\nBOBBY DON BOWERSOCK as co-personal\nrepresentatives of the Estate of\nGeorgia J. Bowersock, deceased, and\nMARK BOWERSOCK, individually,\n Plaintiffs-Appellants,\n\n v.\n\nDAVOL INC. and C.R. BARD, INC.,\n Defendants-Appellees.\n ____________________\n\n Appeal from the United States District Court for the\n Southern District of Indiana, Indianapolis Division.\n No. 1:08-cv-01313-LJM-TAB — Larry J. McKinney, Judge.\n ____________________\n\n ARGUED FEBRUARY 13, 2018 — DECIDED JANUARY 22, 2019\n ____________________\n\n Before SYKES and BARRETT, Circuit Judges, and GRIESBACH,\nChief District Judge. ∗\n\n\n\n∗ Of the Eastern District of Wisconsin, sitting by designation.\n\f2 No. 17-2068\n\n SYKES, Circuit Judge. C.R. Bard, Inc., manufactures a sur-\ngical mesh patch used to repair hernias by implantation. The\npatch consists of two pieces of mesh that surround a flexible\nplastic ring. During a hernia repair, the patch is folded to fit\nthrough a small incision, then the plastic ring springs back\ninto its original shape and flattens the mesh against the\nabdominal wall.\n Bard recalled several versions of the patch in late 2005\nand early 2006 following reports that the plastic ring was\ndefective. Sometimes the ring broke, exposing a sharp edge\nthat could perforate the patient’s intestines. Other times the\nring caused the patch to bend and warp, exposing the patch’s\nadhesive to a patient’s viscera.\n Prior to the recall, Georgia Bowersock underwent sur-\ngery to repair a hernia, and her surgeon implanted a Bard\npatch. Roughly one year later, on October 31, 2006, she died\nof complications arising from an abdominal-wall abscess.\nHer estate and family members sued Bard and Davol Inc.,\nthe patent holder for the patch, alleging that a defect in the\npatch caused her death. To establish medical causation, the\nplaintiffs retained three experts to opine on the defect and\nthe likely cause of Mrs. Bowersock’s death.\n But the experts had trouble establishing causation. Un-\nlike defective patches in other injured patients,\nMrs. Bowersock’s patch did not adhere to her bowel or\nperforate her organs with a broken, sharp edge. One expert\ntried to present a new theory of causation: the patch had\n“buckled,” forming a stiff edge that rubbed against and\nimperceptibly perforated her internal organs.\n\fNo. 17-2068 3\n\n The defendants moved to exclude the expert testimony.\nThe judge granted the motion, finding that the “buckling”\ntheory was not sufficiently reliable. Lacking expert testimo-\nny to establish causation, the plaintiffs could not prove their\ncase, and the judge entered summary judgment for Bard and\nDavol.\n We affirm. The novel theory of causation was not peer\nreviewed, professionally presented, consistent with\nMrs. Bowersock’s medical records or autopsy, or substantiat-\ned by other cases. The judge therefore did not abuse his\ndiscretion in excluding the expert testimony. Summary\njudgment for the defendants necessarily followed.\n I. Background\n The Composix® Kugel Patch is a prescription medical\ndevice designed to repair hernias. Bard manufactures the\npatch and Davol owns the patent. (We refer to them collec-\ntively as “Bard.”) The patch consists of two layers of mesh\nthat surround one or two flexible plastic rings called\nmemory rings. The top layer is made of polypropylene; it\nadheres to the abdominal wall under the hernia and facili-\ntates healing. The bottom layer is made of smooth expanded\npolytetrafluorethylene; it faces the bowel to prevent the\npatch from attaching to the viscera. To implant the patch, a\nphysician folds the device and then inserts it into the patient\nvia a small incision. After insertion the memory ring springs\nback and flattens the patch against the abdominal wall. The\npatch remains in the body after the hernia heals.\n The patch hit the market in 2001. Users soon began re-\nporting problems with the plastic ring. Sometimes it would\naltogether fail. Other times the ring would experience “buck-\n\f4 No. 17-2068\n\nling”—that is, the mesh components of the patch would\ncontract, causing the ring to resist and bend, kink, break, or\nbuckle. Although the patch came with instructions for use\nthat contained user warnings, none of the warnings men-\ntioned any of these problems with the plastic ring. On\nDecember 22, 2005, Bard recalled all extra-large models.\nSeveral months later Bard expanded the recall to include\nother models.\n On May 25, 2005, Mrs. Bowersock sought medical treat-\nment for an abdominal-wall hernia. On July 22 Dr. Mark O.\nLynch performed surgery and implanted a Bard patch, using\na model that was included in the second recall. Dr. Lynch\ntestified that he would not have implanted the patch if he\nhad known about the defective memory rings.\n On October 4, 2006, Mrs. Bowersock went to the emer-\ngency room with an abdominal-wall abscess. The hospital\ncultured the abscess, and the lab results returned positive for\nstaphylococcus aureus. Doctors administered antibiotics,\ndrained the abscess, and released her from the hospital. She\nreturned several days later with a large wound infection.\nWhile hospitalized she suffered a cardiac arrest. She was\nresuscitated and placed on a ventilator. The hospital took a\nsecond culture that indicated the presence of staphylococcus\nepidermidis and enterococcus faecalis, or fecal bacteria. A\nthird culture returned positive for pseudomonas aeruginosa\nand yeast. Her condition deteriorated until her death on\nOctober 31, 2006.\n Dr. Roland Kohr, the county coroner, performed an au-\ntopsy that same day and determined that pneumonia and\ncomplications of that disease ultimately caused\nMrs. Bowersock’s death. In his report Dr. Kohr noted\n\fNo. 17-2068 5\n\n“abdominal adhesions” and an “abdominal wall fistula.” He\nalso noted that the “small bowel and colon [were] intact\nwithout perforation, diverticula or palpable tumors.”\nDr. Kohr later exhumed Mrs. Bowersock’s body and re-\ntrieved the implanted patch for further study.\n Bobby and Mark Bowersock (Mrs. Bowersock’s sons) and\nCharlotte Robinson (her sister) sued Bard in federal court\nraising claims of negligence, failure to warn, breach of\nimplied warranty, fraud, and intentional infliction of emo-\ntional distress. They also asserted a statutory claim for\nviolation of the Indiana Deceptive Consumer Sales Act, IND.\nCODE § 24-5-5. Bobby and Charlotte are co-representatives of\nMrs. Bowersock’s estate; Mark also asserted an individual\nclaim under the Indiana Wrongful Death Act, id. § 34-23-1-1.\nAll of the claims rested on the same essential allegations: the\npatch implanted in Mrs. Bowersock was defective and\nultimately caused her death. The district court consolidated\nthe claims under the Indiana Products Liability Act, id.\n§§ 34-20-1-1 et seq., which “govern[s] all product liability\nactions, whether the theory of liability is negligence or strict\nliability in tort,” Dague v. Piper Aircraft Corp., 418 N.E.2d 207,\n212 (Ind. 1981).\n The plaintiffs retained Dr. Stephen Ferzoco to opine on\nthe cause of death. Dr. Ferzoco has experience treating\npatients who had problems with the patches. He also has\ntestified in cases where the memory ring broke or the poly-\npropylene side of the patch adhered to the intestines. After\nexamining the patch that was retrieved from\nMrs. Bowersock, however, Dr. Ferzoco conceded that neither\nof those problems had occurred here. He instead developed\na new theory to account for her injury: the ring had buckled\n\f6 No. 17-2068\n\nbut stayed intact, and the raised portion of the mesh\n“rubb[ed] up against the bowel causing a fistula or break\nand then seal[ed] up prior to explantation or discovery of the\nmesh in the bowel.” The parties and the district judge re-\nferred to this as the “nidus” theory (meaning the location or\nfocus of an infection), so we do the same; here it describes\nthe location where Dr. Ferzoco theorized that the buckled\nring rubbed against the bowel. Dr. Ferzoco also testified that\nhe could rule out several other possible causes of death,\nincluding cross-contamination of fecal matter, fecal matter\nentering through the skin, obesity, diabetes, and chronic\nobstructive pulmonary disease.\n Dr. Ferzoco’s theory was novel: he had never before pre-\nsented it in a formal or professional setting and could not\nidentify published medical literature discussing it. Though\nhe claimed to have seen this particular malfunction occur in\nother patients, he declined to identify the patients or pro-\nduce their medical records. Crucially, he admitted that there\nwas no evidence in the medical records or autopsy report of\nbowel erosion or perforation.\n The plaintiffs also retained Dr. William Hyman, a profes-\nsor of biomedical engineering. He opined that the memory\nring’s design was inherently dangerous, that Bard failed to\nadequately test the patch, and that feasible alternative\ndesigns were available. He also speculated that based on the\ndefective design and Dr. Ferzoco’s medical testimony, the\nring buckling likely caused the bowel injury. He identified\ntwo important limitations in his testimony, however. First,\nhe admitted that he never examined or viewed images of\nMrs. Bowersock’s patch. Second, he is “not a microbiologist\n\fNo. 17-2068 7\n\nand [was] not offering an independent opinion on the mi-\ncrobiology of her infection.”\n Finally, the plaintiffs retained Dr. Kohr, the coroner. He\nreiterated in his deposition that the autopsy did not reveal\nany visible breaches of the small bowel or colon. He clari-\nfied, however, that “there could have been superficial\nbreaches scarred over with additional inflammation” and\nthat “extensive adhesions in the suprapubic area [and] lower\nabdomen” suggested the “possibility” of a breach. He also\ntestified that at the time of the autopsy, he wasn’t aware of\nthe problems with the patch or Bard’s recalls. Dr. Kohr\nconcluded that there was a “reasonable medical probability”\nthat the patch caused Mrs. Bowersock’s death.\n Bard moved to exclude the causation opinions offered by\neach of these experts, arguing that (1) Dr. Ferzoco’s nidus\ntheory was not reliable; (2) Dr. Hyman’s opinion was un-\nsupported by the medical records; and (3) the plaintiffs\nfailed to timely disclose Dr. Kohr as an expert under Rule 26\nof the Federal Rules of Civil Procedure. Bard also sought\nsummary judgment, arguing the plaintiffs could not prove\nthat the patch or its warnings were defective or caused\nMrs. Bowersock’s death.\n The judge granted the motion to exclude the experts. He\nruled that Dr. Ferzoco’s nidus theory failed to meet the\nreliability threshold under Rule 702 of the Federal Rules of\nEvidence. He also held that Dr. Hyman was not qualified to\noffer an opinion about medical causation and that the plain-\ntiffs’ failure to disclose Dr. Kohr as an expert precluded\nthem from calling him to testify in that capacity. That left the\nplaintiffs without a causation expert—a requirement to\n\f8 No. 17-2068\n\nprove the element of medical causation under Indiana law—\nso the judge entered summary judgment for Bard.\n II. Discussion\n We normally review a summary judgment de novo, but\nour review is “slightly more nuanced” when summary\njudgment follows from a decision to exclude expert testimo-\nny. Higgins v. Koch Dev. Corp., 794 F.3d 697, 701 (7th Cir.\n2015). Our first question is whether the judge properly\napplied the Daubert framework for evaluating the admissibil-\nity of expert testimony. Id. (citing Daubert v. Merrell Dow\nPharm., Inc., 509 U.S. 579 (1993)). We then review for abuse of\ndiscretion the judge’s decision to exclude the expert witness.\nId.\n The plaintiffs must establish causation to prove a viola-\ntion of the Indiana Products Liability Act. IND. CODE § 34-20-\n1-1. Under Indiana law “questions of medical causation of a\nparticular injury are questions of science necessarily de-\npendent on the testimony of physicians and surgeons\nlearned in such matters.” Higgins, 794 F.3d at 703 (quoting\nArmstrong v. Cerestar USA, Inc., 775 N.E.2d 360, 366 (Ind. Ct.\nApp. 2002)). “[W]hen there is no obvious origin to an injury\nand it has multiple potential etiologies, expert testimony is\nnecessary to establish causation.” Id. (quotation marks\nomitted).\n The key expert testimony is that of Dr. Ferzoco; without\nit the plaintiffs cannot establish medical causation. They\nconcede as much. They do not challenge the exclusion of\nDr. Kohr as an expert based on their procedural violation,\nand they acknowledge that Dr. Hyman’s opinion “does not,\nin and of itself, establish medical causation.” We therefore\n\fNo. 17-2068 9\n\nfocus our attention on the exclusion of Dr. Ferzoco’s testi-\nmony under Rule 702.\n An expert’s opinion is permitted if:\n (a) the expert’s scientific, technical, or other\n specialized knowledge will help the trier of\n fact to understand the evidence or to determine\n a fact in issue;\n (b) the testimony is based on sufficient facts or\n data;\n (c) the testimony is the product of reliable\n principles and methods; and\n (d) the expert has reliably applied the princi-\n ples and methods to the facts of the case.\nFED. R. EVID. 702.\n The familiar Daubert two-step framework applies to de-\ntermine whether the requirements of Rule 702 have been\nsatisfied. 509 U.S. at 593–94. The proponent of the expert\ntestimony must first establish that “the proposed witness\nwould testify to valid scientific, technical, or other special-\nized knowledge.” Ammons v. Aramark Unif. Servs., Inc.,\n368 F.3d 809, 816 (7th Cir. 2004) (internal quotation marks\nomitted). The proponent must then show that the expert\ntestimony will assist the trier of fact. Id. At step one the\njudge evaluates whether the expert’s theory has been\n“(1) tested, (2) subjected to peer review and publication,\n(3) analyzed for known or potential error rate, and/or is\n(4) generally accepted within the specific scientific field.”\nLapsley v. Xtek, Inc., 689 F.3d 802, 810 (7th Cir. 2012). At step\ntwo the judge evaluates “whether the proposed scientific\n\f10 No. 17-2068\n\ntestimony fits the issue to which the expert is testifying.”\nUnited States v. Hall, 165 F.3d 1095, 1102 (7th Cir. 1999).\n The judge properly applied the Rule 702 and Daubert\nstandards in addressing Bard’s motion. He summarized\nDr. Ferzoco’s theory that the patch buckled and rubbed\nagainst Mrs. Bowersock’s colon, causing fecal matter to\nescape through an opening that either closed prior to dis-\ncovery or was not visible to the naked eye. He then ex-\nplained why this novel theory of causation wasn’t reliable.\nTo begin, the theory wasn’t tested, subjected to peer review,\nor described in medical literature. See Lapsley, 689 F.3d at\n810. Moreover, the phenomena that Dr. Ferzoco described\nwere not found in Mrs. Bowersock’s medical records or\nautopsy report. Last, the judge discounted Dr. Ferzoco’s\ncontention that he had previously treated patients injured in\nthis manner, explaining that the claim was not substantiated\nwith identified patients or records. See Olinger v. U.S. Golf\nAss’n, 52 F. Supp. 2d 947, 950 (N.D. Ind. 1999) (“The court\ncannot evaluate the reliability of the undisclosed methodol-\nogy or of the principles that support the methodology.”).\n On appeal the plaintiffs contend that Dr. Ferzoco’s meth-\nod was the equivalent of a differential diagnosis, which is an\n“accepted and valid methodology.” Myers v. Ill. Cent. R.R.\nCo., 629 F.3d 639, 644 (7th Cir. 2010). Put in simple terms, a\ndifferential diagnosis “provides a framework in which all\nreasonable hypotheses are ‘ruled in’ as possible causes of a\nmedical problem and some of these possible causes are then\n‘ruled out’ to the extent scientific evidence makes it appro-\npriate to do so.” Ervin v. Johnson & Johnson, Inc., 492 F.3d 901,\n903 (7th Cir. 2007). The plaintiffs didn’t raise this argument\nat summary judgment, however. They first used the term\n\fNo. 17-2068 11\n\n“differential diagnosis” in their motion to alter or amend the\njudgment. That’s too late to preserve an argument for ap-\npeal. Cf. Green v. Whiteco Indus., Inc., 17 F.3d 199, 201 n.4 (7th\nCir. 1994) (“[R]aising [an] argument for the first time in the\nmotion for reconsideration is not adequate to preserve the\nissue for appeal and definitively waives it.”).\n The plaintiffs insist that they presented the argument be-\nlow, just without using the term “differential diagnosis.”\nThey point to their argument at summary judgment that\nDr. Ferzoco’s opinions were “founded on reliable methods,\nexperience[,] and data.” That’s far too general a statement to\nsituate their expert’s opinion in the specific domain of\ndifferential-diagnosis methodology. See Fednav Int’l Ltd. v.\nCont’l Ins. Co., 624 F.3d 834, 841 (7th Cir. 2010) (explaining\nthat the failure to present a specific argument below results\nin waiver, even if the argument “may have been before the\ndistrict court in more general terms”).\n Even if preserved, the argument fails on the merits.\nThough differential diagnosis is widely accepted as a general\nmatter, an expert’s decision to “rule in” or “rule out” poten-\ntial causes must itself be “scientifically valid.” Ervin, 492 F.3d\nat 904. In other words, Dr. Ferzoco needed to establish the\nreliability of his nidus theory in order to “rule in” the buck-\nling as a potential cause of Mrs. Bowersock’s death. As\nwe’ve noted, the judge identified several reasons why\nDr. Ferzoco’s nidus theory is not sufficiently reliable.\n The plaintiffs also argue that a scientific theory should\nnot be rejected solely because it lacks peer review. See Smith\nv. Ford Motor Co., 215 F.3d 713, 720 (7th Cir. 2000). But the\njudge gave multiple reasons for his decision, including the\nlack of corroborating evidence in Mrs. Bowersock’s medical\n\f12 No. 17-2068\n\nrecords and autopsy report. Along the same lines, the plain-\ntiffs repeatedly assert that the lack of scientific literature\nsupporting the expert’s theory goes to the weight, not the\nadmissibility, of his testimony. That’s not the correct stand-\nard. Rule 702 and Daubert require the judge to act as a vigor-\nous gatekeeper to ensure the reliability of expert testimony.\nSee Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149 (1999).\n In sum, the plaintiffs cannot prove medical causation\nwithout Dr. Ferzoco’s testimony. The record reflects that the\njudge properly applied the Daubert framework and soundly\nexercised his discretion to exclude it. It follows that Bard\nwas entitled to summary judgment.\n AFFIRMED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4360858/", "author_raw": "Diane S. Sykes"}]}	SYKES	BARRETT	GRIESBACH	1		{"SYKES": ", Circuit", "BARRETT": ", Circuit", "GRIESBACH": ", Chief District"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4583605/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Charlotte Robinson v. Davol, Inc.\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-22\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-2068\nCHARLOTTE ROBINSON and\nBOBBY DON BOWERSOCK as co-personal\nrepresentatives of the Estate of\nGeorgia J. Bowersock, deceased, and\nMARK BOWERSOCK, individually,\n Plaintiffs-Appellants,\n\n v.\n\nDAVOL INC. and C.R. BARD, INC.,\n Defendants-Appellees.\n ____________________\n\n Appeal from the United States District Court for the\n Southern District of Indiana, Indianapolis Division.\n No. 1:08-cv-01313-LJM-TAB — Larry J. McKinney, Judge.\n ____________________\n\n ARGUED FEBRUARY 13, 2018 — DECIDED JANUARY 22, 2019\n ____________________\n\n Before SYKES and BARRETT, Circuit Judges, and GRIESBACH,\nChief District Judge. ∗\n\n\n\n∗ Of the Eastern District of Wisconsin, sitting by designation.\n\f2 No. 17-2068\n\n SYKES, Circuit Judge. C.R. Bard, Inc., manufactures a sur-\ngical mesh patch used to repair hernias by implantation. The\npatch consists of two pieces of mesh that surround a flexible\nplastic ring. During a hernia repair, the patch is folded to fit\nthrough a small incision, then the plastic ring springs back\ninto its original shape and flattens the mesh against the\nabdominal wall.\n Bard recalled several versions of the patch in late 2005\nand early 2006 following reports that the plastic ring was\ndefective. Sometimes the ring broke, exposing a sharp edge\nthat could perforate the patient’s intestines. Other times the\nring caused the patch to bend and warp, exposing the patch’s\nadhesive to a patient’s viscera.\n Prior to the recall, Georgia Bowersock underwent sur-\ngery to repair a hernia, and her surgeon implanted a Bard\npatch. Roughly one year later, on October 31, 2006, she died\nof complications arising from an abdominal-wall abscess.\nHer estate and family members sued Bard and Davol Inc.,\nthe patent holder for the patch, alleging that a defect in the\npatch caused her death. To establish medical causation, the\nplaintiffs retained three experts to opine on the defect and\nthe likely cause of Mrs. Bowersock’s death.\n But the experts had trouble establishing causation. Un-\nlike defective patches in other injured patients,\nMrs. Bowersock’s patch did not adhere to her bowel or\nperforate her organs with a broken, sharp edge. One expert\ntried to present a new theory of causation: the patch had\n“buckled,” forming a stiff edge that rubbed against and\nimperceptibly perforated her internal organs.\n\fNo. 17-2068 3\n\n The defendants moved to exclude the expert testimony.\nThe judge granted the motion, finding that the “buckling”\ntheory was not sufficiently reliable. Lacking expert testimo-\nny to establish causation, the plaintiffs could not prove their\ncase, and the judge entered summary judgment for Bard and\nDavol.\n We affirm. The novel theory of causation was not peer\nreviewed, professionally presented, consistent with\nMrs. Bowersock’s medical records or autopsy, or substantiat-\ned by other cases. The judge therefore did not abuse his\ndiscretion in excluding the expert testimony. Summary\njudgment for the defendants necessarily followed.\n I. Background\n The Composix® Kugel Patch is a prescription medical\ndevice designed to repair hernias. Bard manufactures the\npatch and Davol owns the patent. (We refer to them collec-\ntively as “Bard.”) The patch consists of two layers of mesh\nthat surround one or two flexible plastic rings called\nmemory rings. The top layer is made of polypropylene; it\nadheres to the abdominal wall under the hernia and facili-\ntates healing. The bottom layer is made of smooth expanded\npolytetrafluorethylene; it faces the bowel to prevent the\npatch from attaching to the viscera. To implant the patch, a\nphysician folds the device and then inserts it into the patient\nvia a small incision. After insertion the memory ring springs\nback and flattens the patch against the abdominal wall. The\npatch remains in the body after the hernia heals.\n The patch hit the market in 2001. Users soon began re-\nporting problems with the plastic ring. Sometimes it would\naltogether fail. Other times the ring would experience “buck-\n\f4 No. 17-2068\n\nling”—that is, the mesh components of the patch would\ncontract, causing the ring to resist and bend, kink, break, or\nbuckle. Although the patch came with instructions for use\nthat contained user warnings, none of the warnings men-\ntioned any of these problems with the plastic ring. On\nDecember 22, 2005, Bard recalled all extra-large models.\nSeveral months later Bard expanded the recall to include\nother models.\n On May 25, 2005, Mrs. Bowersock sought medical treat-\nment for an abdominal-wall hernia. On July 22 Dr. Mark O.\nLynch performed surgery and implanted a Bard patch, using\na model that was included in the second recall. Dr. Lynch\ntestified that he would not have implanted the patch if he\nhad known about the defective memory rings.\n On October 4, 2006, Mrs. Bowersock went to the emer-\ngency room with an abdominal-wall abscess. The hospital\ncultured the abscess, and the lab results returned positive for\nstaphylococcus aureus. Doctors administered antibiotics,\ndrained the abscess, and released her from the hospital. She\nreturned several days later with a large wound infection.\nWhile hospitalized she suffered a cardiac arrest. She was\nresuscitated and placed on a ventilator. The hospital took a\nsecond culture that indicated the presence of staphylococcus\nepidermidis and enterococcus faecalis, or fecal bacteria. A\nthird culture returned positive for pseudomonas aeruginosa\nand yeast. Her condition deteriorated until her death on\nOctober 31, 2006.\n Dr. Roland Kohr, the county coroner, performed an au-\ntopsy that same day and determined that pneumonia and\ncomplications of that disease ultimately caused\nMrs. Bowersock’s death. In his report Dr. Kohr noted\n\fNo. 17-2068 5\n\n“abdominal adhesions” and an “abdominal wall fistula.” He\nalso noted that the “small bowel and colon [were] intact\nwithout perforation, diverticula or palpable tumors.”\nDr. Kohr later exhumed Mrs. Bowersock’s body and re-\ntrieved the implanted patch for further study.\n Bobby and Mark Bowersock (Mrs. Bowersock’s sons) and\nCharlotte Robinson (her sister) sued Bard in federal court\nraising claims of negligence, failure to warn, breach of\nimplied warranty, fraud, and intentional infliction of emo-\ntional distress. They also asserted a statutory claim for\nviolation of the Indiana Deceptive Consumer Sales Act, IND.\nCODE § 24-5-5. Bobby and Charlotte are co-representatives of\nMrs. Bowersock’s estate; Mark also asserted an individual\nclaim under the Indiana Wrongful Death Act, id. § 34-23-1-1.\nAll of the claims rested on the same essential allegations: the\npatch implanted in Mrs. Bowersock was defective and\nultimately caused her death. The district court consolidated\nthe claims under the Indiana Products Liability Act, id.\n§§ 34-20-1-1 et seq., which “govern[s] all product liability\nactions, whether the theory of liability is negligence or strict\nliability in tort,” Dague v. Piper Aircraft Corp., 418 N.E.2d 207,\n212 (Ind. 1981).\n The plaintiffs retained Dr. Stephen Ferzoco to opine on\nthe cause of death. Dr. Ferzoco has experience treating\npatients who had problems with the patches. He also has\ntestified in cases where the memory ring broke or the poly-\npropylene side of the patch adhered to the intestines. After\nexamining the patch that was retrieved from\nMrs. Bowersock, however, Dr. Ferzoco conceded that neither\nof those problems had occurred here. He instead developed\na new theory to account for her injury: the ring had buckled\n\f6 No. 17-2068\n\nbut stayed intact, and the raised portion of the mesh\n“rubb[ed] up against the bowel causing a fistula or break\nand then seal[ed] up prior to explantation or discovery of the\nmesh in the bowel.” The parties and the district judge re-\nferred to this as the “nidus” theory (meaning the location or\nfocus of an infection), so we do the same; here it describes\nthe location where Dr. Ferzoco theorized that the buckled\nring rubbed against the bowel. Dr. Ferzoco also testified that\nhe could rule out several other possible causes of death,\nincluding cross-contamination of fecal matter, fecal matter\nentering through the skin, obesity, diabetes, and chronic\nobstructive pulmonary disease.\n Dr. Ferzoco’s theory was novel: he had never before pre-\nsented it in a formal or professional setting and could not\nidentify published medical literature discussing it. Though\nhe claimed to have seen this particular malfunction occur in\nother patients, he declined to identify the patients or pro-\nduce their medical records. Crucially, he admitted that there\nwas no evidence in the medical records or autopsy report of\nbowel erosion or perforation.\n The plaintiffs also retained Dr. William Hyman, a profes-\nsor of biomedical engineering. He opined that the memory\nring’s design was inherently dangerous, that Bard failed to\nadequately test the patch, and that feasible alternative\ndesigns were available. He also speculated that based on the\ndefective design and Dr. Ferzoco’s medical testimony, the\nring buckling likely caused the bowel injury. He identified\ntwo important limitations in his testimony, however. First,\nhe admitted that he never examined or viewed images of\nMrs. Bowersock’s patch. Second, he is “not a microbiologist\n\fNo. 17-2068 7\n\nand [was] not offering an independent opinion on the mi-\ncrobiology of her infection.”\n Finally, the plaintiffs retained Dr. Kohr, the coroner. He\nreiterated in his deposition that the autopsy did not reveal\nany visible breaches of the small bowel or colon. He clari-\nfied, however, that “there could have been superficial\nbreaches scarred over with additional inflammation” and\nthat “extensive adhesions in the suprapubic area [and] lower\nabdomen” suggested the “possibility” of a breach. He also\ntestified that at the time of the autopsy, he wasn’t aware of\nthe problems with the patch or Bard’s recalls. Dr. Kohr\nconcluded that there was a “reasonable medical probability”\nthat the patch caused Mrs. Bowersock’s death.\n Bard moved to exclude the causation opinions offered by\neach of these experts, arguing that (1) Dr. Ferzoco’s nidus\ntheory was not reliable; (2) Dr. Hyman’s opinion was un-\nsupported by the medical records; and (3) the plaintiffs\nfailed to timely disclose Dr. Kohr as an expert under Rule 26\nof the Federal Rules of Civil Procedure. Bard also sought\nsummary judgment, arguing the plaintiffs could not prove\nthat the patch or its warnings were defective or caused\nMrs. Bowersock’s death.\n The judge granted the motion to exclude the experts. He\nruled that Dr. Ferzoco’s nidus theory failed to meet the\nreliability threshold under Rule 702 of the Federal Rules of\nEvidence. He also held that Dr. Hyman was not qualified to\noffer an opinion about medical causation and that the plain-\ntiffs’ failure to disclose Dr. Kohr as an expert precluded\nthem from calling him to testify in that capacity. That left the\nplaintiffs without a causation expert—a requirement to\n\f8 No. 17-2068\n\nprove the element of medical causation under Indiana law—\nso the judge entered summary judgment for Bard.\n II. Discussion\n We normally review a summary judgment de novo, but\nour review is “slightly more nuanced” when summary\njudgment follows from a decision to exclude expert testimo-\nny. Higgins v. Koch Dev. Corp., 794 F.3d 697, 701 (7th Cir.\n2015). Our first question is whether the judge properly\napplied the Daubert framework for evaluating the admissibil-\nity of expert testimony. Id. (citing Daubert v. Merrell Dow\nPharm., Inc., 509 U.S. 579 (1993)). We then review for abuse of\ndiscretion the judge’s decision to exclude the expert witness.\nId.\n The plaintiffs must establish causation to prove a viola-\ntion of the Indiana Products Liability Act. IND. CODE § 34-20-\n1-1. Under Indiana law “questions of medical causation of a\nparticular injury are questions of science necessarily de-\npendent on the testimony of physicians and surgeons\nlearned in such matters.” Higgins, 794 F.3d at 703 (quoting\nArmstrong v. Cerestar USA, Inc., 775 N.E.2d 360, 366 (Ind. Ct.\nApp. 2002)). “[W]hen there is no obvious origin to an injury\nand it has multiple potential etiologies, expert testimony is\nnecessary to establish causation.” Id. (quotation marks\nomitted).\n The key expert testimony is that of Dr. Ferzoco; without\nit the plaintiffs cannot establish medical causation. They\nconcede as much. They do not challenge the exclusion of\nDr. Kohr as an expert based on their procedural violation,\nand they acknowledge that Dr. Hyman’s opinion “does not,\nin and of itself, establish medical causation.” We therefore\n\fNo. 17-2068 9\n\nfocus our attention on the exclusion of Dr. Ferzoco’s testi-\nmony under Rule 702.\n An expert’s opinion is permitted if:\n (a) the expert’s scientific, technical, or other\n specialized knowledge will help the trier of\n fact to understand the evidence or to determine\n a fact in issue;\n (b) the testimony is based on sufficient facts or\n data;\n (c) the testimony is the product of reliable\n principles and methods; and\n (d) the expert has reliably applied the princi-\n ples and methods to the facts of the case.\nFED. R. EVID. 702.\n The familiar Daubert two-step framework applies to de-\ntermine whether the requirements of Rule 702 have been\nsatisfied. 509 U.S. at 593–94. The proponent of the expert\ntestimony must first establish that “the proposed witness\nwould testify to valid scientific, technical, or other special-\nized knowledge.” Ammons v. Aramark Unif. Servs., Inc.,\n368 F.3d 809, 816 (7th Cir. 2004) (internal quotation marks\nomitted). The proponent must then show that the expert\ntestimony will assist the trier of fact. Id. At step one the\njudge evaluates whether the expert’s theory has been\n“(1) tested, (2) subjected to peer review and publication,\n(3) analyzed for known or potential error rate, and/or is\n(4) generally accepted within the specific scientific field.”\nLapsley v. Xtek, Inc., 689 F.3d 802, 810 (7th Cir. 2012). At step\ntwo the judge evaluates “whether the proposed scientific\n\f10 No. 17-2068\n\ntestimony fits the issue to which the expert is testifying.”\nUnited States v. Hall, 165 F.3d 1095, 1102 (7th Cir. 1999).\n The judge properly applied the Rule 702 and Daubert\nstandards in addressing Bard’s motion. He summarized\nDr. Ferzoco’s theory that the patch buckled and rubbed\nagainst Mrs. Bowersock’s colon, causing fecal matter to\nescape through an opening that either closed prior to dis-\ncovery or was not visible to the naked eye. He then ex-\nplained why this novel theory of causation wasn’t reliable.\nTo begin, the theory wasn’t tested, subjected to peer review,\nor described in medical literature. See Lapsley, 689 F.3d at\n810. Moreover, the phenomena that Dr. Ferzoco described\nwere not found in Mrs. Bowersock’s medical records or\nautopsy report. Last, the judge discounted Dr. Ferzoco’s\ncontention that he had previously treated patients injured in\nthis manner, explaining that the claim was not substantiated\nwith identified patients or records. See Olinger v. U.S. Golf\nAss’n, 52 F. Supp. 2d 947, 950 (N.D. Ind. 1999) (“The court\ncannot evaluate the reliability of the undisclosed methodol-\nogy or of the principles that support the methodology.”).\n On appeal the plaintiffs contend that Dr. Ferzoco’s meth-\nod was the equivalent of a differential diagnosis, which is an\n“accepted and valid methodology.” Myers v. Ill. Cent. R.R.\nCo., 629 F.3d 639, 644 (7th Cir. 2010). Put in simple terms, a\ndifferential diagnosis “provides a framework in which all\nreasonable hypotheses are ‘ruled in’ as possible causes of a\nmedical problem and some of these possible causes are then\n‘ruled out’ to the extent scientific evidence makes it appro-\npriate to do so.” Ervin v. Johnson & Johnson, Inc., 492 F.3d 901,\n903 (7th Cir. 2007). The plaintiffs didn’t raise this argument\nat summary judgment, however. They first used the term\n\fNo. 17-2068 11\n\n“differential diagnosis” in their motion to alter or amend the\njudgment. That’s too late to preserve an argument for ap-\npeal. Cf. Green v. Whiteco Indus., Inc., 17 F.3d 199, 201 n.4 (7th\nCir. 1994) (“[R]aising [an] argument for the first time in the\nmotion for reconsideration is not adequate to preserve the\nissue for appeal and definitively waives it.”).\n The plaintiffs insist that they presented the argument be-\nlow, just without using the term “differential diagnosis.”\nThey point to their argument at summary judgment that\nDr. Ferzoco’s opinions were “founded on reliable methods,\nexperience[,] and data.” That’s far too general a statement to\nsituate their expert’s opinion in the specific domain of\ndifferential-diagnosis methodology. See Fednav Int’l Ltd. v.\nCont’l Ins. Co., 624 F.3d 834, 841 (7th Cir. 2010) (explaining\nthat the failure to present a specific argument below results\nin waiver, even if the argument “may have been before the\ndistrict court in more general terms”).\n Even if preserved, the argument fails on the merits.\nThough differential diagnosis is widely accepted as a general\nmatter, an expert’s decision to “rule in” or “rule out” poten-\ntial causes must itself be “scientifically valid.” Ervin, 492 F.3d\nat 904. In other words, Dr. Ferzoco needed to establish the\nreliability of his nidus theory in order to “rule in” the buck-\nling as a potential cause of Mrs. Bowersock’s death. As\nwe’ve noted, the judge identified several reasons why\nDr. Ferzoco’s nidus theory is not sufficiently reliable.\n The plaintiffs also argue that a scientific theory should\nnot be rejected solely because it lacks peer review. See Smith\nv. Ford Motor Co., 215 F.3d 713, 720 (7th Cir. 2000). But the\njudge gave multiple reasons for his decision, including the\nlack of corroborating evidence in Mrs. Bowersock’s medical\n\f12 No. 17-2068\n\nrecords and autopsy report. Along the same lines, the plain-\ntiffs repeatedly assert that the lack of scientific literature\nsupporting the expert’s theory goes to the weight, not the\nadmissibility, of his testimony. That’s not the correct stand-\nard. Rule 702 and Daubert require the judge to act as a vigor-\nous gatekeeper to ensure the reliability of expert testimony.\nSee Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149 (1999).\n In sum, the plaintiffs cannot prove medical causation\nwithout Dr. Ferzoco’s testimony. The record reflects that the\njudge properly applied the Daubert framework and soundly\nexercised his discretion to exclude it. It follows that Bard\nwas entitled to summary judgment.\n AFFIRMED.\n[END_CASE]", "role": "user" } ]
4,583,615		United States v. Scott Griffith	2019-01-22	18-1310	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before ROVNER, SYKES, and BARRETT, Circuit Judges.", "parties": "", "opinions": [{"author": "Ilana Kara Diamond Rovner", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\nNo. 18-1310\n\nUNITED STATES OF AMERICA,\n Plaintiff-Appellee,\n\n v.\n\n\nSCOTT B. GRIFFITH,\n Defendant-Appellant.\n\n\n Appeal from the United States District Court for the\n Central District of Illinois.\n No. 4:16-cr-40010-SLD-1 — Sara Darrow, Judge.\n\n\n\n ARGUED NOVEMBER 7, 2018 — DECIDED JANUARY 22, 2019\n\n\n Before ROVNER, SYKES, and BARRETT, Circuit Judges.\n ROVNER, Circuit Judge. Scott B. Griffith pled guilty to a\nthree-count indictment that charged him with receiving,\ndistributing, and possessing child pornography. The district\ncourt sentenced him to 240 months’ imprisonment on each\ncount, to run concurrently, as well as a fifteen-year period of\nsupervised release. On appeal, he asserts that the district court\n\f2 No. 18-1310\n\ncommitted procedural error in calculating the guidelines\nrange, and that his resulting sentence is substantively unrea-\nsonable. We affirm.\n I.\n Griffith was charged with: (1) receiving four digital images\nof child pornography, in violation of 18 U.S.C.\n§§ 2252A(a)(2)(A) and 2252A(b)(1); (2) distributing three digital\nimages of child pornography (different than those received), in\nviolation of 18 U.S.C. §§ 2252A(a)(2)(A) and 2252A(b)(1); and\n(3) possessing visual depictions of child pornography in\naddition to those described in the receipt and distribution\ncounts, in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and\n2252A(b)(2). In total, Griffith’s crimes included 477 photo-\ngraphs and eleven videos of unspecified length. All counts\nwere alleged to have occurred during a three-month period\nnear the end of 2015, and all involved the use of Twitter\naccounts. Each time Twitter detected child pornography on\nGriffith’s account, the company closed the account and\nreported the inappropriate activity. Griffith created more than\ntwenty-five Twitter accounts during that three-month period\nin an attempt to thwart the company’s efforts, directing his\nfollowers from one account to the next.\n Prior to committing these crimes, Griffith, who was fifty-\ntwo years old at the time of his arrest, had amassed enough of\na criminal history to land him in Category V, only one level\nbelow the top of the scale. At the age of twenty, he had\nsexually abused a child under the age of thirteen, a conviction\nthat was too old to be counted for criminal history purposes.\nThe vast majority of his remaining criminal history was\n\fNo. 18-1310 3\n\ncomposed of driving offenses and thefts, some minor and some\nmore serious. Additionally, two women had sought and\nreceived orders of protection against Griffith after he threat-\nened them. His criminal record prior to this offense spanned\nnearly thirty years and a dozen of the previous offenses were\neither too old or too minor to be included in the calculation of\nhis criminal history.\n The Presentence Investigation Report (“PSR”)1 noted that\nthe base offense level for the three grouped counts was 22,\nciting U.S.S.G. § 2G2.2. An analysis of specific offense charac-\nteristics added 18 levels for a total of 40. In particular, the PSR\nadded two levels under section 2G2.2(b)(2) because the\nmaterial involved a prepubescent minor. Griffith solicited child\npornography on his Twitter pages in exchange for access to his\nown collection, leading to a five-level increase under section\n2G2.2(b)(3)(b), for distributing the pictures in exchange for\nnon-pecuniary, valuable consideration, a transaction some-\ntimes called a “peer-to-peer exchange.” Four levels were added\nunder section 2G2.2(b)(4)(A) and (B) for material that depicted\nviolence and sexual abuse or exploitation of a toddler. The use\nof a computer contributed two levels under section 2G2.2(b)(6).\nFinally, each of the eleven videos was treated as equivalent to\nseventy-five images which, when added to the 477 photo-\ngraphs, pushed the total images over 600 and added five levels\n\n1\n There are two versions of the PSR in the record, an original and a revised\nversion. The revised version includes an addendum that details the\ndefendant’s objections to the first PSR and the government’s response, as\nwell as some other revisions and recommendations. For the purpose of\ncalculating the offense level and criminal history category, the PSRs are\nessentially the same. We will note any differences when relevant.\n\f4 No. 18-1310\n\nunder section 2G2.2(b)(7)(D), for an adjusted offense level of\n40. After deducting three levels for acceptance of responsibil-\nity, the PSR set the total offense level at 37. Both versions of the\nPSR noted that the guidelines range for a total offense level of\n37 and a criminal history Category V is 324 to 405 months’\nimprisonment. Both PSRs took the position that Griffith’s prior\nconviction for sexual abuse qualified him for enhanced\nmandatory minimums under 18 U.S.C. § 2252A(b)(1), noting\nthat the enhanced terms for Counts I and II were fifteen to\nforty years. Count III carried a minimum of ten years and a\nmaximum of twenty years, assuming that the enhanced\npenalty applied. The revised PSR incorrectly stated that,\nwithout the enhanced mandatory minimums, the guidelines\nrange would be 240 months. Neither party noticed that error\nuntil the sentencing hearing, as we discuss below.\n Griffith filed a number of objections to the PSR in the\ndistrict court, largely falling into three categories. First, he\nobjected to the application of the “specific offense characteris-\ntics” provisions that added eighteen levels to the base offense\nlevel. He contended that the additional levels assessed against\nhim were based on “arbitrary, unreasonable and unwarranted\nsentencing factors which are inherent in the offense of convic-\ntion, and patently inconsistent with the purposes of Title 18\nU.S.C. Section 3553(a).” R. 18 at 1–2. He complained that the\n“rote application” of those provisions “yields a draconian\nguideline sentencing range of 324–405 months (27 to 33.75\nyears),” a result he characterized as “wholly incompatible”\nwith the section 3553(a) factors and “offensive to the ends of\njustice.” R. 18, at 2. The crux of Griffith’s objection was that\n\fNo. 18-1310 5\n\nguideline 2G2.2 is fundamentally flawed and that a below-\nguidelines sentence was warranted:\n In sum, Mr. Griffith’s objections to the specific\n offense characteristics being assessed against him\n are that the child pornography guidelines, as ap-\n plied to him on the facts of this case, are excessively\n harsh and fundamentally incompatible with the\n §3553(a) sentencing factors. … Accordingly, Mr.\n Griffith asks [for] a substantial downward variance\n from the guidelines at the time of sentencing.\nR. 18 at 6-7. Griffith’s second major objection was that the court\nshould not apply enhanced mandatory minimum terms\nagainst him based on his prior criminal sexual abuse convic-\ntion under 18 U.S.C. § 2252A(b)(1). The district court agreed\nwith this position, finding that the enhanced mandatory\nminimum terms did not apply to him, and that issue is not a\npart of this appeal. Finally, he maintained that Criminal\nHistory Category V over-represented his criminal history.\n At the sentencing hearing, after resolving the enhanced\nmandatory minimum issue in Griffith’s favor, the district court\nnoted that the statutory range for Counts I and II was five to\ntwenty years, and zero to twenty years for Count III. The court\nthen found that the total offense level was 37, the Criminal\nHistory was Category V, and the guidelines range (which had\nbeen calculated to be 324 to 405 months) would become 240\nmonths because of the statutory cap for each count. The court\nasked if the parties concurred “with the Court’s recitation as to\nthe applicable statutory and guideline provisions,” and both\n\f6 No. 18-1310\n\nparties replied, “Yes.” R. 37, Sent. Tr. at 19. The court then\nadopted the revised PSR and its addendum.\n After the parties presented argument regarding Griffith’s\nobjections and the section 3553(a) factors, the government\nasked the court to clarify the guidelines range. The government\npointed out that because Griffith pled guilty to three separate\noffenses involving discrete materials, his sentences could run\nconsecutively, meaning there was a sixty-year statutory cap,\nnot a twenty-year maximum. After asking the probation officer\nto check the calculation, the court announced:\n Yes. The gist is if I ran it consecutively, I could\n impose a guideline range sentence which would be\n the 324 to 405 months. In other words, the statutory\n cap here would be 60 years—…—if run consecu-\n tively. I understand that. … Do you want me to\n refine that? I mean, I think it was—I guess all I’ll say\n is I think it was an error for me to say earlier that the\n guideline range becomes the statutory cap because\n they could be run consecutively. … Is that an accu-\n rate assessment?\nR. 37, Sent. Tr. at 37-38. Defense counsel responded, “Yes.” Id.\n After the defendant made a statement, the court addressed\nthe section 3553(a) factors. In the midst of a thorough discus-\nsion of those factors, the court exhaustively addressed Grif-\nfith’s arguments regarding “the fairness of these guidelines.”\nR. 37, Sent. Tr. at 48. Catering her analysis to the facts of\nGriffith’s offenses, the judge found appropriate the two-level\nenhancement for material depicting prepubescent children, the\nfive-level addition for peer-to-peer exchange of material, and\n\fNo. 18-1310 7\n\nthe four-level bump for the violence of the images. The court\nnoted that it discounted the two-level enhancement for use of\na computer in nearly all cases because it was part of every\noffense and so “not applying the two-level enhancement in\nterms of a variance would be appropriate for use of [a] com-\nputer.” R. 37, Sent. Tr. at 49. On the number of images, the\ncourt noted that it lacked information regarding the length of\nthe videos or what was depicted on them, making it difficult to\ncompute a final number. She declined to use the “boilerplate”\ncomputation of 75 images per video, finding that a four-level\nenhancement for the number of images would be more\nappropriate than the five levels indicated by the guidelines for\n477 photographs and eleven videos:\n I think that the—so, the variance, if you want to call\n it that, for my recalculated guidelines would be 37.\n I think that would be the appropriate reflection of\n the seriousness of your conduct here.\nR. 37, Sent. Tr. at 50. The court then found that Criminal\nHistory Category V appropriately reflected Griffith’s criminal\nconduct over a lengthy span of time. Before announcing the\nsentence, the court remarked that Griffith was not the typical\nchild pornography defendant because most were level 34 with\na Criminal History Category I but Griffith was “squarely” a\nCategory V. R. 37, Sent. Tr. at 57. After defense counsel\nconfirmed that the court had addressed all of Griffith’s\narguments in mitigation, the judge sentenced Griffith to 240\nmonths’ imprisonment on each count, to run concurrently, as\nwell as a term of supervised release. Griffith appeals.\n\f8 No. 18-1310\n\n II.\n On appeal, Griffith contends that the district court commit-\nted procedural error when it failed to correctly calculate the\nguidelines sentence before imposing the 240-month sentence.\nHe also argues that the court imposed a substantively unrea-\nsonable sentence. We apply the abuse of discretion standard in\nreviewing whether sentencing decisions are reasonable. Gall v.\nUnited States, 552 U.S. 38, 46 (2007); United States v. Smith, 860\nF.3d 508, 514 (7th Cir. 2017). We first must ensure that the\ndistrict court committed no significant procedural error, such\nas incorrectly calculating the guidelines range, failing to\nconsider the section 3553(a) factors, selecting a sentence based\non clearly erroneous facts, or failing to explain adequately the\nchosen sentence. Gall, 552 U.S. at 51; Smith, 860 F.3d at 514.\nWhether the district court committed procedural error is a\nquestion of law that we review de novo. Smith, 860 F.3d at 514;\nUnited States v. Mendoza, 510 F.3d 749, 754 (7th Cir. 2007).\n In raising his procedural challenge, Griffith first asserts that\nthe court did not correctly calculate the guidelines range when\nit initially adopted the PSR addendum’s erroneous guidelines\ncalculation. He also maintains that the court failed to rule on a\nfinal guidelines range before pronouncing sentence. These\nobjections do not hold up to a fair reading of the sentencing\ntranscript.\n After adopting the revised PSR and its addendum during\nthe sentencing hearing, the court became aware that the\ndocument contained an error. The revised PSR calculated the\nguidelines range as 324 to 405 months if the enhanced manda-\ntory minimum applied, and as 240 months if that statutory\n\fNo. 18-1310 9\n\nenhancement did not apply. Prior to the hearing, neither party\nnoticed that the statutory cap was not limited to 240 months.\nGriffith had pled guilty to three counts, each with its own cap\nof twenty years (or 240 months), and those terms could be\nimposed consecutively for a total of sixty years. As we noted\nabove, the government alerted the judge to this error after she\nrejected the statutory enhancement and otherwise adopted the\nPSR. The court agreed with the government’s proposed\ncorrection and then found that the statutory maximum was\nsixty years. As the judge clarified at the sentencing hearing,\nthat meant that the guidelines range was not capped at twenty\nyears but was in fact 324 to 405 months, which was well within\nthe sixty-year cap. Both parties expressly agreed that this was\nan accurate assessment of the guidelines. In other words, the\ncourt was no longer adopting the PSR in its entirety but was\namending its earlier ruling to account for the corrected\nstatutory cap of sixty years, making the correct guidelines\nrange 324 to 405 months. An argument that the court erred in\ninitially adopting the erroneous PSR is a non-starter. The court\nrecognized and corrected that error before announcing the\nsentence. Any initial misstep was harmless because it did not\naffect the court’s choice of sentence. United States v. Morris, 775\nF.3d 882, 885 (7th Cir. 2015).\n Griffith next claims that the court re-analyzed the five\nspecific offense characteristics for section 2G2.2 but never\nrecalculated the guidelines to reflect that new analysis. He is\nreferring, of course, to the district court’s discussion of a\ndownward “variance” equivalent to two levels for use of a\ncomputer and one level for the total number of images. In\ncontext, however, it is clear that the court was not re-analyzing\n\f10 No. 18-1310\n\nthe specific offense characteristics in order to correct the\nguidelines calculation but rather was expressing disagreement\nwith the properly calculated guidelines sentence.\n After United States v. Booker, 543 U.S. 220 (2005), a sentenc-\ning judge has the discretion to disagree with a particular\nprovision of the guidelines and to impose a non-guidelines\nsentence that, in his or her judgment, is more consistent with\nthe statutory sentencing factors set out in section 3553(a).\nKimbrough v. United States, 552 U.S. 85 (2007); Smith, 860 F.3d at\n517; United States v. Rosales, 813 F.3d 634, 637 (7th Cir. 2016). In\nthe context of addressing the section 3553(a) factors, the court\nhere explained that it routinely varied downward the equiva-\nlent of two levels because child pornography offenses virtually\nalways involve the use of a computer, making the application\nof section 2G2.2(b)(6) inappropriate, in the court’s opinion. The\ncourt similarly disagreed with the “boilerplate” addition of\nseventy-five images for each video, allowing for a downward\nvariance equivalent to one level. The court then stated that “the\nvariance, if you want to call it that, for my recalculated\nguidelines would be 37.” R. 37, Sent. Tr. at 50. That mention of\nlevel 37 was likely a misstatement because it did not take into\naccount that the court had also adopted the PSR recommenda-\ntion to allow a three-level reduction for acceptance of responsi-\nbility, and so the variance was analogous to level 34, not level\n37. The misstatement had no effect on the sentence, however,\nbecause the court treated the variance as equivalent to a level\n34 sentence, not a level 37 sentence.\n In expressing its policy disagreement with the application\nof certain specific offense characteristics, the court simply\nanalogized the variance to reductions in particular specific\n\fNo. 18-1310 11\n\noffense characteristic levels. The court made this adjustment\nunder section 3553(a), and had no occasion to recalculate the\nfinal guidelines level. In Criminal History Category V, the\nanalogous level 34 sentence yields a guidelines range of 235 to\n293 months. The final sentence of 240 months is on the low end\nof a level 34 sentence and a full 84 months below the bottom of\nthe properly calculated guidelines range. If, as Griffith argues,\nthe court had mistakenly failed to account for acceptance of\nresponsibility when deciding how much to vary, the sentence\nwould have been significantly higher. We have no doubt that\nthe court was not correcting the guidelines calculation but was\nsimply explaining a downward variance under section 3553(a)\nfrom the properly calculated range by way of analogy to the\nguidelines.\n We emphasize that it was not necessary for the court to\nanalogize to the guidelines when explaining the downward\nvariance. United States v. Kuczora, 910 F.3d 904, 908 (7th Cir.\n2018) (“the sentencing court need not frame its explanation of\na sentence in terms of a departure from the guidelines range,\nbut may instead focus on the appropriateness of the sentence\nunder § 3553.”) (quoting United States v. Courtland, 642 F.3d\n545, 550 (7th Cir. 2011)). A court need only explain why a\nsentence is appropriate under the statutory criteria. Kuczora,\n910 F.3d at 908. So long as a court uses the properly calculated\nguidelines range as a starting point, it may explain a decision\nto vary from the range with reference to the section 3553(a)\nfactors alone. Kuczora, 910 F.3d at 908.\n We also note that the court had not found any error in the\nPSR’s calculation of the guidelines (other than the statutory cap\nissue we noted earlier) and had no reason to recalculate the\n\f12 No. 18-1310\n\nguidelines. The court’s Statement of Reasons explaining the\nsentence makes clear that the court intended for the three-level\nreduction to be a variance because of a policy disagreement\nwith the properly calculated guidelines, not a change to the\nguidelines calculation. R. 27, at 3, ¶ VI.D. And Griffith points\nto no error in the district court’s guidelines calculation here.\nIndeed, Griffith did not challenge the factual basis of the\nguidelines calculation or the final offense level in the district\ncourt. He argued instead that the resulting offense level was\ninconsistent with the purposes of sentencing expressed in\nsection 3553(a). He did not deny, for example, that some of the\nphotographs depicted prepubescent minors, or that certain\nimages portrayed violence towards and sexual abuse of\ntoddlers. He conceded that he offered access to his Twitter\naccounts in exchange for additional child pornography, that he\nused a computer and that his offenses involved more than 600\nimages when calculated under guidelines standards. But in\nconceding the basic facts underlying the calculation and the\nresult of the \"rote application\" of the guidelines provisions, he\nobjected only that the result produced a draconian and\nunjustified sentence. In light of all of the circumstances, the\nonly reasonable reading of the sentencing transcript is that the\ncourt understood and announced a correct calculation of the\nguidelines and then varied downward by analogy to certain\nguidelines factors during the discussion of the statutory\nfactors.\n Finally, we can quickly dispense with any claim that the\nfinal sentence was substantively unreasonable. When assessing\nthe substantive reasonableness of a sentence under the abuse\nof discretion standard, we presume that a within-guidelines\n\fNo. 18-1310 13\n\nsentence is reasonable. Rita v. United States, 551 U.S. 338,\n347–56 (2007); United States v. Moore, 851 F.3d 666, 674 (7th Cir.\n2017). That same presumption obviously applies to a below-\nguidelines sentence, such as the one imposed here. Moore, 851\nF.3d at 674. Griffith bears the burden of rebutting that pre-\nsumption by demonstrating that the sentence is unreasonably\nhigh in light of the section 3553(a) factors. United States v.\nMykytiuk, 415 F.3d 606, 608 (7th Cir. 2005).\n Griffith attempts to surmount that challenge by arguing\nthat his collection of child pornography was relatively small;\nthat his crimes involved no contact offenses; that a twenty-year\nterm was a de facto life sentence for a man of his age and health;\nthat the sentence was unnecessary to deter recidivism because\nof his age and the lengthy term of supervised release; and that\nsection 2G2.2 encourages unreasonably harsh sentences. The\ndistrict court carefully considered and addressed each of these\narguments, and Griffith’s claim on appeal amounts to a request\nthat we substitute our judgment for that of the district court. In\nthe usual course, it would be the government, not the defen-\ndant, arguing that the court abused its discretion by granting\na significantly below-guidelines sentence. In any case, the\ndistrict court did not abuse its discretion in granting Griffith an\neighty-four month break from the bottom of the properly-\ncalculated guidelines sentencing range, and the sentence was\nsubstantively reasonable.\n AFFIRMED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4360868/", "author_raw": "Ilana Kara Diamond Rovner"}]}	ROVNER	SYKES	BARRETT	1		{"ROVNER": ", Circuit", "SYKES": ", Circuit", "BARRETT": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4583615/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: United States v. Scott Griffith\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-22\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\nNo. 18-1310\n\nUNITED STATES OF AMERICA,\n Plaintiff-Appellee,\n\n v.\n\n\nSCOTT B. GRIFFITH,\n Defendant-Appellant.\n\n\n Appeal from the United States District Court for the\n Central District of Illinois.\n No. 4:16-cr-40010-SLD-1 — Sara Darrow, Judge.\n\n\n\n ARGUED NOVEMBER 7, 2018 — DECIDED JANUARY 22, 2019\n\n\n Before ROVNER, SYKES, and BARRETT, Circuit Judges.\n ROVNER, Circuit Judge. Scott B. Griffith pled guilty to a\nthree-count indictment that charged him with receiving,\ndistributing, and possessing child pornography. The district\ncourt sentenced him to 240 months’ imprisonment on each\ncount, to run concurrently, as well as a fifteen-year period of\nsupervised release. On appeal, he asserts that the district court\n\f2 No. 18-1310\n\ncommitted procedural error in calculating the guidelines\nrange, and that his resulting sentence is substantively unrea-\nsonable. We affirm.\n I.\n Griffith was charged with: (1) receiving four digital images\nof child pornography, in violation of 18 U.S.C.\n§§ 2252A(a)(2)(A) and 2252A(b)(1); (2) distributing three digital\nimages of child pornography (different than those received), in\nviolation of 18 U.S.C. §§ 2252A(a)(2)(A) and 2252A(b)(1); and\n(3) possessing visual depictions of child pornography in\naddition to those described in the receipt and distribution\ncounts, in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and\n2252A(b)(2). In total, Griffith’s crimes included 477 photo-\ngraphs and eleven videos of unspecified length. All counts\nwere alleged to have occurred during a three-month period\nnear the end of 2015, and all involved the use of Twitter\naccounts. Each time Twitter detected child pornography on\nGriffith’s account, the company closed the account and\nreported the inappropriate activity. Griffith created more than\ntwenty-five Twitter accounts during that three-month period\nin an attempt to thwart the company’s efforts, directing his\nfollowers from one account to the next.\n Prior to committing these crimes, Griffith, who was fifty-\ntwo years old at the time of his arrest, had amassed enough of\na criminal history to land him in Category V, only one level\nbelow the top of the scale. At the age of twenty, he had\nsexually abused a child under the age of thirteen, a conviction\nthat was too old to be counted for criminal history purposes.\nThe vast majority of his remaining criminal history was\n\fNo. 18-1310 3\n\ncomposed of driving offenses and thefts, some minor and some\nmore serious. Additionally, two women had sought and\nreceived orders of protection against Griffith after he threat-\nened them. His criminal record prior to this offense spanned\nnearly thirty years and a dozen of the previous offenses were\neither too old or too minor to be included in the calculation of\nhis criminal history.\n The Presentence Investigation Report (“PSR”)1 noted that\nthe base offense level for the three grouped counts was 22,\nciting U.S.S.G. § 2G2.2. An analysis of specific offense charac-\nteristics added 18 levels for a total of 40. In particular, the PSR\nadded two levels under section 2G2.2(b)(2) because the\nmaterial involved a prepubescent minor. Griffith solicited child\npornography on his Twitter pages in exchange for access to his\nown collection, leading to a five-level increase under section\n2G2.2(b)(3)(b), for distributing the pictures in exchange for\nnon-pecuniary, valuable consideration, a transaction some-\ntimes called a “peer-to-peer exchange.” Four levels were added\nunder section 2G2.2(b)(4)(A) and (B) for material that depicted\nviolence and sexual abuse or exploitation of a toddler. The use\nof a computer contributed two levels under section 2G2.2(b)(6).\nFinally, each of the eleven videos was treated as equivalent to\nseventy-five images which, when added to the 477 photo-\ngraphs, pushed the total images over 600 and added five levels\n\n1\n There are two versions of the PSR in the record, an original and a revised\nversion. The revised version includes an addendum that details the\ndefendant’s objections to the first PSR and the government’s response, as\nwell as some other revisions and recommendations. For the purpose of\ncalculating the offense level and criminal history category, the PSRs are\nessentially the same. We will note any differences when relevant.\n\f4 No. 18-1310\n\nunder section 2G2.2(b)(7)(D), for an adjusted offense level of\n40. After deducting three levels for acceptance of responsibil-\nity, the PSR set the total offense level at 37. Both versions of the\nPSR noted that the guidelines range for a total offense level of\n37 and a criminal history Category V is 324 to 405 months’\nimprisonment. Both PSRs took the position that Griffith’s prior\nconviction for sexual abuse qualified him for enhanced\nmandatory minimums under 18 U.S.C. § 2252A(b)(1), noting\nthat the enhanced terms for Counts I and II were fifteen to\nforty years. Count III carried a minimum of ten years and a\nmaximum of twenty years, assuming that the enhanced\npenalty applied. The revised PSR incorrectly stated that,\nwithout the enhanced mandatory minimums, the guidelines\nrange would be 240 months. Neither party noticed that error\nuntil the sentencing hearing, as we discuss below.\n Griffith filed a number of objections to the PSR in the\ndistrict court, largely falling into three categories. First, he\nobjected to the application of the “specific offense characteris-\ntics” provisions that added eighteen levels to the base offense\nlevel. He contended that the additional levels assessed against\nhim were based on “arbitrary, unreasonable and unwarranted\nsentencing factors which are inherent in the offense of convic-\ntion, and patently inconsistent with the purposes of Title 18\nU.S.C. Section 3553(a).” R. 18 at 1–2. He complained that the\n“rote application” of those provisions “yields a draconian\nguideline sentencing range of 324–405 months (27 to 33.75\nyears),” a result he characterized as “wholly incompatible”\nwith the section 3553(a) factors and “offensive to the ends of\njustice.” R. 18, at 2. The crux of Griffith’s objection was that\n\fNo. 18-1310 5\n\nguideline 2G2.2 is fundamentally flawed and that a below-\nguidelines sentence was warranted:\n In sum, Mr. Griffith’s objections to the specific\n offense characteristics being assessed against him\n are that the child pornography guidelines, as ap-\n plied to him on the facts of this case, are excessively\n harsh and fundamentally incompatible with the\n §3553(a) sentencing factors. … Accordingly, Mr.\n Griffith asks [for] a substantial downward variance\n from the guidelines at the time of sentencing.\nR. 18 at 6-7. Griffith’s second major objection was that the court\nshould not apply enhanced mandatory minimum terms\nagainst him based on his prior criminal sexual abuse convic-\ntion under 18 U.S.C. § 2252A(b)(1). The district court agreed\nwith this position, finding that the enhanced mandatory\nminimum terms did not apply to him, and that issue is not a\npart of this appeal. Finally, he maintained that Criminal\nHistory Category V over-represented his criminal history.\n At the sentencing hearing, after resolving the enhanced\nmandatory minimum issue in Griffith’s favor, the district court\nnoted that the statutory range for Counts I and II was five to\ntwenty years, and zero to twenty years for Count III. The court\nthen found that the total offense level was 37, the Criminal\nHistory was Category V, and the guidelines range (which had\nbeen calculated to be 324 to 405 months) would become 240\nmonths because of the statutory cap for each count. The court\nasked if the parties concurred “with the Court’s recitation as to\nthe applicable statutory and guideline provisions,” and both\n\f6 No. 18-1310\n\nparties replied, “Yes.” R. 37, Sent. Tr. at 19. The court then\nadopted the revised PSR and its addendum.\n After the parties presented argument regarding Griffith’s\nobjections and the section 3553(a) factors, the government\nasked the court to clarify the guidelines range. The government\npointed out that because Griffith pled guilty to three separate\noffenses involving discrete materials, his sentences could run\nconsecutively, meaning there was a sixty-year statutory cap,\nnot a twenty-year maximum. After asking the probation officer\nto check the calculation, the court announced:\n Yes. The gist is if I ran it consecutively, I could\n impose a guideline range sentence which would be\n the 324 to 405 months. In other words, the statutory\n cap here would be 60 years—…—if run consecu-\n tively. I understand that. … Do you want me to\n refine that? I mean, I think it was—I guess all I’ll say\n is I think it was an error for me to say earlier that the\n guideline range becomes the statutory cap because\n they could be run consecutively. … Is that an accu-\n rate assessment?\nR. 37, Sent. Tr. at 37-38. Defense counsel responded, “Yes.” Id.\n After the defendant made a statement, the court addressed\nthe section 3553(a) factors. In the midst of a thorough discus-\nsion of those factors, the court exhaustively addressed Grif-\nfith’s arguments regarding “the fairness of these guidelines.”\nR. 37, Sent. Tr. at 48. Catering her analysis to the facts of\nGriffith’s offenses, the judge found appropriate the two-level\nenhancement for material depicting prepubescent children, the\nfive-level addition for peer-to-peer exchange of material, and\n\fNo. 18-1310 7\n\nthe four-level bump for the violence of the images. The court\nnoted that it discounted the two-level enhancement for use of\na computer in nearly all cases because it was part of every\noffense and so “not applying the two-level enhancement in\nterms of a variance would be appropriate for use of [a] com-\nputer.” R. 37, Sent. Tr. at 49. On the number of images, the\ncourt noted that it lacked information regarding the length of\nthe videos or what was depicted on them, making it difficult to\ncompute a final number. She declined to use the “boilerplate”\ncomputation of 75 images per video, finding that a four-level\nenhancement for the number of images would be more\nappropriate than the five levels indicated by the guidelines for\n477 photographs and eleven videos:\n I think that the—so, the variance, if you want to call\n it that, for my recalculated guidelines would be 37.\n I think that would be the appropriate reflection of\n the seriousness of your conduct here.\nR. 37, Sent. Tr. at 50. The court then found that Criminal\nHistory Category V appropriately reflected Griffith’s criminal\nconduct over a lengthy span of time. Before announcing the\nsentence, the court remarked that Griffith was not the typical\nchild pornography defendant because most were level 34 with\na Criminal History Category I but Griffith was “squarely” a\nCategory V. R. 37, Sent. Tr. at 57. After defense counsel\nconfirmed that the court had addressed all of Griffith’s\narguments in mitigation, the judge sentenced Griffith to 240\nmonths’ imprisonment on each count, to run concurrently, as\nwell as a term of supervised release. Griffith appeals.\n\f8 No. 18-1310\n\n II.\n On appeal, Griffith contends that the district court commit-\nted procedural error when it failed to correctly calculate the\nguidelines sentence before imposing the 240-month sentence.\nHe also argues that the court imposed a substantively unrea-\nsonable sentence. We apply the abuse of discretion standard in\nreviewing whether sentencing decisions are reasonable. Gall v.\nUnited States, 552 U.S. 38, 46 (2007); United States v. Smith, 860\nF.3d 508, 514 (7th Cir. 2017). We first must ensure that the\ndistrict court committed no significant procedural error, such\nas incorrectly calculating the guidelines range, failing to\nconsider the section 3553(a) factors, selecting a sentence based\non clearly erroneous facts, or failing to explain adequately the\nchosen sentence. Gall, 552 U.S. at 51; Smith, 860 F.3d at 514.\nWhether the district court committed procedural error is a\nquestion of law that we review de novo. Smith, 860 F.3d at 514;\nUnited States v. Mendoza, 510 F.3d 749, 754 (7th Cir. 2007).\n In raising his procedural challenge, Griffith first asserts that\nthe court did not correctly calculate the guidelines range when\nit initially adopted the PSR addendum’s erroneous guidelines\ncalculation. He also maintains that the court failed to rule on a\nfinal guidelines range before pronouncing sentence. These\nobjections do not hold up to a fair reading of the sentencing\ntranscript.\n After adopting the revised PSR and its addendum during\nthe sentencing hearing, the court became aware that the\ndocument contained an error. The revised PSR calculated the\nguidelines range as 324 to 405 months if the enhanced manda-\ntory minimum applied, and as 240 months if that statutory\n\fNo. 18-1310 9\n\nenhancement did not apply. Prior to the hearing, neither party\nnoticed that the statutory cap was not limited to 240 months.\nGriffith had pled guilty to three counts, each with its own cap\nof twenty years (or 240 months), and those terms could be\nimposed consecutively for a total of sixty years. As we noted\nabove, the government alerted the judge to this error after she\nrejected the statutory enhancement and otherwise adopted the\nPSR. The court agreed with the government’s proposed\ncorrection and then found that the statutory maximum was\nsixty years. As the judge clarified at the sentencing hearing,\nthat meant that the guidelines range was not capped at twenty\nyears but was in fact 324 to 405 months, which was well within\nthe sixty-year cap. Both parties expressly agreed that this was\nan accurate assessment of the guidelines. In other words, the\ncourt was no longer adopting the PSR in its entirety but was\namending its earlier ruling to account for the corrected\nstatutory cap of sixty years, making the correct guidelines\nrange 324 to 405 months. An argument that the court erred in\ninitially adopting the erroneous PSR is a non-starter. The court\nrecognized and corrected that error before announcing the\nsentence. Any initial misstep was harmless because it did not\naffect the court’s choice of sentence. United States v. Morris, 775\nF.3d 882, 885 (7th Cir. 2015).\n Griffith next claims that the court re-analyzed the five\nspecific offense characteristics for section 2G2.2 but never\nrecalculated the guidelines to reflect that new analysis. He is\nreferring, of course, to the district court’s discussion of a\ndownward “variance” equivalent to two levels for use of a\ncomputer and one level for the total number of images. In\ncontext, however, it is clear that the court was not re-analyzing\n\f10 No. 18-1310\n\nthe specific offense characteristics in order to correct the\nguidelines calculation but rather was expressing disagreement\nwith the properly calculated guidelines sentence.\n After United States v. Booker, 543 U.S. 220 (2005), a sentenc-\ning judge has the discretion to disagree with a particular\nprovision of the guidelines and to impose a non-guidelines\nsentence that, in his or her judgment, is more consistent with\nthe statutory sentencing factors set out in section 3553(a).\nKimbrough v. United States, 552 U.S. 85 (2007); Smith, 860 F.3d at\n517; United States v. Rosales, 813 F.3d 634, 637 (7th Cir. 2016). In\nthe context of addressing the section 3553(a) factors, the court\nhere explained that it routinely varied downward the equiva-\nlent of two levels because child pornography offenses virtually\nalways involve the use of a computer, making the application\nof section 2G2.2(b)(6) inappropriate, in the court’s opinion. The\ncourt similarly disagreed with the “boilerplate” addition of\nseventy-five images for each video, allowing for a downward\nvariance equivalent to one level. The court then stated that “the\nvariance, if you want to call it that, for my recalculated\nguidelines would be 37.” R. 37, Sent. Tr. at 50. That mention of\nlevel 37 was likely a misstatement because it did not take into\naccount that the court had also adopted the PSR recommenda-\ntion to allow a three-level reduction for acceptance of responsi-\nbility, and so the variance was analogous to level 34, not level\n37. The misstatement had no effect on the sentence, however,\nbecause the court treated the variance as equivalent to a level\n34 sentence, not a level 37 sentence.\n In expressing its policy disagreement with the application\nof certain specific offense characteristics, the court simply\nanalogized the variance to reductions in particular specific\n\fNo. 18-1310 11\n\noffense characteristic levels. The court made this adjustment\nunder section 3553(a), and had no occasion to recalculate the\nfinal guidelines level. In Criminal History Category V, the\nanalogous level 34 sentence yields a guidelines range of 235 to\n293 months. The final sentence of 240 months is on the low end\nof a level 34 sentence and a full 84 months below the bottom of\nthe properly calculated guidelines range. If, as Griffith argues,\nthe court had mistakenly failed to account for acceptance of\nresponsibility when deciding how much to vary, the sentence\nwould have been significantly higher. We have no doubt that\nthe court was not correcting the guidelines calculation but was\nsimply explaining a downward variance under section 3553(a)\nfrom the properly calculated range by way of analogy to the\nguidelines.\n We emphasize that it was not necessary for the court to\nanalogize to the guidelines when explaining the downward\nvariance. United States v. Kuczora, 910 F.3d 904, 908 (7th Cir.\n2018) (“the sentencing court need not frame its explanation of\na sentence in terms of a departure from the guidelines range,\nbut may instead focus on the appropriateness of the sentence\nunder § 3553.”) (quoting United States v. Courtland, 642 F.3d\n545, 550 (7th Cir. 2011)). A court need only explain why a\nsentence is appropriate under the statutory criteria. Kuczora,\n910 F.3d at 908. So long as a court uses the properly calculated\nguidelines range as a starting point, it may explain a decision\nto vary from the range with reference to the section 3553(a)\nfactors alone. Kuczora, 910 F.3d at 908.\n We also note that the court had not found any error in the\nPSR’s calculation of the guidelines (other than the statutory cap\nissue we noted earlier) and had no reason to recalculate the\n\f12 No. 18-1310\n\nguidelines. The court’s Statement of Reasons explaining the\nsentence makes clear that the court intended for the three-level\nreduction to be a variance because of a policy disagreement\nwith the properly calculated guidelines, not a change to the\nguidelines calculation. R. 27, at 3, ¶ VI.D. And Griffith points\nto no error in the district court’s guidelines calculation here.\nIndeed, Griffith did not challenge the factual basis of the\nguidelines calculation or the final offense level in the district\ncourt. He argued instead that the resulting offense level was\ninconsistent with the purposes of sentencing expressed in\nsection 3553(a). He did not deny, for example, that some of the\nphotographs depicted prepubescent minors, or that certain\nimages portrayed violence towards and sexual abuse of\ntoddlers. He conceded that he offered access to his Twitter\naccounts in exchange for additional child pornography, that he\nused a computer and that his offenses involved more than 600\nimages when calculated under guidelines standards. But in\nconceding the basic facts underlying the calculation and the\nresult of the \"rote application\" of the guidelines provisions, he\nobjected only that the result produced a draconian and\nunjustified sentence. In light of all of the circumstances, the\nonly reasonable reading of the sentencing transcript is that the\ncourt understood and announced a correct calculation of the\nguidelines and then varied downward by analogy to certain\nguidelines factors during the discussion of the statutory\nfactors.\n Finally, we can quickly dispense with any claim that the\nfinal sentence was substantively unreasonable. When assessing\nthe substantive reasonableness of a sentence under the abuse\nof discretion standard, we presume that a within-guidelines\n\fNo. 18-1310 13\n\nsentence is reasonable. Rita v. United States, 551 U.S. 338,\n347–56 (2007); United States v. Moore, 851 F.3d 666, 674 (7th Cir.\n2017). That same presumption obviously applies to a below-\nguidelines sentence, such as the one imposed here. Moore, 851\nF.3d at 674. Griffith bears the burden of rebutting that pre-\nsumption by demonstrating that the sentence is unreasonably\nhigh in light of the section 3553(a) factors. United States v.\nMykytiuk, 415 F.3d 606, 608 (7th Cir. 2005).\n Griffith attempts to surmount that challenge by arguing\nthat his collection of child pornography was relatively small;\nthat his crimes involved no contact offenses; that a twenty-year\nterm was a de facto life sentence for a man of his age and health;\nthat the sentence was unnecessary to deter recidivism because\nof his age and the lengthy term of supervised release; and that\nsection 2G2.2 encourages unreasonably harsh sentences. The\ndistrict court carefully considered and addressed each of these\narguments, and Griffith’s claim on appeal amounts to a request\nthat we substitute our judgment for that of the district court. In\nthe usual course, it would be the government, not the defen-\ndant, arguing that the court abused its discretion by granting\na significantly below-guidelines sentence. In any case, the\ndistrict court did not abuse its discretion in granting Griffith an\neighty-four month break from the bottom of the properly-\ncalculated guidelines sentencing range, and the sentence was\nsubstantively reasonable.\n AFFIRMED.\n[END_CASE]", "role": "user" } ]
4,583,617		P.F., a minor, by A.F. v. Carolyn S. Taylor	2019-01-22	17-3266	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before SYKES and BARRETT, Circuit Judges, and DURKIN, District Judge.", "parties": "", "opinions": [{"author": "Diane S. Sykes", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-3266\nP.F., a minor, by A.F.,\nhis parent, et al.,\n Plaintiffs-Appellants\n\n v.\n\nCAROLYN STANFORD TAYLOR, \nState Superintendent of Public\nInstruction, et al.,\n Defendants-Appellees.\n ____________________\n\n Appeal from the United States District Court\n for the Western District of Wisconsin.\n No. 14-cv-792 — William M. Conley, Judge.\n ____________________\n\n ARGUED APRIL 20, 2018 — DECIDED JANUARY 22, 2019\n ____________________\n\n Before SYKES and BARRETT, Circuit Judges, and DURKIN,\nDistrict Judge. †\n\n We have substituted Carolyn Stanford Taylor, the current State Superin-\ntendent of Public Instruction, for Tony Evers, the prior Superintendent.\n† Of the Northern District of Illinois, sitting by designation.\n\f2 No. 17-3266\n\n SYKES, Circuit Judge. Under Wisconsin’s open-enrollment\nprogram, a public-school student can apply to transfer from\nhis resident school district to a nonresident district that has\nan available space for him. WIS. STAT. § 118.51. The program\ndistinguishes between “regular education and special educa-\ntion spaces.” Id. § 118.51(5)(a)1. If a student with a disability\nrequires special services, a nonresident district may deny the\nstudent’s transfer application if it lacks the services or space\nnecessary to meet those special needs. Id. § 118.51(5)(a)4.\n This suit concerns a group of disabled schoolchildren\nwhose transfer applications were denied because nonresi-\ndent districts determined that they could not meet the\nstudents’ special needs. The students’ parents, on their\nchildren’s behalf, sued the school districts and various state\nactors seeking injunctive, declaratory, and compensatory\nrelief under Title II of the Americans with Disabilities Act\n(“ADA”), 42 U.S.C. § 12132; section 504 of the Rehabilitation\nAct, 29 U.S.C. § 794(a); and the Equal Protection Clause,\nU.S. CONST. amend. XIV, § 1. They argued that the program\nunlawfully discriminates against disabled children because\nof their disabilities. The district judge concluded that the\nprogram did not violate federal law and entered summary\njudgment for the defendants.\n We affirm. Differential treatment of special-needs stu-\ndents doesn’t make the program unlawful. Federal law\n“forbids discrimination based on stereotypes about a handi-\ncap, but it does not forbid decisions based on the actual\nattributes of the handicap.” Anderson v. Univ. of Wis.,\n841 F.2d 737, 740 (7th Cir. 1988). The program makes deci-\nsions based on the actual needs of disabled students, so it\ncomplies with federal law. And even if we analyze the case\n\fNo. 17-3266 3\n\nas a request for an accommodation, the requested change\nwould fundamentally alter the program, and neither the\nADA nor the Rehabilitation Act require fundamental altera-\ntions.\n I. Background\n In keeping with the Individuals with Disabilities Educa-\ntion Act, 20 U.S.C. §§ 1400, 1412(a)(1), Wisconsin law guar-\nantees children with disabilities a “free appropriate public\neducation” and requires school districts to provide special-\neducation services according to a disabled child’s “individu-\nalized education program.” WIS. STAT. §§ 115.76(7),\n115.77(1m)(d). An individualized education program (“IEP”)\noutlines the “special education and related services” or\n“program modifications or supports” that the disabled\nstudent requires. Id. § 115.787(2)(c). Typically the school\ndistrict in which a special-needs student resides must satisfy\nthe IEP requirements unless the student transfers districts.\nId. §§ 115.76(10), 115.77.\n Wisconsin’s open-enrollment program permits such a\ntransfer. Id. § 118.51(2). The program operates on a calendar.\nIn January school districts determine how many excess\n“spaces” are available in both regular-education classrooms\nand special-education services. Id. § 118.51(5)(a)1. They can\nconsider factors like “class size limits, pupil-teacher ratios[,]\nor enrollment projections.” Id. § 118.51(5)(a)1, (5)(a)4.\nRegular-education spaces are typically determined by grade\nlevel, id. § 118.51(5)(a)1, while “special education spaces” are\ndetermined “by program or services,” WIS. ADMIN. CODE PI\n§ 36.06(5)(a).\n\f4 No. 17-3266\n\n Between February and April, interested students may\nsubmit transfer applications to up to three nonresident\ndistricts. WIS. STAT. § 118.51(3)(a)1. If an applicant has an IEP\nin place, the resident district will send a copy of the plan to\nthe nonresident district. Id. § 118.51(3)(a)1m. Beginning in\nMay nonresident districts determine which applications they\nwill accept by comparing available space to the needs of the\napplicants. Id. § 118.51(3)(a)2. For applicants with IEPs,\nnonresident districts determine whether they have the\ncapacity to meet each student’s special needs. Relevant\nfactors for this analysis include\n [w]hether the special education or related ser-\n vices described in the child’s individualized\n education program under [WIS. STAT.]\n § 115.787(2) are available in the nonresident\n school district or whether there is space availa-\n ble to provide the special education or related\n services identified in the child’s individualized\n education program, including any class size\n limits, pupil-teacher ratios[,] or enrollment pro-\n jections established by the nonresident school\n board.\nId. § 118.51(5)(a)4.\n Districts notify applicants of their acceptance or rejection\nin June. Id. § 118.51(3)(a)3. Most applications are accepted,\nincluding those submitted by students with IEPs. In 2013–\n2014, districts approved 3,718 out of 5,822 transfer applica-\ntions for students with IEPs, or roughly 64%. The same year\ndistricts approved 71% of transfer applications for students\nwithout IEPs.\n\fNo. 17-3266 5\n\n The Wisconsin Department of Public Instruction admin-\nisters the program at the state level. It promulgates the\nstandard application forms, which include a checkbox for\nwhether the student has an IEP. The Department’s guidance\nemphasizes that “[a] student may not be denied open en-\nrollment based on the student’s disability.” MARY JO\nCLEAVER, WIS. DEP’T OF PUB. INSTRUCTION, MAKING OPEN\nENROLLMENT SPECIAL EDUCATION DECISIONS NONRESIDENT\nSCHOOL DISTRICT 2 (2012). Rather, “[t]he application may\nonly be denied based on the availability of or space in the\nspecial education or related services required in the stu-\ndent’s IEP.” Id. Individual school districts administer the\nprogram at the local level. They calculate capacity and\ndetermine whether there is an available space for a given\napplicant. The Department has the power to review and\noverturn these determinations.\n The three plaintiffs—R.W., P.F., and S.B.—each applied\nto transfer to nonresident school districts under the open-\nenrollment program. R.W. and P.F. have autism while S.B.\nhas ADHD. R.W. and his twin brother applied to transfer\nfrom the Kenosha Unified School District to the Paris J1\nSchool District in 2012. Paris initially accepted both applica-\ntions but later revoked its acceptance of R.W.’s application\nbecause it lacked the capacity to meet his special needs.\n P.F. applied to transfer from the Racine School District to\nthe Muskego–Norway School District in 2014. Muskego–\nNorway had previously determined that it had 55 spaces for\nregular students but zero spaces for special-needs students.\nMoreover, under the law in effect at the time, Racine would\nbe responsible for reimbursing Muskego–Norway for the\nadditional costs required to educate P.F. in accordance with\n\f6 No. 17-3266\n\nhis IEP. So Racine declined to approve the transfer, and\nMuskego–Norway ultimately denied P.F.’s application.\n S.B. applied to transfer from the Milwaukee School Dis-\ntrict to the Shorewood School District in 2014. His applica-\ntion was initially accepted. But when Shorewood later\ndiscovered that S.B. had an IEP, it promptly revoked his\nacceptance under section 118.51(5)(a)4 and expelled him\nfrom the school.\n The three students, by their parents, filed suit against the\nState Superintendent of Public Instruction, the Wisconsin\nDepartment of Public Instruction, and the three school\ndistricts that rejected their applications: Paris J1, Muskego–\nNorway, and Shorewood. 1 The plaintiffs claimed that the\nprogram violates the ADA, the Rehabilitation Act, and the\nEqual Protection Clause. The parties filed cross-motions for\nsummary judgment, and the district judge entered summary\njudgment for the defendants on all claims except for R.W.’s\nclaim for injunctive relief against Paris. That claim was later\ndismissed, and the judge entered final judgment for the\ndefendants.\n II. Discussion\n The plaintiffs limit their appeal to their claims under the\nADA and the Rehabilitation Act; they do not seek review of\nthe judge’s ruling for the defendants on their equal-\nprotection claim. We review a summary judgment de novo.\nPain Ctr. of Se. Ind. LLC v. Origin Healthcare Sols. LLC,\n893 F.3d 454, 459 (7th Cir. 2018). Summary judgment is\n\n\n1Three other disabled children, by their parents, joined the suit below,\nbut they are not involved in this appeal.\n\fNo. 17-3266 7\n\nappropriate when “there is no genuine issue of material fact\nand the moving party is entitled to a judgment as a matter of\nlaw.” FED. R. CIV. P. 56(c).\n We first address a jurisdictional issue. S.B. now resides in\nShorewood, so he is entitled to enroll as a resident student.\nWe therefore dismiss as moot his claims for injunctive and\ndeclaratory relief against Shorewood. See CTL ex rel.\nTrebatoski v. Ashland Sch. Dist., 743 F.3d 524, 528 (7th Cir.\n2014). But his change in residence does not moot his claim\nfor damages.\n Both Title II of the ADA and section 504 of the Rehabilita-\ntion Act prohibit discrimination against disabled individu-\nals. For our purposes the statutes are “functionally\nidentical.” Wagoner v. Lemmon, 778 F.3d 586, 592 (7th Cir.\n2015). A claim under either statute has two basic elements:\n(1) the plaintiff must be a qualified individual with a disabil-\nity; and (2) the plaintiff must have been denied governmen-\ntal benefits because of his disability. See 42 U.S.C. § 12132;\n29 U.S.C. § 794(a).\n The plaintiffs do not contend that the State Superinten-\ndent, the Department, or any of the school districts inten-\ntionally deviated from the program in a discriminatory\nmanner. Rather, they claim that the program itself discrimi-\nnates on the basis of disability and that the defendants are\nliable for their role in administering it. The question before\nus, then, is whether the open-enrollment program, by its\nterms, violates federal antidiscrimination law.\n It does not. The plaintiffs argue that the program dis-\ncriminates against disabled students because it imposes\ncriteria that apply only to students with special needs. But\n\f8 No. 17-3266\n\ntheir argument rests on mischaracterizations of federal law\nand the program itself. Under federal law a program is not\ndiscriminatory just because it takes an individual’s disability\ninto account. “[A]lthough a disability is not a permissible\nground for assuming an inability to function in a particular\ncontext, the disability is not thrown out when considering if\nthe person is qualified … .” Knapp v. Nw. Univ., 101 F.3d 473,\n482 (7th Cir. 1996). Put another way, federal law “forbids\ndiscrimination based on stereotypes about a handicap, but it\ndoes not forbid decisions based on the actual attributes of\nthe handicap.” Anderson, 841 F.2d at 740.\n Under the open-enrollment program, nonresident dis-\ntricts cannot turn away applicants merely because they are\ndisabled. Instead the program allows nonresident districts to\nrealistically assess whether they have the capacity and\nresources to comply with a transfer student’s IEP. Because\ndecisions are based on a student’s special needs, the pro-\ngram hinges on “the actual attributes of the handicap” rather\nthan mere “stereotypes.” Id. It’s far more limited than a true\nopen-enrollment program. It seeks to maximize school\nchoice but only to the extent that excess capacity exists. Any\nstudent is permitted to cross-enroll if the nonresident district\nhas excess capacity. No student has the right to cross-enroll\nif the nonresident district does not.\n For the program to work, school districts must evaluate\ntheir existing space and resources and the needs of the\ntransfer applicants. Not all students are the same. A sixth\ngrader requires different services than a fourth grader, and\nthe program allows districts to categorize their capacity\naccordingly. It wouldn’t follow that the program discrimi-\nnates against fourth graders if a nonresident school district\n\fNo. 17-3266 9\n\nonly has excess capacity in the sixth grade. The same is true\nof students with special needs. If a student with an IEP\nrequires special resources, it doesn’t make any more sense to\ntreat his needs as identical to those of his peers than it would\nto treat fourth graders the same as sixth graders.\n Properly framing the program leads to an easy resolution\nof this case. To be a “qualified individual with a disability,”\na child must meet the program’s “essential eligibility re-\nquirements.” 42 U.S.C. § 12131(2). The program only permits\napplicants to transfer if the nonresident district has excess\ncapacity. If a nonresident district lacks the capacity to serve a\ndisabled applicant’s needs, the applicant does not meet the\nprogram’s essential requirements. Neither has the applicant\nbeen denied admission “by reason of [his] disability.” Id.\n§ 12132. As we’ve explained, the program considers the\ncapacity of the nonresident district to meet the requirements\noutlined in the disabled student’s IEP rather than the mere\nfact of a disability.\n Even if we analyze this case as a request for an accom-\nmodation, the plaintiffs still aren’t entitled to relief. Neither\nthe ADA nor the Rehabilitation Act requires modifications\nthat “would fundamentally alter the nature of the service,\nprogram, or activity.” 28 C.F.R. § 35.130(b)(7)(i); see also\nTennessee v. Lane, 541 U.S. 509, 532 (2004). The requirement\nthat nonresident school districts have the excess capacity to\nmeet the needs of transferring students is a fundamental\ncomponent of this program. Demanding that nonresident\nschool districts accept students regardless of their existing\ncapacity to meet student needs would upend this key fea-\nture. Federal law does not require such an overhaul.\n AFFIRMED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4360870/", "author_raw": "Diane S. Sykes"}]}	SYKES	BARRETT	DURKIN	1		{"SYKES": ", Circuit", "BARRETT": ", Circuit", "DURKIN": ", District"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4583617/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: P.F., a minor, by A.F. v. Carolyn S. Taylor\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-22\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-3266\nP.F., a minor, by A.F.,\nhis parent, et al.,\n Plaintiffs-Appellants\n\n v.\n\nCAROLYN STANFORD TAYLOR, \nState Superintendent of Public\nInstruction, et al.,\n Defendants-Appellees.\n ____________________\n\n Appeal from the United States District Court\n for the Western District of Wisconsin.\n No. 14-cv-792 — William M. Conley, Judge.\n ____________________\n\n ARGUED APRIL 20, 2018 — DECIDED JANUARY 22, 2019\n ____________________\n\n Before SYKES and BARRETT, Circuit Judges, and DURKIN,\nDistrict Judge. †\n\n We have substituted Carolyn Stanford Taylor, the current State Superin-\ntendent of Public Instruction, for Tony Evers, the prior Superintendent.\n† Of the Northern District of Illinois, sitting by designation.\n\f2 No. 17-3266\n\n SYKES, Circuit Judge. Under Wisconsin’s open-enrollment\nprogram, a public-school student can apply to transfer from\nhis resident school district to a nonresident district that has\nan available space for him. WIS. STAT. § 118.51. The program\ndistinguishes between “regular education and special educa-\ntion spaces.” Id. § 118.51(5)(a)1. If a student with a disability\nrequires special services, a nonresident district may deny the\nstudent’s transfer application if it lacks the services or space\nnecessary to meet those special needs. Id. § 118.51(5)(a)4.\n This suit concerns a group of disabled schoolchildren\nwhose transfer applications were denied because nonresi-\ndent districts determined that they could not meet the\nstudents’ special needs. The students’ parents, on their\nchildren’s behalf, sued the school districts and various state\nactors seeking injunctive, declaratory, and compensatory\nrelief under Title II of the Americans with Disabilities Act\n(“ADA”), 42 U.S.C. § 12132; section 504 of the Rehabilitation\nAct, 29 U.S.C. § 794(a); and the Equal Protection Clause,\nU.S. CONST. amend. XIV, § 1. They argued that the program\nunlawfully discriminates against disabled children because\nof their disabilities. The district judge concluded that the\nprogram did not violate federal law and entered summary\njudgment for the defendants.\n We affirm. Differential treatment of special-needs stu-\ndents doesn’t make the program unlawful. Federal law\n“forbids discrimination based on stereotypes about a handi-\ncap, but it does not forbid decisions based on the actual\nattributes of the handicap.” Anderson v. Univ. of Wis.,\n841 F.2d 737, 740 (7th Cir. 1988). The program makes deci-\nsions based on the actual needs of disabled students, so it\ncomplies with federal law. And even if we analyze the case\n\fNo. 17-3266 3\n\nas a request for an accommodation, the requested change\nwould fundamentally alter the program, and neither the\nADA nor the Rehabilitation Act require fundamental altera-\ntions.\n I. Background\n In keeping with the Individuals with Disabilities Educa-\ntion Act, 20 U.S.C. §§ 1400, 1412(a)(1), Wisconsin law guar-\nantees children with disabilities a “free appropriate public\neducation” and requires school districts to provide special-\neducation services according to a disabled child’s “individu-\nalized education program.” WIS. STAT. §§ 115.76(7),\n115.77(1m)(d). An individualized education program (“IEP”)\noutlines the “special education and related services” or\n“program modifications or supports” that the disabled\nstudent requires. Id. § 115.787(2)(c). Typically the school\ndistrict in which a special-needs student resides must satisfy\nthe IEP requirements unless the student transfers districts.\nId. §§ 115.76(10), 115.77.\n Wisconsin’s open-enrollment program permits such a\ntransfer. Id. § 118.51(2). The program operates on a calendar.\nIn January school districts determine how many excess\n“spaces” are available in both regular-education classrooms\nand special-education services. Id. § 118.51(5)(a)1. They can\nconsider factors like “class size limits, pupil-teacher ratios[,]\nor enrollment projections.” Id. § 118.51(5)(a)1, (5)(a)4.\nRegular-education spaces are typically determined by grade\nlevel, id. § 118.51(5)(a)1, while “special education spaces” are\ndetermined “by program or services,” WIS. ADMIN. CODE PI\n§ 36.06(5)(a).\n\f4 No. 17-3266\n\n Between February and April, interested students may\nsubmit transfer applications to up to three nonresident\ndistricts. WIS. STAT. § 118.51(3)(a)1. If an applicant has an IEP\nin place, the resident district will send a copy of the plan to\nthe nonresident district. Id. § 118.51(3)(a)1m. Beginning in\nMay nonresident districts determine which applications they\nwill accept by comparing available space to the needs of the\napplicants. Id. § 118.51(3)(a)2. For applicants with IEPs,\nnonresident districts determine whether they have the\ncapacity to meet each student’s special needs. Relevant\nfactors for this analysis include\n [w]hether the special education or related ser-\n vices described in the child’s individualized\n education program under [WIS. STAT.]\n § 115.787(2) are available in the nonresident\n school district or whether there is space availa-\n ble to provide the special education or related\n services identified in the child’s individualized\n education program, including any class size\n limits, pupil-teacher ratios[,] or enrollment pro-\n jections established by the nonresident school\n board.\nId. § 118.51(5)(a)4.\n Districts notify applicants of their acceptance or rejection\nin June. Id. § 118.51(3)(a)3. Most applications are accepted,\nincluding those submitted by students with IEPs. In 2013–\n2014, districts approved 3,718 out of 5,822 transfer applica-\ntions for students with IEPs, or roughly 64%. The same year\ndistricts approved 71% of transfer applications for students\nwithout IEPs.\n\fNo. 17-3266 5\n\n The Wisconsin Department of Public Instruction admin-\nisters the program at the state level. It promulgates the\nstandard application forms, which include a checkbox for\nwhether the student has an IEP. The Department’s guidance\nemphasizes that “[a] student may not be denied open en-\nrollment based on the student’s disability.” MARY JO\nCLEAVER, WIS. DEP’T OF PUB. INSTRUCTION, MAKING OPEN\nENROLLMENT SPECIAL EDUCATION DECISIONS NONRESIDENT\nSCHOOL DISTRICT 2 (2012). Rather, “[t]he application may\nonly be denied based on the availability of or space in the\nspecial education or related services required in the stu-\ndent’s IEP.” Id. Individual school districts administer the\nprogram at the local level. They calculate capacity and\ndetermine whether there is an available space for a given\napplicant. The Department has the power to review and\noverturn these determinations.\n The three plaintiffs—R.W., P.F., and S.B.—each applied\nto transfer to nonresident school districts under the open-\nenrollment program. R.W. and P.F. have autism while S.B.\nhas ADHD. R.W. and his twin brother applied to transfer\nfrom the Kenosha Unified School District to the Paris J1\nSchool District in 2012. Paris initially accepted both applica-\ntions but later revoked its acceptance of R.W.’s application\nbecause it lacked the capacity to meet his special needs.\n P.F. applied to transfer from the Racine School District to\nthe Muskego–Norway School District in 2014. Muskego–\nNorway had previously determined that it had 55 spaces for\nregular students but zero spaces for special-needs students.\nMoreover, under the law in effect at the time, Racine would\nbe responsible for reimbursing Muskego–Norway for the\nadditional costs required to educate P.F. in accordance with\n\f6 No. 17-3266\n\nhis IEP. So Racine declined to approve the transfer, and\nMuskego–Norway ultimately denied P.F.’s application.\n S.B. applied to transfer from the Milwaukee School Dis-\ntrict to the Shorewood School District in 2014. His applica-\ntion was initially accepted. But when Shorewood later\ndiscovered that S.B. had an IEP, it promptly revoked his\nacceptance under section 118.51(5)(a)4 and expelled him\nfrom the school.\n The three students, by their parents, filed suit against the\nState Superintendent of Public Instruction, the Wisconsin\nDepartment of Public Instruction, and the three school\ndistricts that rejected their applications: Paris J1, Muskego–\nNorway, and Shorewood. 1 The plaintiffs claimed that the\nprogram violates the ADA, the Rehabilitation Act, and the\nEqual Protection Clause. The parties filed cross-motions for\nsummary judgment, and the district judge entered summary\njudgment for the defendants on all claims except for R.W.’s\nclaim for injunctive relief against Paris. That claim was later\ndismissed, and the judge entered final judgment for the\ndefendants.\n II. Discussion\n The plaintiffs limit their appeal to their claims under the\nADA and the Rehabilitation Act; they do not seek review of\nthe judge’s ruling for the defendants on their equal-\nprotection claim. We review a summary judgment de novo.\nPain Ctr. of Se. Ind. LLC v. Origin Healthcare Sols. LLC,\n893 F.3d 454, 459 (7th Cir. 2018). Summary judgment is\n\n\n1Three other disabled children, by their parents, joined the suit below,\nbut they are not involved in this appeal.\n\fNo. 17-3266 7\n\nappropriate when “there is no genuine issue of material fact\nand the moving party is entitled to a judgment as a matter of\nlaw.” FED. R. CIV. P. 56(c).\n We first address a jurisdictional issue. S.B. now resides in\nShorewood, so he is entitled to enroll as a resident student.\nWe therefore dismiss as moot his claims for injunctive and\ndeclaratory relief against Shorewood. See CTL ex rel.\nTrebatoski v. Ashland Sch. Dist., 743 F.3d 524, 528 (7th Cir.\n2014). But his change in residence does not moot his claim\nfor damages.\n Both Title II of the ADA and section 504 of the Rehabilita-\ntion Act prohibit discrimination against disabled individu-\nals. For our purposes the statutes are “functionally\nidentical.” Wagoner v. Lemmon, 778 F.3d 586, 592 (7th Cir.\n2015). A claim under either statute has two basic elements:\n(1) the plaintiff must be a qualified individual with a disabil-\nity; and (2) the plaintiff must have been denied governmen-\ntal benefits because of his disability. See 42 U.S.C. § 12132;\n29 U.S.C. § 794(a).\n The plaintiffs do not contend that the State Superinten-\ndent, the Department, or any of the school districts inten-\ntionally deviated from the program in a discriminatory\nmanner. Rather, they claim that the program itself discrimi-\nnates on the basis of disability and that the defendants are\nliable for their role in administering it. The question before\nus, then, is whether the open-enrollment program, by its\nterms, violates federal antidiscrimination law.\n It does not. The plaintiffs argue that the program dis-\ncriminates against disabled students because it imposes\ncriteria that apply only to students with special needs. But\n\f8 No. 17-3266\n\ntheir argument rests on mischaracterizations of federal law\nand the program itself. Under federal law a program is not\ndiscriminatory just because it takes an individual’s disability\ninto account. “[A]lthough a disability is not a permissible\nground for assuming an inability to function in a particular\ncontext, the disability is not thrown out when considering if\nthe person is qualified … .” Knapp v. Nw. Univ., 101 F.3d 473,\n482 (7th Cir. 1996). Put another way, federal law “forbids\ndiscrimination based on stereotypes about a handicap, but it\ndoes not forbid decisions based on the actual attributes of\nthe handicap.” Anderson, 841 F.2d at 740.\n Under the open-enrollment program, nonresident dis-\ntricts cannot turn away applicants merely because they are\ndisabled. Instead the program allows nonresident districts to\nrealistically assess whether they have the capacity and\nresources to comply with a transfer student’s IEP. Because\ndecisions are based on a student’s special needs, the pro-\ngram hinges on “the actual attributes of the handicap” rather\nthan mere “stereotypes.” Id. It’s far more limited than a true\nopen-enrollment program. It seeks to maximize school\nchoice but only to the extent that excess capacity exists. Any\nstudent is permitted to cross-enroll if the nonresident district\nhas excess capacity. No student has the right to cross-enroll\nif the nonresident district does not.\n For the program to work, school districts must evaluate\ntheir existing space and resources and the needs of the\ntransfer applicants. Not all students are the same. A sixth\ngrader requires different services than a fourth grader, and\nthe program allows districts to categorize their capacity\naccordingly. It wouldn’t follow that the program discrimi-\nnates against fourth graders if a nonresident school district\n\fNo. 17-3266 9\n\nonly has excess capacity in the sixth grade. The same is true\nof students with special needs. If a student with an IEP\nrequires special resources, it doesn’t make any more sense to\ntreat his needs as identical to those of his peers than it would\nto treat fourth graders the same as sixth graders.\n Properly framing the program leads to an easy resolution\nof this case. To be a “qualified individual with a disability,”\na child must meet the program’s “essential eligibility re-\nquirements.” 42 U.S.C. § 12131(2). The program only permits\napplicants to transfer if the nonresident district has excess\ncapacity. If a nonresident district lacks the capacity to serve a\ndisabled applicant’s needs, the applicant does not meet the\nprogram’s essential requirements. Neither has the applicant\nbeen denied admission “by reason of [his] disability.” Id.\n§ 12132. As we’ve explained, the program considers the\ncapacity of the nonresident district to meet the requirements\noutlined in the disabled student’s IEP rather than the mere\nfact of a disability.\n Even if we analyze this case as a request for an accom-\nmodation, the plaintiffs still aren’t entitled to relief. Neither\nthe ADA nor the Rehabilitation Act requires modifications\nthat “would fundamentally alter the nature of the service,\nprogram, or activity.” 28 C.F.R. § 35.130(b)(7)(i); see also\nTennessee v. Lane, 541 U.S. 509, 532 (2004). The requirement\nthat nonresident school districts have the excess capacity to\nmeet the needs of transferring students is a fundamental\ncomponent of this program. Demanding that nonresident\nschool districts accept students regardless of their existing\ncapacity to meet student needs would upend this key fea-\nture. Federal law does not require such an overhaul.\n AFFIRMED.\n[END_CASE]", "role": "user" } ]
4,583,618		NLRB v. Edward L. Calvert	2019-01-22	17-1895	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before EASTERBROOK and SYKES, Circuit Judges, and BUCKLO, District Judge.", "parties": "", "opinions": [{"author": "Diane S. Sykes", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-1895\nIN RE:\n EDWARD L. CALVERT,\n Debtor-Appellee.\n\nAPPEAL OF: NATIONAL LABOR RELATIONS BOARD\n ____________________\n\n Appeal from the United States District Court for the\n Southern District of Indiana, Indianapolis Division.\n No. 1:16-cv-00161-SEB-MJD — Sarah Evans Barker, Judge.\n ____________________\n\n ARGUED JANUARY 8, 2018 — DECIDED JANUARY 22, 2019\n ____________________\n\n Before EASTERBROOK and SYKES, Circuit Judges, and\nBUCKLO, District Judge. \n SYKES, Circuit Judge. Edward Calvert was the sole owner\nand president of E.L.C. Electric, Inc., an electrical contracting\ncompany. After a labor organization unsuccessfully cam-\npaigned to unionize his company’s workforce, Calvert laid\noff most of E.L.C. Electric’s rank-and-file electricians, which\neffectively prevented future unionization attempts. The\n\n Of the Northern District of Illinois, sitting by designation.\n\n2 No. 17-1895\n\n\nNational Labor Relations Board (“NLRB”) determined that\nthe company violated the National Labor Relations Act\n(“NLRA”), which prohibits discrimination against workers\nfor exercising their statutory rights. See 29 U.S.C. § 158(a)(3).\nThe Board ordered E.L.C. Electric to compensate the electri-\ncians with backpay.\n Calvert tried to avoid the order by shifting his company’s\noperations to two new corporate entities. He didn’t succeed.\nThe NLRB discovered Calvert’s plan and held him personal-\nly responsible for the backpay award. Facing more than\n$400,000 in liability, Calvert filed for Chapter 7 bankruptcy.\n The Board challenged Calvert’s attempt to discharge the\nbackpay liability, arguing that the debt was not dischargea-\nble because it arose from a willful and malicious injury.\nSee 11 U.S.C. § 523(a)(6). Calvert conceded the willfulness\nelement but denied that he acted maliciously. The Board\ncountered by asserting that Calvert was collaterally es-\ntopped from litigating the malice issue, but it made little\neffort to establish the elements of the doctrine. Indeed, the\nBoard did not identify any specific findings in the NLRB\nruling that should be given preclusive effect. The bankrupt-\ncy judge declined to apply collateral estoppel and instead\nheld a bench trial on the issue of malice. Based on the trial\nevidence, the judge found that Calvert had not acted mali-\nciously and thus ruled that the debt was not exempt from\ndischarge.\n On appeal to the district court, the Board again raised\ncollateral estoppel but failed to analyze the elements of the\ndoctrine or provide citations to the relevant parts of the\nagency record. The district judge noted these deficiencies\nand affirmed.\n\nNo. 17-1895 3\n\n\n We likewise affirm. The Board does not challenge the ev-\nidence at trial or the bankruptcy judge’s factual findings.\nInstead it stakes its entire case on collateral estoppel. But it\npersists in providing only a generalized discussion of pre-\nclusion doctrine that is untethered to specific findings in the\nNLRB proceeding. That’s not enough to establish that\nCalvert is precluded from contesting the malice issue under\n§ 523(a)(6).\n I. Background\n In July 2002 the International Brotherhood of Electrical\nWorkers, Local 481, campaigned to become the certified\nbargaining representative for E.L.C. Electric’s rank-and-file\nelectricians. Calvert launched his own campaign to oppose\nthe Union’s efforts. When the Union lost, it filed an objection\nwith the NLRB, demanding a new vote on the ground that\nE.L.C. Electric had unlawfully meddled in the election.\n While this objection was pending, E.L.C. Electric promot-\ned two of its bargaining-unit electricians and fired the\nremaining sixteen, leaving the Union without a rank-and-file\nworkforce at the company to unionize. The Union filed a\nsecond charge with the NLRB alleging that E.L.C. Electric\nunlawfully fired the electricians for exercising their right to\nunionize.\n After a trial in April 2004, an administrative law judge\nruled that E.L.C. Electric violated sections 8(a)(1) and (3) of\nthe NLRA, 29 U.S.C. § 158(a)(1), (3). The NLRB affirmed the\nALJ’s ruling a year later. E.L.C. Elec., Inc., 344 N.L.R.B. 1200\n(2005). It determined that E.L.C. Electric violated § 158(a)(3)\nof the NLRA by firing the electricians to prevent them from\n\n4 No. 17-1895\n\n\norganizing. The NLRB ordered the company to compensate\nthe electricians with backpay.\n E.L.C. Electric never paid the award. It ceased operations\nin March 2006. The ALJ initiated supplemental proceedings\nand concluded that Calvert shuttered the firm to avoid\npaying the electricians. The judge pierced the corporate veil\nand held Calvert personally liable for $437,427 in backpay\nand interest. The NLRB adopted the judge’s findings and\nconclusions, E.L.C. Elec., Inc., 359 N.L.R.B. 255 (2012), and we\nsummarily enforced the order in July 2013.\n Calvert filed a Chapter 7 bankruptcy petition five months\nlater. See 11 U.S.C. § 727. In response the Board challenged\nCalvert’s attempt to discharge the backpay debt. It raised\nmultiple arguments but only one remains relevant. The\nBoard claimed that the debt was exempt from discharge\nbecause it arose from a “willful and malicious injury by the\ndebtor to another entity.” § 523(a)(6). Calvert did not dispute\nthat he acted willfully, but he denied that he acted mali-\nciously. The Board sought summary judgment, arguing that\nthe agency’s finding of liability under § 158(a)(3) of the\nNLRA precluded Calvert from litigating whether the debt\nwas exempt from discharge under § 523(a)(6) of the Bank-\nruptcy Code. The bankruptcy judge denied the motion,\nreasoning that § 158(a)(3) and § 523(a)(6) apply different\nlegal standards and that the NLRB proceedings lacked a\n“sufficient level of ‘specific findings’” to be given preclusive\neffect on the question whether the debt was exempt from\ndischarge—more particularly, whether Calvert had acted\nwith malice.\n The matter proceeded to a bench trial, and Calvert testi-\nfied that he laid off his employees to save money by hiring\n\nNo. 17-1895 5\n\n\nindependent contractors. The Board offered no evidence to\nrefute this explanation. The judge credited Calvert’s testi-\nmony and found that the Board failed to prove that he acted\nmaliciously. Based on these findings, the judge rejected the\nBoard’s contention that the backpay debt was exempt from\ndischarge.\n The Board appealed to the district court, once again rais-\ning issue preclusion. The district judge affirmed. She rejected\nthe preclusion argument, noting that the Board had failed to\nanalyze the elements of collateral estoppel or provide cita-\ntions to the relevant parts of the agency record that might\nsupport preclusion. On the merits the judge held that the\nbankruptcy judge’s factual findings were not clearly errone-\nous.\n II. Discussion\n We review the bankruptcy court’s findings of fact for\nclear error and conclusions of law de novo. In re Kempff,\n847 F.3d 444, 448 (7th Cir. 2017). The Bankruptcy Code does\nnot permit the discharge of debts incurred because of “will-\nful and malicious injury by the debtor to another entity or to\nthe property of another entity.” § 523(a)(6). By its terms, this\nexception to the general discharge rule requires “(1) an\ninjury caused by the debtor (2) willfully and (3) malicious-\nly.” First Weber Grp., Inc. v. Horsfall, 738 F.3d 767, 774 (7th\nCir. 2013). The Board has the burden of establishing each of\nthese elements by a preponderance of the evidence. Id.\n There’s no dispute about injury, causation, or willfulness.\nThe sole question concerns malice. It’s the Board’s burden to\nprove that Calvert “acted ‘in conscious disregard of [his]\nduties or without just cause or excuse.’” Id. (quoting In re\n\n6 No. 17-1895\n\n\nThirtyacre, 36 F.3d 697, 700 (7th Cir. 1994)) (alteration in\noriginal). The Board contends that the NLRB adjudication\ncollaterally estopped Calvert from contesting the malice\nissue in the § 523(a)(6) litigation.\n Calvert responds that the Board cannot now rely on col-\nlateral estoppel because it did not fully develop the argu-\nment in the bankruptcy and district courts. It’s true that the\nBoard’s preclusion argument was overly generalized and\nincomplete, as the district judge expressly noted. But the\nagency said enough to overcome a forfeiture, which is not\n“an overly technical appellate hurdle.” Fox v. Hayes, 600 F.3d\n819, 832 (7th Cir. 2010). While not forfeited, the argument is\nneither adequately nor correctly developed in this court—\neven after the district judge put the Board on clear notice of\nthe defects in its briefing—and that defeats the Board’s\nargument on appeal.\n Issue preclusion prevents a party from relitigating issues\nthat were resolved in a prior legal action. Adams v. City of\nIndianapolis, 742 F.3d 720, 736 (7th Cir. 2014). The party\ninvoking preclusion must show that\n (1) the issue sought to be precluded [was] the\n same as that involved in the prior litigation,\n (2) the issue [was] actually litigated, (3) the de-\n termination of the issue [was] essential to the\n final judgment, and (4) the party against whom\n estoppel is invoked [was] fully represented in\n the prior action.\nMatrix IV, Inc. v. Am. Nat’l Bank & Trust Co. of Chi., 649 F.3d\n539, 547 (7th Cir. 2011) (quoting H-D Mich., Inc. v. Top Quali-\nty Serv., Inc., 496 F.3d 755, 760 (7th Cir. 2007)).\n\nNo. 17-1895 7\n\n\n To determine whether the NLRB proceeding “involved”\nthe same issue as the bankruptcy proceeding, the first step is\nto “determine with precision what matters actually were\ndecided” in the labor proceeding. 18 CHARLES ALAN WRIGHT\nET AL., FEDERAL PRACTICE AND PROCEDURE § 4417, at 459–60\n(3d ed. 2016). This determination must be grounded in the\nactual findings and analysis in the ALJ’s ruling. See, e.g., In re\nDavis, 638 F.3d 549, 554 (7th Cir. 2011) (defining the issue\n“[i]n the context of the entire [prior] court opinion”); H-D\nMich., Inc., 496 F.3d at 760–61 (defining the issue with refer-\nence to specific statements in the prior opinion).\n It’s the Board’s job to identify the actual findings in the\nNLRB proceeding that it claims are entitled to preclusive\neffect, and it must then map those findings onto the stand-\nard for malice under § 523(a)(6). Compare First Weber Grp.,\n738 F.3d at 775 (finding preclusion on the issue of malice\nbecause the prior action’s analysis “substantially mirrored”\nthe standard under § 523(a)(6)), with Gerard v. Gerard,\n780 F.3d 806, 810–11 (7th Cir. 2015) (holding that a slander-\nof-title verdict did not preclude litigation over whether the\nunderlying injury was “willful” under § 523(a)(6) because\nthe jury instructions for the verdict required only negli-\ngence).\n The Board has not satisfied its burden. It has not identi-\nfied the specific issues that were actually decided in the\nlabor proceeding, much less mapped the ALJ’s findings onto\nthe elements of § 523(a)(6). Instead, the Board’s argument for\ncollateral estoppel is stated at a high level of generality. It\nargues that § 158(a)(3) and § 523(a)(6) ask the same general\nquestion: “Why did Calvert discharge his employees, or,\nwhat was his intent in doing so?” Like the lower courts, we\n\n8 No. 17-1895\n\n\ncannot assess the applicability of issue preclusion without a\nmore precise analysis of what was actually decided in the\nlabor proceeding as a legal and factual matter. See Econ.\nFolding Box Corp. v. Anchor Frozen Foods Corp., 515 F.3d 718,\n721 (7th Cir. 2008) (“It is not the court’s responsibility to\nresearch the law and construct the parties’ arguments for\nthem.”).\n The Board maintains that preclusion applies as a categor-\nical matter because § 158(a)(3) prohibits discrimination\nbased on antiunion animus. As the Board sees it, a factual\nfinding that Calvert acted with malice necessarily nests\nwithin the agency’s imposition of § 158(a)(3) liability. But for\npreclusion to apply, the Board must establish that the issue\nof discriminatory intent under § 158(a)(3) of the NLRA is the\nsame as the issue of malice under § 523(a)(6) of the Bank-\nruptcy Code and also that the issue of Calvert’s intent was\nactually decided in the agency proceeding. It has not done so.\nTo repeat, the Board has not grounded its argument in\nspecific findings entered in the NLRB proceeding, much less\napplied those findings to the malice standard under\n§ 523(a)(6). Moreover, as the bankruptcy judge noted, the\nagency’s determination lacks specificity on the issue of\nCalvert’s intent. The ALJ found only that the NLRB estab-\nlished a prima facie case under § 158(a)(3) that E.L.C. Electric\nfailed to rebut.\n In short, the Board has not met its burden to establish\nthat the prior agency adjudication involved and actually\ndecided the issue of whether Calvert acted with malice,\nwhich is fatal to its preclusion argument. And because the\nBoard does not challenge the bankruptcy judge’s factual\nfinding that Calvert did not act with malice, its claim that the\n\nNo. 17-1895 9\n\n\nbackpay debt is exempt from discharge under § 523(a)(6)\nnecessarily fails. Accordingly, the judgment below is\n AFFIRMED.\n\n10 No. 17-1895", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4360871/", "author_raw": "Diane S. Sykes"}, {"author": "BUCKLO, District Judge, dissenting", "type": "dissent", "text": "BUCKLO, District Judge, dissenting. I respectfully dissent.\nThe question before the bankruptcy court was whether\nCalvert acted maliciously, i.e. “without just cause or excuse,”\nwhen he laid off nearly all of his rank-and-file workforce in\nviolation of the National Labor Relations Act. First Weber\nGrp., Inc. v. Horsfall, 738 F.3d 767, 774 (7th Cir. 2013). In\nadjudicating the underlying 29 U.S.C. § 158(a)(3) discrimina-\ntion claim in the NLRB’s favor, the ALJ conducted an analy-\nsis that “substantially mirrored” the malice inquiry under\n11 U.S.C. § 523(a)(6), id. at 775, and determined that Calvert’s\nconduct was unsupported by any lawful purpose. That\nfinding should have been given preclusive effect in the\nbankruptcy court.\n My colleagues rule against the NLRB on the ground that\nits preclusion analysis is overly general. In their view, the\nBoard “has not grounded its [preclusion] argument in\nspecific findings” or established that “the issue of Calvert’s\nintent was actually decided in the agency proceeding.” But the\nNLRB points to several findings that the ALJ made regard-\ning Calvert’s intent. First, the Board cites the ALJ’s determi-\nnation that Calvert laid off his employees “because of their\nunion activities, to wit, to avoid having further NLRB pro-\nceedings and the risk that the Union might ultimately be\ncertified as the collective-bargaining representative[] of [his]\nemployees.” (Emphasis added.) The phrase “because of”\ntells us that the ALJ actually decided the issue of Calvert’s\nintent. Moreover, the ALJ’s determination that Calvert was\nmotivated by a discriminatory purpose was essential to the\nALJ’s ultimate holding. See SCA Tissue N. Am. LLC v.\nN.L.R.B., 371 F.3d 983, 988 (7th Cir. 2004) (proof of discrimi-\nnation requires evidence that “employer acted because of\n\nNo. 17-1895 11\n\n\nanti-union animus”); Bloedorn v. Francisco Foods, Inc.,\n276 F.3d 270, 290 (7th Cir. 2001) (employer’s unlawful dis-\ncriminatory motive is the “critical question” in a § 158(a)(3)\nproceeding); Van Vlerah Mech., Inc. v. N.L.R.B., 130 F.3d 1258,\n1263 (7th Cir. 1997) (“In evaluating [§ 158(a)(3) allegations],\nthe Board must determine the employer's motivation in\ntaking a particular action.”).\n Second, the Board identifies the ALJ’s determination that\nCalvert did not establish a “legitimate business reason” for\nhis conduct. Notwithstanding the ALJ’s finding that Calvert\nacted with discriminatory intent, Calvert could have avoid-\ned liability under § 158(a)(3) by showing that he had a\nlegitimate business reason for his actions. See N.L.R.B. v.\nDorothy Shamrock Coal Co., 833 F.2d 1263, 1266 (7th Cir. 1987)\n(“The employer … may avoid liability by showing that his\nactions would have been the same ‘regardless of his forbid-\nden motive.’”). Calvert attempted to make such a showing,\noffering three different explanations for the layoffs, but the\nALJ rejected all of them. Indeed, the ALJ found Calvert’s\n“shifting” justifications to be “wholly unreliable” and con-\ncluded that they “utterly failed to rebut” the Board’s evi-\ndence of “antiunion animus.” The upshot of the ALJ’s\nburden-shifting analysis was a conclusive finding on the\nissue of Calvert’s intent: specifically, that Calvert laid off his\nworkforce based on “antiunion animus” rather than “legiti-\nmate business considerations.”\n The majority’s contrary view nods to Calvert’s argument\nthat because § 158(a)(3) does not require the NLRB to prove\naffirmatively that Calvert lacked a legitimate business\nreason for his conduct, the ALJ did not conclusively decide\nthe issue of Calvert’s intent. See supra at 8 (“The ALJ found\n\n12 No. 17-1895\n\n\nonly that the NLRB established a prima facie case under\n§ 158(a)(3) that E.L.C. Electric failed to rebut.”). That inter-\npretation fails to appreciate that in the labor proceedings, the\nNLRB at all times carried the burden of establishing that\nCalvert discharged his employees “based in whole or in part\non antiunion animus.” N.L.R.B. v. Transp. Mgmt. Corp.,\n462 U.S. 393, 401 (1983), abrogated in non-relevant part by Dir.,\nOffice of Workers’ Comp. Programs, Dept. of Labor v. Greenwich\nCollieries, 512 U.S. 267, 276–78 (1994)). Moreover, it overlooks\nthe text of the ALJ’s decision, which, in a paragraph that\nopens, “[s]pecifically as to why [Calvert] made the deci-\nsion …” the ALJ concluded that Calvert’s decision to lay off\nhis workers “was motivated by … antiunion animus.”\n To establish issue preclusion, the NLRB needed to show\nthat the ALJ’s analysis of Calvert’s intent “substantially\nmirrored” the standard for malice under § 523(a)(6). Horsfall,\n738 F.3d at 775. In fact, the Board had a tougher row to hoe\nto prevail in the labor proceedings than it did before the\nbankruptcy court, since it had not only to prove Calvert’s\nimpermissible motive, but also to withstand Calvert’s af-\nfirmative defense of a legitimate business reason. Regardless\nof who bore the burden on which issue, the universe of\nevidence presented to the ALJ had to persuade him that a\nprohibited reason—not a legitimate one—motivated\nCalvert’s actions. And as the text of his decision makes clear,\npersuade him it did.\n The majority faults the Board for failing to perform a\nmore exacting exercise to “map[] the ALJ’s findings onto the\nelements of § 523(a)(6).” In my view, no heavy lifting was\nrequired to illustrate how the ALJ’s twin findings that\nCalvert acted with a prohibited motive and without a legiti-\n\nNo. 17-1895 13\n\n\nmate business reason satisfy the malice inquiry under\n§ 523(a)(6). Malice is established by proof that a debtor acted\n“without just cause or excuse.” Horsfall, 738 F.3d at 774. The\nBoard proved to the ALJ, notwithstanding Calvert’s contrary\ntestimony, that Calvert acted with antiunion animus—a\nprohibited motive. It is not clear to me what additional\nanalytical dots the Board needed to connect to show that\nCalvert’s actions lacked just cause or excuse.\n Bankruptcy courts in this circuit and elsewhere have held\nthat an agency or state court finding that the debtor acted\nwith discriminatory intent and without just cause satisfies\nthe malice standard under § 523(a)(6). In re Fogerty, 204 B.R.\n956, 962 (Bankr. N.D. Ill. 1996) (NLRB’s conclusion that the\ndebtor wrongfully terminated two employees in violation of\n§ 158(a)(3) decided the issue of malice because it was based\non the determination that the debtor lacked just cause to\ndischarge the employees and terminated them solely be-\ncause of their protected activities); In re Goldberg, 487 B.R.\n112, 129 (Bankr. E.D.N.Y. 2013) (applying collateral estoppel\nto state court’s factual findings of intentional discrimination,\nreasoning that declining to do so would “sanction the view\nthat there exists some ‘just cause or excuse’ for discrimina-\ntion … where the state court has already found otherwise”).\n When the ALJ held that Calvert discriminated against his\nemployees in violation of § 158(a)(3) and held him liable for\nthat violation, he resolved the question of whether Calvert\nhad just cause for his actions. Instead of giving the ALJ’s\nfindings about Calvert’s intent the preclusive effect they\nwere due, the bankruptcy court offered Calvert another bite\nat the apple, affording him an opportunity to relitigate his\npurported justifications for violating federal law. But the\n\n14 No. 17-1895\n\n\nALJ’s analysis left no room for finding Calvert’s conduct\njustified. Accordingly, I would hold that the bankruptcy\ncourt was precluded from reopening an inquiry into\nCalvert’s intent.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4360871/", "author_raw": "BUCKLO, District Judge, dissenting"}]}	EASTERBROOK	SYKES	BUCKLO	1		{"EASTERBROOK": ", Circuit", "SYKES": ", Circuit", "BUCKLO": ", District"}	2	1	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4583618/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: NLRB v. Edward L. Calvert\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-22\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-1895\nIN RE:\n EDWARD L. CALVERT,\n Debtor-Appellee.\n\nAPPEAL OF: NATIONAL LABOR RELATIONS BOARD\n ____________________\n\n Appeal from the United States District Court for the\n Southern District of Indiana, Indianapolis Division.\n No. 1:16-cv-00161-SEB-MJD — Sarah Evans Barker, Judge.\n ____________________\n\n ARGUED JANUARY 8, 2018 — DECIDED JANUARY 22, 2019\n ____________________\n\n Before EASTERBROOK and SYKES, Circuit Judges, and\nBUCKLO, District Judge. \n SYKES, Circuit Judge. Edward Calvert was the sole owner\nand president of E.L.C. Electric, Inc., an electrical contracting\ncompany. After a labor organization unsuccessfully cam-\npaigned to unionize his company’s workforce, Calvert laid\noff most of E.L.C. Electric’s rank-and-file electricians, which\neffectively prevented future unionization attempts. The\n\n Of the Northern District of Illinois, sitting by designation.\n\n2 No. 17-1895\n\n\nNational Labor Relations Board (“NLRB”) determined that\nthe company violated the National Labor Relations Act\n(“NLRA”), which prohibits discrimination against workers\nfor exercising their statutory rights. See 29 U.S.C. § 158(a)(3).\nThe Board ordered E.L.C. Electric to compensate the electri-\ncians with backpay.\n Calvert tried to avoid the order by shifting his company’s\noperations to two new corporate entities. He didn’t succeed.\nThe NLRB discovered Calvert’s plan and held him personal-\nly responsible for the backpay award. Facing more than\n$400,000 in liability, Calvert filed for Chapter 7 bankruptcy.\n The Board challenged Calvert’s attempt to discharge the\nbackpay liability, arguing that the debt was not dischargea-\nble because it arose from a willful and malicious injury.\nSee 11 U.S.C. § 523(a)(6). Calvert conceded the willfulness\nelement but denied that he acted maliciously. The Board\ncountered by asserting that Calvert was collaterally es-\ntopped from litigating the malice issue, but it made little\neffort to establish the elements of the doctrine. Indeed, the\nBoard did not identify any specific findings in the NLRB\nruling that should be given preclusive effect. The bankrupt-\ncy judge declined to apply collateral estoppel and instead\nheld a bench trial on the issue of malice. Based on the trial\nevidence, the judge found that Calvert had not acted mali-\nciously and thus ruled that the debt was not exempt from\ndischarge.\n On appeal to the district court, the Board again raised\ncollateral estoppel but failed to analyze the elements of the\ndoctrine or provide citations to the relevant parts of the\nagency record. The district judge noted these deficiencies\nand affirmed.\n\nNo. 17-1895 3\n\n\n We likewise affirm. The Board does not challenge the ev-\nidence at trial or the bankruptcy judge’s factual findings.\nInstead it stakes its entire case on collateral estoppel. But it\npersists in providing only a generalized discussion of pre-\nclusion doctrine that is untethered to specific findings in the\nNLRB proceeding. That’s not enough to establish that\nCalvert is precluded from contesting the malice issue under\n§ 523(a)(6).\n I. Background\n In July 2002 the International Brotherhood of Electrical\nWorkers, Local 481, campaigned to become the certified\nbargaining representative for E.L.C. Electric’s rank-and-file\nelectricians. Calvert launched his own campaign to oppose\nthe Union’s efforts. When the Union lost, it filed an objection\nwith the NLRB, demanding a new vote on the ground that\nE.L.C. Electric had unlawfully meddled in the election.\n While this objection was pending, E.L.C. Electric promot-\ned two of its bargaining-unit electricians and fired the\nremaining sixteen, leaving the Union without a rank-and-file\nworkforce at the company to unionize. The Union filed a\nsecond charge with the NLRB alleging that E.L.C. Electric\nunlawfully fired the electricians for exercising their right to\nunionize.\n After a trial in April 2004, an administrative law judge\nruled that E.L.C. Electric violated sections 8(a)(1) and (3) of\nthe NLRA, 29 U.S.C. § 158(a)(1), (3). The NLRB affirmed the\nALJ’s ruling a year later. E.L.C. Elec., Inc., 344 N.L.R.B. 1200\n(2005). It determined that E.L.C. Electric violated § 158(a)(3)\nof the NLRA by firing the electricians to prevent them from\n\n4 No. 17-1895\n\n\norganizing. The NLRB ordered the company to compensate\nthe electricians with backpay.\n E.L.C. Electric never paid the award. It ceased operations\nin March 2006. The ALJ initiated supplemental proceedings\nand concluded that Calvert shuttered the firm to avoid\npaying the electricians. The judge pierced the corporate veil\nand held Calvert personally liable for $437,427 in backpay\nand interest. The NLRB adopted the judge’s findings and\nconclusions, E.L.C. Elec., Inc., 359 N.L.R.B. 255 (2012), and we\nsummarily enforced the order in July 2013.\n Calvert filed a Chapter 7 bankruptcy petition five months\nlater. See 11 U.S.C. § 727. In response the Board challenged\nCalvert’s attempt to discharge the backpay debt. It raised\nmultiple arguments but only one remains relevant. The\nBoard claimed that the debt was exempt from discharge\nbecause it arose from a “willful and malicious injury by the\ndebtor to another entity.” § 523(a)(6). Calvert did not dispute\nthat he acted willfully, but he denied that he acted mali-\nciously. The Board sought summary judgment, arguing that\nthe agency’s finding of liability under § 158(a)(3) of the\nNLRA precluded Calvert from litigating whether the debt\nwas exempt from discharge under § 523(a)(6) of the Bank-\nruptcy Code. The bankruptcy judge denied the motion,\nreasoning that § 158(a)(3) and § 523(a)(6) apply different\nlegal standards and that the NLRB proceedings lacked a\n“sufficient level of ‘specific findings’” to be given preclusive\neffect on the question whether the debt was exempt from\ndischarge—more particularly, whether Calvert had acted\nwith malice.\n The matter proceeded to a bench trial, and Calvert testi-\nfied that he laid off his employees to save money by hiring\n\nNo. 17-1895 5\n\n\nindependent contractors. The Board offered no evidence to\nrefute this explanation. The judge credited Calvert’s testi-\nmony and found that the Board failed to prove that he acted\nmaliciously. Based on these findings, the judge rejected the\nBoard’s contention that the backpay debt was exempt from\ndischarge.\n The Board appealed to the district court, once again rais-\ning issue preclusion. The district judge affirmed. She rejected\nthe preclusion argument, noting that the Board had failed to\nanalyze the elements of collateral estoppel or provide cita-\ntions to the relevant parts of the agency record that might\nsupport preclusion. On the merits the judge held that the\nbankruptcy judge’s factual findings were not clearly errone-\nous.\n II. Discussion\n We review the bankruptcy court’s findings of fact for\nclear error and conclusions of law de novo. In re Kempff,\n847 F.3d 444, 448 (7th Cir. 2017). The Bankruptcy Code does\nnot permit the discharge of debts incurred because of “will-\nful and malicious injury by the debtor to another entity or to\nthe property of another entity.” § 523(a)(6). By its terms, this\nexception to the general discharge rule requires “(1) an\ninjury caused by the debtor (2) willfully and (3) malicious-\nly.” First Weber Grp., Inc. v. Horsfall, 738 F.3d 767, 774 (7th\nCir. 2013). The Board has the burden of establishing each of\nthese elements by a preponderance of the evidence. Id.\n There’s no dispute about injury, causation, or willfulness.\nThe sole question concerns malice. It’s the Board’s burden to\nprove that Calvert “acted ‘in conscious disregard of [his]\nduties or without just cause or excuse.’” Id. (quoting In re\n\n6 No. 17-1895\n\n\nThirtyacre, 36 F.3d 697, 700 (7th Cir. 1994)) (alteration in\noriginal). The Board contends that the NLRB adjudication\ncollaterally estopped Calvert from contesting the malice\nissue in the § 523(a)(6) litigation.\n Calvert responds that the Board cannot now rely on col-\nlateral estoppel because it did not fully develop the argu-\nment in the bankruptcy and district courts. It’s true that the\nBoard’s preclusion argument was overly generalized and\nincomplete, as the district judge expressly noted. But the\nagency said enough to overcome a forfeiture, which is not\n“an overly technical appellate hurdle.” Fox v. Hayes, 600 F.3d\n819, 832 (7th Cir. 2010). While not forfeited, the argument is\nneither adequately nor correctly developed in this court—\neven after the district judge put the Board on clear notice of\nthe defects in its briefing—and that defeats the Board’s\nargument on appeal.\n Issue preclusion prevents a party from relitigating issues\nthat were resolved in a prior legal action. Adams v. City of\nIndianapolis, 742 F.3d 720, 736 (7th Cir. 2014). The party\ninvoking preclusion must show that\n (1) the issue sought to be precluded [was] the\n same as that involved in the prior litigation,\n (2) the issue [was] actually litigated, (3) the de-\n termination of the issue [was] essential to the\n final judgment, and (4) the party against whom\n estoppel is invoked [was] fully represented in\n the prior action.\nMatrix IV, Inc. v. Am. Nat’l Bank & Trust Co. of Chi., 649 F.3d\n539, 547 (7th Cir. 2011) (quoting H-D Mich., Inc. v. Top Quali-\nty Serv., Inc., 496 F.3d 755, 760 (7th Cir. 2007)).\n\nNo. 17-1895 7\n\n\n To determine whether the NLRB proceeding “involved”\nthe same issue as the bankruptcy proceeding, the first step is\nto “determine with precision what matters actually were\ndecided” in the labor proceeding. 18 CHARLES ALAN WRIGHT\nET AL., FEDERAL PRACTICE AND PROCEDURE § 4417, at 459–60\n(3d ed. 2016). This determination must be grounded in the\nactual findings and analysis in the ALJ’s ruling. See, e.g., In re\nDavis, 638 F.3d 549, 554 (7th Cir. 2011) (defining the issue\n“[i]n the context of the entire [prior] court opinion”); H-D\nMich., Inc., 496 F.3d at 760–61 (defining the issue with refer-\nence to specific statements in the prior opinion).\n It’s the Board’s job to identify the actual findings in the\nNLRB proceeding that it claims are entitled to preclusive\neffect, and it must then map those findings onto the stand-\nard for malice under § 523(a)(6). Compare First Weber Grp.,\n738 F.3d at 775 (finding preclusion on the issue of malice\nbecause the prior action’s analysis “substantially mirrored”\nthe standard under § 523(a)(6)), with Gerard v. Gerard,\n780 F.3d 806, 810–11 (7th Cir. 2015) (holding that a slander-\nof-title verdict did not preclude litigation over whether the\nunderlying injury was “willful” under § 523(a)(6) because\nthe jury instructions for the verdict required only negli-\ngence).\n The Board has not satisfied its burden. It has not identi-\nfied the specific issues that were actually decided in the\nlabor proceeding, much less mapped the ALJ’s findings onto\nthe elements of § 523(a)(6). Instead, the Board’s argument for\ncollateral estoppel is stated at a high level of generality. It\nargues that § 158(a)(3) and § 523(a)(6) ask the same general\nquestion: “Why did Calvert discharge his employees, or,\nwhat was his intent in doing so?” Like the lower courts, we\n\n8 No. 17-1895\n\n\ncannot assess the applicability of issue preclusion without a\nmore precise analysis of what was actually decided in the\nlabor proceeding as a legal and factual matter. See Econ.\nFolding Box Corp. v. Anchor Frozen Foods Corp., 515 F.3d 718,\n721 (7th Cir. 2008) (“It is not the court’s responsibility to\nresearch the law and construct the parties’ arguments for\nthem.”).\n The Board maintains that preclusion applies as a categor-\nical matter because § 158(a)(3) prohibits discrimination\nbased on antiunion animus. As the Board sees it, a factual\nfinding that Calvert acted with malice necessarily nests\nwithin the agency’s imposition of § 158(a)(3) liability. But for\npreclusion to apply, the Board must establish that the issue\nof discriminatory intent under § 158(a)(3) of the NLRA is the\nsame as the issue of malice under § 523(a)(6) of the Bank-\nruptcy Code and also that the issue of Calvert’s intent was\nactually decided in the agency proceeding. It has not done so.\nTo repeat, the Board has not grounded its argument in\nspecific findings entered in the NLRB proceeding, much less\napplied those findings to the malice standard under\n§ 523(a)(6). Moreover, as the bankruptcy judge noted, the\nagency’s determination lacks specificity on the issue of\nCalvert’s intent. The ALJ found only that the NLRB estab-\nlished a prima facie case under § 158(a)(3) that E.L.C. Electric\nfailed to rebut.\n In short, the Board has not met its burden to establish\nthat the prior agency adjudication involved and actually\ndecided the issue of whether Calvert acted with malice,\nwhich is fatal to its preclusion argument. And because the\nBoard does not challenge the bankruptcy judge’s factual\nfinding that Calvert did not act with malice, its claim that the\n\nNo. 17-1895 9\n\n\nbackpay debt is exempt from discharge under § 523(a)(6)\nnecessarily fails. Accordingly, the judgment below is\n AFFIRMED.\n\n10 No. 17-1895\n[END_CASE]", "role": "user" } ]
4,583,620		Charlotte Robinson v. Davol, Inc.	2019-01-22	17-2068	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before SYKES and BARRETT, Circuit Judges, and GRIESBACH, Chief District Judge.", "parties": "", "opinions": [{"author": "Diane S. Sykes", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-2068\nCHARLOTTE ROBINSON and\nBOBBY DON BOWERSOCK as co-personal\nrepresentatives of the Estate of\nGeorgia J. Bowersock, deceased, and\nMARK BOWERSOCK, individually,\n Plaintiffs-Appellants,\n\n v.\n\nDAVOL INC. and C.R. BARD, INC.,\n Defendants-Appellees.\n ____________________\n\n Appeal from the United States District Court for the\n Southern District of Indiana, Indianapolis Division.\n No. 1:08-cv-01313-LJM-TAB — Larry J. McKinney, Judge.\n ____________________\n\n ARGUED FEBRUARY 13, 2018 — DECIDED JANUARY 22, 2019\n ____________________\n\n Before SYKES and BARRETT, Circuit Judges, and GRIESBACH,\nChief District Judge. ∗\n\n\n\n∗ Of the Eastern District of Wisconsin, sitting by designation.\n\f2 No. 17-2068\n\n SYKES, Circuit Judge. C.R. Bard, Inc., manufactures a sur-\ngical mesh patch used to repair hernias by implantation. The\npatch consists of two pieces of mesh that surround a flexible\nplastic ring. During a hernia repair, the patch is folded to fit\nthrough a small incision, then the plastic ring springs back\ninto its original shape and flattens the mesh against the\nabdominal wall.\n Bard recalled several versions of the patch in late 2005\nand early 2006 following reports that the plastic ring was\ndefective. Sometimes the ring broke, exposing a sharp edge\nthat could perforate the patient’s intestines. Other times the\nring caused the patch to bend and warp, exposing the patch’s\nadhesive to a patient’s viscera.\n Prior to the recall, Georgia Bowersock underwent sur-\ngery to repair a hernia, and her surgeon implanted a Bard\npatch. Roughly one year later, on October 31, 2006, she died\nof complications arising from an abdominal-wall abscess.\nHer estate and family members sued Bard and Davol Inc.,\nthe patent holder for the patch, alleging that a defect in the\npatch caused her death. To establish medical causation, the\nplaintiffs retained three experts to opine on the defect and\nthe likely cause of Mrs. Bowersock’s death.\n But the experts had trouble establishing causation. Un-\nlike defective patches in other injured patients,\nMrs. Bowersock’s patch did not adhere to her bowel or\nperforate her organs with a broken, sharp edge. One expert\ntried to present a new theory of causation: the patch had\n“buckled,” forming a stiff edge that rubbed against and\nimperceptibly perforated her internal organs.\n\fNo. 17-2068 3\n\n The defendants moved to exclude the expert testimony.\nThe judge granted the motion, finding that the “buckling”\ntheory was not sufficiently reliable. Lacking expert testimo-\nny to establish causation, the plaintiffs could not prove their\ncase, and the judge entered summary judgment for Bard and\nDavol.\n We affirm. The novel theory of causation was not peer\nreviewed, professionally presented, consistent with\nMrs. Bowersock’s medical records or autopsy, or substantiat-\ned by other cases. The judge therefore did not abuse his\ndiscretion in excluding the expert testimony. Summary\njudgment for the defendants necessarily followed.\n I. Background\n The Composix® Kugel Patch is a prescription medical\ndevice designed to repair hernias. Bard manufactures the\npatch and Davol owns the patent. (We refer to them collec-\ntively as “Bard.”) The patch consists of two layers of mesh\nthat surround one or two flexible plastic rings called\nmemory rings. The top layer is made of polypropylene; it\nadheres to the abdominal wall under the hernia and facili-\ntates healing. The bottom layer is made of smooth expanded\npolytetrafluorethylene; it faces the bowel to prevent the\npatch from attaching to the viscera. To implant the patch, a\nphysician folds the device and then inserts it into the patient\nvia a small incision. After insertion the memory ring springs\nback and flattens the patch against the abdominal wall. The\npatch remains in the body after the hernia heals.\n The patch hit the market in 2001. Users soon began re-\nporting problems with the plastic ring. Sometimes it would\naltogether fail. Other times the ring would experience “buck-\n\f4 No. 17-2068\n\nling”—that is, the mesh components of the patch would\ncontract, causing the ring to resist and bend, kink, break, or\nbuckle. Although the patch came with instructions for use\nthat contained user warnings, none of the warnings men-\ntioned any of these problems with the plastic ring. On\nDecember 22, 2005, Bard recalled all extra-large models.\nSeveral months later Bard expanded the recall to include\nother models.\n On May 25, 2005, Mrs. Bowersock sought medical treat-\nment for an abdominal-wall hernia. On July 22 Dr. Mark O.\nLynch performed surgery and implanted a Bard patch, using\na model that was included in the second recall. Dr. Lynch\ntestified that he would not have implanted the patch if he\nhad known about the defective memory rings.\n On October 4, 2006, Mrs. Bowersock went to the emer-\ngency room with an abdominal-wall abscess. The hospital\ncultured the abscess, and the lab results returned positive for\nstaphylococcus aureus. Doctors administered antibiotics,\ndrained the abscess, and released her from the hospital. She\nreturned several days later with a large wound infection.\nWhile hospitalized she suffered a cardiac arrest. She was\nresuscitated and placed on a ventilator. The hospital took a\nsecond culture that indicated the presence of staphylococcus\nepidermidis and enterococcus faecalis, or fecal bacteria. A\nthird culture returned positive for pseudomonas aeruginosa\nand yeast. Her condition deteriorated until her death on\nOctober 31, 2006.\n Dr. Roland Kohr, the county coroner, performed an au-\ntopsy that same day and determined that pneumonia and\ncomplications of that disease ultimately caused\nMrs. Bowersock’s death. In his report Dr. Kohr noted\n\fNo. 17-2068 5\n\n“abdominal adhesions” and an “abdominal wall fistula.” He\nalso noted that the “small bowel and colon [were] intact\nwithout perforation, diverticula or palpable tumors.”\nDr. Kohr later exhumed Mrs. Bowersock’s body and re-\ntrieved the implanted patch for further study.\n Bobby and Mark Bowersock (Mrs. Bowersock’s sons) and\nCharlotte Robinson (her sister) sued Bard in federal court\nraising claims of negligence, failure to warn, breach of\nimplied warranty, fraud, and intentional infliction of emo-\ntional distress. They also asserted a statutory claim for\nviolation of the Indiana Deceptive Consumer Sales Act, IND.\nCODE § 24-5-5. Bobby and Charlotte are co-representatives of\nMrs. Bowersock’s estate; Mark also asserted an individual\nclaim under the Indiana Wrongful Death Act, id. § 34-23-1-1.\nAll of the claims rested on the same essential allegations: the\npatch implanted in Mrs. Bowersock was defective and\nultimately caused her death. The district court consolidated\nthe claims under the Indiana Products Liability Act, id.\n§§ 34-20-1-1 et seq., which “govern[s] all product liability\nactions, whether the theory of liability is negligence or strict\nliability in tort,” Dague v. Piper Aircraft Corp., 418 N.E.2d 207,\n212 (Ind. 1981).\n The plaintiffs retained Dr. Stephen Ferzoco to opine on\nthe cause of death. Dr. Ferzoco has experience treating\npatients who had problems with the patches. He also has\ntestified in cases where the memory ring broke or the poly-\npropylene side of the patch adhered to the intestines. After\nexamining the patch that was retrieved from\nMrs. Bowersock, however, Dr. Ferzoco conceded that neither\nof those problems had occurred here. He instead developed\na new theory to account for her injury: the ring had buckled\n\f6 No. 17-2068\n\nbut stayed intact, and the raised portion of the mesh\n“rubb[ed] up against the bowel causing a fistula or break\nand then seal[ed] up prior to explantation or discovery of the\nmesh in the bowel.” The parties and the district judge re-\nferred to this as the “nidus” theory (meaning the location or\nfocus of an infection), so we do the same; here it describes\nthe location where Dr. Ferzoco theorized that the buckled\nring rubbed against the bowel. Dr. Ferzoco also testified that\nhe could rule out several other possible causes of death,\nincluding cross-contamination of fecal matter, fecal matter\nentering through the skin, obesity, diabetes, and chronic\nobstructive pulmonary disease.\n Dr. Ferzoco’s theory was novel: he had never before pre-\nsented it in a formal or professional setting and could not\nidentify published medical literature discussing it. Though\nhe claimed to have seen this particular malfunction occur in\nother patients, he declined to identify the patients or pro-\nduce their medical records. Crucially, he admitted that there\nwas no evidence in the medical records or autopsy report of\nbowel erosion or perforation.\n The plaintiffs also retained Dr. William Hyman, a profes-\nsor of biomedical engineering. He opined that the memory\nring’s design was inherently dangerous, that Bard failed to\nadequately test the patch, and that feasible alternative\ndesigns were available. He also speculated that based on the\ndefective design and Dr. Ferzoco’s medical testimony, the\nring buckling likely caused the bowel injury. He identified\ntwo important limitations in his testimony, however. First,\nhe admitted that he never examined or viewed images of\nMrs. Bowersock’s patch. Second, he is “not a microbiologist\n\fNo. 17-2068 7\n\nand [was] not offering an independent opinion on the mi-\ncrobiology of her infection.”\n Finally, the plaintiffs retained Dr. Kohr, the coroner. He\nreiterated in his deposition that the autopsy did not reveal\nany visible breaches of the small bowel or colon. He clari-\nfied, however, that “there could have been superficial\nbreaches scarred over with additional inflammation” and\nthat “extensive adhesions in the suprapubic area [and] lower\nabdomen” suggested the “possibility” of a breach. He also\ntestified that at the time of the autopsy, he wasn’t aware of\nthe problems with the patch or Bard’s recalls. Dr. Kohr\nconcluded that there was a “reasonable medical probability”\nthat the patch caused Mrs. Bowersock’s death.\n Bard moved to exclude the causation opinions offered by\neach of these experts, arguing that (1) Dr. Ferzoco’s nidus\ntheory was not reliable; (2) Dr. Hyman’s opinion was un-\nsupported by the medical records; and (3) the plaintiffs\nfailed to timely disclose Dr. Kohr as an expert under Rule 26\nof the Federal Rules of Civil Procedure. Bard also sought\nsummary judgment, arguing the plaintiffs could not prove\nthat the patch or its warnings were defective or caused\nMrs. Bowersock’s death.\n The judge granted the motion to exclude the experts. He\nruled that Dr. Ferzoco’s nidus theory failed to meet the\nreliability threshold under Rule 702 of the Federal Rules of\nEvidence. He also held that Dr. Hyman was not qualified to\noffer an opinion about medical causation and that the plain-\ntiffs’ failure to disclose Dr. Kohr as an expert precluded\nthem from calling him to testify in that capacity. That left the\nplaintiffs without a causation expert—a requirement to\n\f8 No. 17-2068\n\nprove the element of medical causation under Indiana law—\nso the judge entered summary judgment for Bard.\n II. Discussion\n We normally review a summary judgment de novo, but\nour review is “slightly more nuanced” when summary\njudgment follows from a decision to exclude expert testimo-\nny. Higgins v. Koch Dev. Corp., 794 F.3d 697, 701 (7th Cir.\n2015). Our first question is whether the judge properly\napplied the Daubert framework for evaluating the admissibil-\nity of expert testimony. Id. (citing Daubert v. Merrell Dow\nPharm., Inc., 509 U.S. 579 (1993)). We then review for abuse of\ndiscretion the judge’s decision to exclude the expert witness.\nId.\n The plaintiffs must establish causation to prove a viola-\ntion of the Indiana Products Liability Act. IND. CODE § 34-20-\n1-1. Under Indiana law “questions of medical causation of a\nparticular injury are questions of science necessarily de-\npendent on the testimony of physicians and surgeons\nlearned in such matters.” Higgins, 794 F.3d at 703 (quoting\nArmstrong v. Cerestar USA, Inc., 775 N.E.2d 360, 366 (Ind. Ct.\nApp. 2002)). “[W]hen there is no obvious origin to an injury\nand it has multiple potential etiologies, expert testimony is\nnecessary to establish causation.” Id. (quotation marks\nomitted).\n The key expert testimony is that of Dr. Ferzoco; without\nit the plaintiffs cannot establish medical causation. They\nconcede as much. They do not challenge the exclusion of\nDr. Kohr as an expert based on their procedural violation,\nand they acknowledge that Dr. Hyman’s opinion “does not,\nin and of itself, establish medical causation.” We therefore\n\fNo. 17-2068 9\n\nfocus our attention on the exclusion of Dr. Ferzoco’s testi-\nmony under Rule 702.\n An expert’s opinion is permitted if:\n (a) the expert’s scientific, technical, or other\n specialized knowledge will help the trier of\n fact to understand the evidence or to determine\n a fact in issue;\n (b) the testimony is based on sufficient facts or\n data;\n (c) the testimony is the product of reliable\n principles and methods; and\n (d) the expert has reliably applied the princi-\n ples and methods to the facts of the case.\nFED. R. EVID. 702.\n The familiar Daubert two-step framework applies to de-\ntermine whether the requirements of Rule 702 have been\nsatisfied. 509 U.S. at 593–94. The proponent of the expert\ntestimony must first establish that “the proposed witness\nwould testify to valid scientific, technical, or other special-\nized knowledge.” Ammons v. Aramark Unif. Servs., Inc.,\n368 F.3d 809, 816 (7th Cir. 2004) (internal quotation marks\nomitted). The proponent must then show that the expert\ntestimony will assist the trier of fact. Id. At step one the\njudge evaluates whether the expert’s theory has been\n“(1) tested, (2) subjected to peer review and publication,\n(3) analyzed for known or potential error rate, and/or is\n(4) generally accepted within the specific scientific field.”\nLapsley v. Xtek, Inc., 689 F.3d 802, 810 (7th Cir. 2012). At step\ntwo the judge evaluates “whether the proposed scientific\n\f10 No. 17-2068\n\ntestimony fits the issue to which the expert is testifying.”\nUnited States v. Hall, 165 F.3d 1095, 1102 (7th Cir. 1999).\n The judge properly applied the Rule 702 and Daubert\nstandards in addressing Bard’s motion. He summarized\nDr. Ferzoco’s theory that the patch buckled and rubbed\nagainst Mrs. Bowersock’s colon, causing fecal matter to\nescape through an opening that either closed prior to dis-\ncovery or was not visible to the naked eye. He then ex-\nplained why this novel theory of causation wasn’t reliable.\nTo begin, the theory wasn’t tested, subjected to peer review,\nor described in medical literature. See Lapsley, 689 F.3d at\n810. Moreover, the phenomena that Dr. Ferzoco described\nwere not found in Mrs. Bowersock’s medical records or\nautopsy report. Last, the judge discounted Dr. Ferzoco’s\ncontention that he had previously treated patients injured in\nthis manner, explaining that the claim was not substantiated\nwith identified patients or records. See Olinger v. U.S. Golf\nAss’n, 52 F. Supp. 2d 947, 950 (N.D. Ind. 1999) (“The court\ncannot evaluate the reliability of the undisclosed methodol-\nogy or of the principles that support the methodology.”).\n On appeal the plaintiffs contend that Dr. Ferzoco’s meth-\nod was the equivalent of a differential diagnosis, which is an\n“accepted and valid methodology.” Myers v. Ill. Cent. R.R.\nCo., 629 F.3d 639, 644 (7th Cir. 2010). Put in simple terms, a\ndifferential diagnosis “provides a framework in which all\nreasonable hypotheses are ‘ruled in’ as possible causes of a\nmedical problem and some of these possible causes are then\n‘ruled out’ to the extent scientific evidence makes it appro-\npriate to do so.” Ervin v. Johnson & Johnson, Inc., 492 F.3d 901,\n903 (7th Cir. 2007). The plaintiffs didn’t raise this argument\nat summary judgment, however. They first used the term\n\fNo. 17-2068 11\n\n“differential diagnosis” in their motion to alter or amend the\njudgment. That’s too late to preserve an argument for ap-\npeal. Cf. Green v. Whiteco Indus., Inc., 17 F.3d 199, 201 n.4 (7th\nCir. 1994) (“[R]aising [an] argument for the first time in the\nmotion for reconsideration is not adequate to preserve the\nissue for appeal and definitively waives it.”).\n The plaintiffs insist that they presented the argument be-\nlow, just without using the term “differential diagnosis.”\nThey point to their argument at summary judgment that\nDr. Ferzoco’s opinions were “founded on reliable methods,\nexperience[,] and data.” That’s far too general a statement to\nsituate their expert’s opinion in the specific domain of\ndifferential-diagnosis methodology. See Fednav Int’l Ltd. v.\nCont’l Ins. Co., 624 F.3d 834, 841 (7th Cir. 2010) (explaining\nthat the failure to present a specific argument below results\nin waiver, even if the argument “may have been before the\ndistrict court in more general terms”).\n Even if preserved, the argument fails on the merits.\nThough differential diagnosis is widely accepted as a general\nmatter, an expert’s decision to “rule in” or “rule out” poten-\ntial causes must itself be “scientifically valid.” Ervin, 492 F.3d\nat 904. In other words, Dr. Ferzoco needed to establish the\nreliability of his nidus theory in order to “rule in” the buck-\nling as a potential cause of Mrs. Bowersock’s death. As\nwe’ve noted, the judge identified several reasons why\nDr. Ferzoco’s nidus theory is not sufficiently reliable.\n The plaintiffs also argue that a scientific theory should\nnot be rejected solely because it lacks peer review. See Smith\nv. Ford Motor Co., 215 F.3d 713, 720 (7th Cir. 2000). But the\njudge gave multiple reasons for his decision, including the\nlack of corroborating evidence in Mrs. Bowersock’s medical\n\f12 No. 17-2068\n\nrecords and autopsy report. Along the same lines, the plain-\ntiffs repeatedly assert that the lack of scientific literature\nsupporting the expert’s theory goes to the weight, not the\nadmissibility, of his testimony. That’s not the correct stand-\nard. Rule 702 and Daubert require the judge to act as a vigor-\nous gatekeeper to ensure the reliability of expert testimony.\nSee Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149 (1999).\n In sum, the plaintiffs cannot prove medical causation\nwithout Dr. Ferzoco’s testimony. The record reflects that the\njudge properly applied the Daubert framework and soundly\nexercised his discretion to exclude it. It follows that Bard\nwas entitled to summary judgment.\n AFFIRMED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4360873/", "author_raw": "Diane S. Sykes"}]}	SYKES	BARRETT	GRIESBACH	1		{"SYKES": ", Circuit", "BARRETT": ", Circuit", "GRIESBACH": ", Chief District"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4583620/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Charlotte Robinson v. Davol, Inc.\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-22\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-2068\nCHARLOTTE ROBINSON and\nBOBBY DON BOWERSOCK as co-personal\nrepresentatives of the Estate of\nGeorgia J. Bowersock, deceased, and\nMARK BOWERSOCK, individually,\n Plaintiffs-Appellants,\n\n v.\n\nDAVOL INC. and C.R. BARD, INC.,\n Defendants-Appellees.\n ____________________\n\n Appeal from the United States District Court for the\n Southern District of Indiana, Indianapolis Division.\n No. 1:08-cv-01313-LJM-TAB — Larry J. McKinney, Judge.\n ____________________\n\n ARGUED FEBRUARY 13, 2018 — DECIDED JANUARY 22, 2019\n ____________________\n\n Before SYKES and BARRETT, Circuit Judges, and GRIESBACH,\nChief District Judge. ∗\n\n\n\n∗ Of the Eastern District of Wisconsin, sitting by designation.\n\f2 No. 17-2068\n\n SYKES, Circuit Judge. C.R. Bard, Inc., manufactures a sur-\ngical mesh patch used to repair hernias by implantation. The\npatch consists of two pieces of mesh that surround a flexible\nplastic ring. During a hernia repair, the patch is folded to fit\nthrough a small incision, then the plastic ring springs back\ninto its original shape and flattens the mesh against the\nabdominal wall.\n Bard recalled several versions of the patch in late 2005\nand early 2006 following reports that the plastic ring was\ndefective. Sometimes the ring broke, exposing a sharp edge\nthat could perforate the patient’s intestines. Other times the\nring caused the patch to bend and warp, exposing the patch’s\nadhesive to a patient’s viscera.\n Prior to the recall, Georgia Bowersock underwent sur-\ngery to repair a hernia, and her surgeon implanted a Bard\npatch. Roughly one year later, on October 31, 2006, she died\nof complications arising from an abdominal-wall abscess.\nHer estate and family members sued Bard and Davol Inc.,\nthe patent holder for the patch, alleging that a defect in the\npatch caused her death. To establish medical causation, the\nplaintiffs retained three experts to opine on the defect and\nthe likely cause of Mrs. Bowersock’s death.\n But the experts had trouble establishing causation. Un-\nlike defective patches in other injured patients,\nMrs. Bowersock’s patch did not adhere to her bowel or\nperforate her organs with a broken, sharp edge. One expert\ntried to present a new theory of causation: the patch had\n“buckled,” forming a stiff edge that rubbed against and\nimperceptibly perforated her internal organs.\n\fNo. 17-2068 3\n\n The defendants moved to exclude the expert testimony.\nThe judge granted the motion, finding that the “buckling”\ntheory was not sufficiently reliable. Lacking expert testimo-\nny to establish causation, the plaintiffs could not prove their\ncase, and the judge entered summary judgment for Bard and\nDavol.\n We affirm. The novel theory of causation was not peer\nreviewed, professionally presented, consistent with\nMrs. Bowersock’s medical records or autopsy, or substantiat-\ned by other cases. The judge therefore did not abuse his\ndiscretion in excluding the expert testimony. Summary\njudgment for the defendants necessarily followed.\n I. Background\n The Composix® Kugel Patch is a prescription medical\ndevice designed to repair hernias. Bard manufactures the\npatch and Davol owns the patent. (We refer to them collec-\ntively as “Bard.”) The patch consists of two layers of mesh\nthat surround one or two flexible plastic rings called\nmemory rings. The top layer is made of polypropylene; it\nadheres to the abdominal wall under the hernia and facili-\ntates healing. The bottom layer is made of smooth expanded\npolytetrafluorethylene; it faces the bowel to prevent the\npatch from attaching to the viscera. To implant the patch, a\nphysician folds the device and then inserts it into the patient\nvia a small incision. After insertion the memory ring springs\nback and flattens the patch against the abdominal wall. The\npatch remains in the body after the hernia heals.\n The patch hit the market in 2001. Users soon began re-\nporting problems with the plastic ring. Sometimes it would\naltogether fail. Other times the ring would experience “buck-\n\f4 No. 17-2068\n\nling”—that is, the mesh components of the patch would\ncontract, causing the ring to resist and bend, kink, break, or\nbuckle. Although the patch came with instructions for use\nthat contained user warnings, none of the warnings men-\ntioned any of these problems with the plastic ring. On\nDecember 22, 2005, Bard recalled all extra-large models.\nSeveral months later Bard expanded the recall to include\nother models.\n On May 25, 2005, Mrs. Bowersock sought medical treat-\nment for an abdominal-wall hernia. On July 22 Dr. Mark O.\nLynch performed surgery and implanted a Bard patch, using\na model that was included in the second recall. Dr. Lynch\ntestified that he would not have implanted the patch if he\nhad known about the defective memory rings.\n On October 4, 2006, Mrs. Bowersock went to the emer-\ngency room with an abdominal-wall abscess. The hospital\ncultured the abscess, and the lab results returned positive for\nstaphylococcus aureus. Doctors administered antibiotics,\ndrained the abscess, and released her from the hospital. She\nreturned several days later with a large wound infection.\nWhile hospitalized she suffered a cardiac arrest. She was\nresuscitated and placed on a ventilator. The hospital took a\nsecond culture that indicated the presence of staphylococcus\nepidermidis and enterococcus faecalis, or fecal bacteria. A\nthird culture returned positive for pseudomonas aeruginosa\nand yeast. Her condition deteriorated until her death on\nOctober 31, 2006.\n Dr. Roland Kohr, the county coroner, performed an au-\ntopsy that same day and determined that pneumonia and\ncomplications of that disease ultimately caused\nMrs. Bowersock’s death. In his report Dr. Kohr noted\n\fNo. 17-2068 5\n\n“abdominal adhesions” and an “abdominal wall fistula.” He\nalso noted that the “small bowel and colon [were] intact\nwithout perforation, diverticula or palpable tumors.”\nDr. Kohr later exhumed Mrs. Bowersock’s body and re-\ntrieved the implanted patch for further study.\n Bobby and Mark Bowersock (Mrs. Bowersock’s sons) and\nCharlotte Robinson (her sister) sued Bard in federal court\nraising claims of negligence, failure to warn, breach of\nimplied warranty, fraud, and intentional infliction of emo-\ntional distress. They also asserted a statutory claim for\nviolation of the Indiana Deceptive Consumer Sales Act, IND.\nCODE § 24-5-5. Bobby and Charlotte are co-representatives of\nMrs. Bowersock’s estate; Mark also asserted an individual\nclaim under the Indiana Wrongful Death Act, id. § 34-23-1-1.\nAll of the claims rested on the same essential allegations: the\npatch implanted in Mrs. Bowersock was defective and\nultimately caused her death. The district court consolidated\nthe claims under the Indiana Products Liability Act, id.\n§§ 34-20-1-1 et seq., which “govern[s] all product liability\nactions, whether the theory of liability is negligence or strict\nliability in tort,” Dague v. Piper Aircraft Corp., 418 N.E.2d 207,\n212 (Ind. 1981).\n The plaintiffs retained Dr. Stephen Ferzoco to opine on\nthe cause of death. Dr. Ferzoco has experience treating\npatients who had problems with the patches. He also has\ntestified in cases where the memory ring broke or the poly-\npropylene side of the patch adhered to the intestines. After\nexamining the patch that was retrieved from\nMrs. Bowersock, however, Dr. Ferzoco conceded that neither\nof those problems had occurred here. He instead developed\na new theory to account for her injury: the ring had buckled\n\f6 No. 17-2068\n\nbut stayed intact, and the raised portion of the mesh\n“rubb[ed] up against the bowel causing a fistula or break\nand then seal[ed] up prior to explantation or discovery of the\nmesh in the bowel.” The parties and the district judge re-\nferred to this as the “nidus” theory (meaning the location or\nfocus of an infection), so we do the same; here it describes\nthe location where Dr. Ferzoco theorized that the buckled\nring rubbed against the bowel. Dr. Ferzoco also testified that\nhe could rule out several other possible causes of death,\nincluding cross-contamination of fecal matter, fecal matter\nentering through the skin, obesity, diabetes, and chronic\nobstructive pulmonary disease.\n Dr. Ferzoco’s theory was novel: he had never before pre-\nsented it in a formal or professional setting and could not\nidentify published medical literature discussing it. Though\nhe claimed to have seen this particular malfunction occur in\nother patients, he declined to identify the patients or pro-\nduce their medical records. Crucially, he admitted that there\nwas no evidence in the medical records or autopsy report of\nbowel erosion or perforation.\n The plaintiffs also retained Dr. William Hyman, a profes-\nsor of biomedical engineering. He opined that the memory\nring’s design was inherently dangerous, that Bard failed to\nadequately test the patch, and that feasible alternative\ndesigns were available. He also speculated that based on the\ndefective design and Dr. Ferzoco’s medical testimony, the\nring buckling likely caused the bowel injury. He identified\ntwo important limitations in his testimony, however. First,\nhe admitted that he never examined or viewed images of\nMrs. Bowersock’s patch. Second, he is “not a microbiologist\n\fNo. 17-2068 7\n\nand [was] not offering an independent opinion on the mi-\ncrobiology of her infection.”\n Finally, the plaintiffs retained Dr. Kohr, the coroner. He\nreiterated in his deposition that the autopsy did not reveal\nany visible breaches of the small bowel or colon. He clari-\nfied, however, that “there could have been superficial\nbreaches scarred over with additional inflammation” and\nthat “extensive adhesions in the suprapubic area [and] lower\nabdomen” suggested the “possibility” of a breach. He also\ntestified that at the time of the autopsy, he wasn’t aware of\nthe problems with the patch or Bard’s recalls. Dr. Kohr\nconcluded that there was a “reasonable medical probability”\nthat the patch caused Mrs. Bowersock’s death.\n Bard moved to exclude the causation opinions offered by\neach of these experts, arguing that (1) Dr. Ferzoco’s nidus\ntheory was not reliable; (2) Dr. Hyman’s opinion was un-\nsupported by the medical records; and (3) the plaintiffs\nfailed to timely disclose Dr. Kohr as an expert under Rule 26\nof the Federal Rules of Civil Procedure. Bard also sought\nsummary judgment, arguing the plaintiffs could not prove\nthat the patch or its warnings were defective or caused\nMrs. Bowersock’s death.\n The judge granted the motion to exclude the experts. He\nruled that Dr. Ferzoco’s nidus theory failed to meet the\nreliability threshold under Rule 702 of the Federal Rules of\nEvidence. He also held that Dr. Hyman was not qualified to\noffer an opinion about medical causation and that the plain-\ntiffs’ failure to disclose Dr. Kohr as an expert precluded\nthem from calling him to testify in that capacity. That left the\nplaintiffs without a causation expert—a requirement to\n\f8 No. 17-2068\n\nprove the element of medical causation under Indiana law—\nso the judge entered summary judgment for Bard.\n II. Discussion\n We normally review a summary judgment de novo, but\nour review is “slightly more nuanced” when summary\njudgment follows from a decision to exclude expert testimo-\nny. Higgins v. Koch Dev. Corp., 794 F.3d 697, 701 (7th Cir.\n2015). Our first question is whether the judge properly\napplied the Daubert framework for evaluating the admissibil-\nity of expert testimony. Id. (citing Daubert v. Merrell Dow\nPharm., Inc., 509 U.S. 579 (1993)). We then review for abuse of\ndiscretion the judge’s decision to exclude the expert witness.\nId.\n The plaintiffs must establish causation to prove a viola-\ntion of the Indiana Products Liability Act. IND. CODE § 34-20-\n1-1. Under Indiana law “questions of medical causation of a\nparticular injury are questions of science necessarily de-\npendent on the testimony of physicians and surgeons\nlearned in such matters.” Higgins, 794 F.3d at 703 (quoting\nArmstrong v. Cerestar USA, Inc., 775 N.E.2d 360, 366 (Ind. Ct.\nApp. 2002)). “[W]hen there is no obvious origin to an injury\nand it has multiple potential etiologies, expert testimony is\nnecessary to establish causation.” Id. (quotation marks\nomitted).\n The key expert testimony is that of Dr. Ferzoco; without\nit the plaintiffs cannot establish medical causation. They\nconcede as much. They do not challenge the exclusion of\nDr. Kohr as an expert based on their procedural violation,\nand they acknowledge that Dr. Hyman’s opinion “does not,\nin and of itself, establish medical causation.” We therefore\n\fNo. 17-2068 9\n\nfocus our attention on the exclusion of Dr. Ferzoco’s testi-\nmony under Rule 702.\n An expert’s opinion is permitted if:\n (a) the expert’s scientific, technical, or other\n specialized knowledge will help the trier of\n fact to understand the evidence or to determine\n a fact in issue;\n (b) the testimony is based on sufficient facts or\n data;\n (c) the testimony is the product of reliable\n principles and methods; and\n (d) the expert has reliably applied the princi-\n ples and methods to the facts of the case.\nFED. R. EVID. 702.\n The familiar Daubert two-step framework applies to de-\ntermine whether the requirements of Rule 702 have been\nsatisfied. 509 U.S. at 593–94. The proponent of the expert\ntestimony must first establish that “the proposed witness\nwould testify to valid scientific, technical, or other special-\nized knowledge.” Ammons v. Aramark Unif. Servs., Inc.,\n368 F.3d 809, 816 (7th Cir. 2004) (internal quotation marks\nomitted). The proponent must then show that the expert\ntestimony will assist the trier of fact. Id. At step one the\njudge evaluates whether the expert’s theory has been\n“(1) tested, (2) subjected to peer review and publication,\n(3) analyzed for known or potential error rate, and/or is\n(4) generally accepted within the specific scientific field.”\nLapsley v. Xtek, Inc., 689 F.3d 802, 810 (7th Cir. 2012). At step\ntwo the judge evaluates “whether the proposed scientific\n\f10 No. 17-2068\n\ntestimony fits the issue to which the expert is testifying.”\nUnited States v. Hall, 165 F.3d 1095, 1102 (7th Cir. 1999).\n The judge properly applied the Rule 702 and Daubert\nstandards in addressing Bard’s motion. He summarized\nDr. Ferzoco’s theory that the patch buckled and rubbed\nagainst Mrs. Bowersock’s colon, causing fecal matter to\nescape through an opening that either closed prior to dis-\ncovery or was not visible to the naked eye. He then ex-\nplained why this novel theory of causation wasn’t reliable.\nTo begin, the theory wasn’t tested, subjected to peer review,\nor described in medical literature. See Lapsley, 689 F.3d at\n810. Moreover, the phenomena that Dr. Ferzoco described\nwere not found in Mrs. Bowersock’s medical records or\nautopsy report. Last, the judge discounted Dr. Ferzoco’s\ncontention that he had previously treated patients injured in\nthis manner, explaining that the claim was not substantiated\nwith identified patients or records. See Olinger v. U.S. Golf\nAss’n, 52 F. Supp. 2d 947, 950 (N.D. Ind. 1999) (“The court\ncannot evaluate the reliability of the undisclosed methodol-\nogy or of the principles that support the methodology.”).\n On appeal the plaintiffs contend that Dr. Ferzoco’s meth-\nod was the equivalent of a differential diagnosis, which is an\n“accepted and valid methodology.” Myers v. Ill. Cent. R.R.\nCo., 629 F.3d 639, 644 (7th Cir. 2010). Put in simple terms, a\ndifferential diagnosis “provides a framework in which all\nreasonable hypotheses are ‘ruled in’ as possible causes of a\nmedical problem and some of these possible causes are then\n‘ruled out’ to the extent scientific evidence makes it appro-\npriate to do so.” Ervin v. Johnson & Johnson, Inc., 492 F.3d 901,\n903 (7th Cir. 2007). The plaintiffs didn’t raise this argument\nat summary judgment, however. They first used the term\n\fNo. 17-2068 11\n\n“differential diagnosis” in their motion to alter or amend the\njudgment. That’s too late to preserve an argument for ap-\npeal. Cf. Green v. Whiteco Indus., Inc., 17 F.3d 199, 201 n.4 (7th\nCir. 1994) (“[R]aising [an] argument for the first time in the\nmotion for reconsideration is not adequate to preserve the\nissue for appeal and definitively waives it.”).\n The plaintiffs insist that they presented the argument be-\nlow, just without using the term “differential diagnosis.”\nThey point to their argument at summary judgment that\nDr. Ferzoco’s opinions were “founded on reliable methods,\nexperience[,] and data.” That’s far too general a statement to\nsituate their expert’s opinion in the specific domain of\ndifferential-diagnosis methodology. See Fednav Int’l Ltd. v.\nCont’l Ins. Co., 624 F.3d 834, 841 (7th Cir. 2010) (explaining\nthat the failure to present a specific argument below results\nin waiver, even if the argument “may have been before the\ndistrict court in more general terms”).\n Even if preserved, the argument fails on the merits.\nThough differential diagnosis is widely accepted as a general\nmatter, an expert’s decision to “rule in” or “rule out” poten-\ntial causes must itself be “scientifically valid.” Ervin, 492 F.3d\nat 904. In other words, Dr. Ferzoco needed to establish the\nreliability of his nidus theory in order to “rule in” the buck-\nling as a potential cause of Mrs. Bowersock’s death. As\nwe’ve noted, the judge identified several reasons why\nDr. Ferzoco’s nidus theory is not sufficiently reliable.\n The plaintiffs also argue that a scientific theory should\nnot be rejected solely because it lacks peer review. See Smith\nv. Ford Motor Co., 215 F.3d 713, 720 (7th Cir. 2000). But the\njudge gave multiple reasons for his decision, including the\nlack of corroborating evidence in Mrs. Bowersock’s medical\n\f12 No. 17-2068\n\nrecords and autopsy report. Along the same lines, the plain-\ntiffs repeatedly assert that the lack of scientific literature\nsupporting the expert’s theory goes to the weight, not the\nadmissibility, of his testimony. That’s not the correct stand-\nard. Rule 702 and Daubert require the judge to act as a vigor-\nous gatekeeper to ensure the reliability of expert testimony.\nSee Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149 (1999).\n In sum, the plaintiffs cannot prove medical causation\nwithout Dr. Ferzoco’s testimony. The record reflects that the\njudge properly applied the Daubert framework and soundly\nexercised his discretion to exclude it. It follows that Bard\nwas entitled to summary judgment.\n AFFIRMED.\n[END_CASE]", "role": "user" } ]
4,583,628		United States v. Scott Griffith	2019-01-22	18-1310	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before ROVNER, SYKES, and BARRETT, Circuit Judges.", "parties": "", "opinions": [{"author": "Ilana Kara Diamond Rovner", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\nNo. 18-1310\n\nUNITED STATES OF AMERICA,\n Plaintiff-Appellee,\n\n v.\n\n\nSCOTT B. GRIFFITH,\n Defendant-Appellant.\n\n\n Appeal from the United States District Court for the\n Central District of Illinois.\n No. 4:16-cr-40010-SLD-1 — Sara Darrow, Judge.\n\n\n\n ARGUED NOVEMBER 7, 2018 — DECIDED JANUARY 22, 2019\n\n\n Before ROVNER, SYKES, and BARRETT, Circuit Judges.\n ROVNER, Circuit Judge. Scott B. Griffith pled guilty to a\nthree-count indictment that charged him with receiving,\ndistributing, and possessing child pornography. The district\ncourt sentenced him to 240 months’ imprisonment on each\ncount, to run concurrently, as well as a fifteen-year period of\nsupervised release. On appeal, he asserts that the district court\n\f2 No. 18-1310\n\ncommitted procedural error in calculating the guidelines\nrange, and that his resulting sentence is substantively unrea-\nsonable. We affirm.\n I.\n Griffith was charged with: (1) receiving four digital images\nof child pornography, in violation of 18 U.S.C.\n§§ 2252A(a)(2)(A) and 2252A(b)(1); (2) distributing three digital\nimages of child pornography (different than those received), in\nviolation of 18 U.S.C. §§ 2252A(a)(2)(A) and 2252A(b)(1); and\n(3) possessing visual depictions of child pornography in\naddition to those described in the receipt and distribution\ncounts, in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and\n2252A(b)(2). In total, Griffith’s crimes included 477 photo-\ngraphs and eleven videos of unspecified length. All counts\nwere alleged to have occurred during a three-month period\nnear the end of 2015, and all involved the use of Twitter\naccounts. Each time Twitter detected child pornography on\nGriffith’s account, the company closed the account and\nreported the inappropriate activity. Griffith created more than\ntwenty-five Twitter accounts during that three-month period\nin an attempt to thwart the company’s efforts, directing his\nfollowers from one account to the next.\n Prior to committing these crimes, Griffith, who was fifty-\ntwo years old at the time of his arrest, had amassed enough of\na criminal history to land him in Category V, only one level\nbelow the top of the scale. At the age of twenty, he had\nsexually abused a child under the age of thirteen, a conviction\nthat was too old to be counted for criminal history purposes.\nThe vast majority of his remaining criminal history was\n\fNo. 18-1310 3\n\ncomposed of driving offenses and thefts, some minor and some\nmore serious. Additionally, two women had sought and\nreceived orders of protection against Griffith after he threat-\nened them. His criminal record prior to this offense spanned\nnearly thirty years and a dozen of the previous offenses were\neither too old or too minor to be included in the calculation of\nhis criminal history.\n The Presentence Investigation Report (“PSR”)1 noted that\nthe base offense level for the three grouped counts was 22,\nciting U.S.S.G. § 2G2.2. An analysis of specific offense charac-\nteristics added 18 levels for a total of 40. In particular, the PSR\nadded two levels under section 2G2.2(b)(2) because the\nmaterial involved a prepubescent minor. Griffith solicited child\npornography on his Twitter pages in exchange for access to his\nown collection, leading to a five-level increase under section\n2G2.2(b)(3)(b), for distributing the pictures in exchange for\nnon-pecuniary, valuable consideration, a transaction some-\ntimes called a “peer-to-peer exchange.” Four levels were added\nunder section 2G2.2(b)(4)(A) and (B) for material that depicted\nviolence and sexual abuse or exploitation of a toddler. The use\nof a computer contributed two levels under section 2G2.2(b)(6).\nFinally, each of the eleven videos was treated as equivalent to\nseventy-five images which, when added to the 477 photo-\ngraphs, pushed the total images over 600 and added five levels\n\n1\n There are two versions of the PSR in the record, an original and a revised\nversion. The revised version includes an addendum that details the\ndefendant’s objections to the first PSR and the government’s response, as\nwell as some other revisions and recommendations. For the purpose of\ncalculating the offense level and criminal history category, the PSRs are\nessentially the same. We will note any differences when relevant.\n\f4 No. 18-1310\n\nunder section 2G2.2(b)(7)(D), for an adjusted offense level of\n40. After deducting three levels for acceptance of responsibil-\nity, the PSR set the total offense level at 37. Both versions of the\nPSR noted that the guidelines range for a total offense level of\n37 and a criminal history Category V is 324 to 405 months’\nimprisonment. Both PSRs took the position that Griffith’s prior\nconviction for sexual abuse qualified him for enhanced\nmandatory minimums under 18 U.S.C. § 2252A(b)(1), noting\nthat the enhanced terms for Counts I and II were fifteen to\nforty years. Count III carried a minimum of ten years and a\nmaximum of twenty years, assuming that the enhanced\npenalty applied. The revised PSR incorrectly stated that,\nwithout the enhanced mandatory minimums, the guidelines\nrange would be 240 months. Neither party noticed that error\nuntil the sentencing hearing, as we discuss below.\n Griffith filed a number of objections to the PSR in the\ndistrict court, largely falling into three categories. First, he\nobjected to the application of the “specific offense characteris-\ntics” provisions that added eighteen levels to the base offense\nlevel. He contended that the additional levels assessed against\nhim were based on “arbitrary, unreasonable and unwarranted\nsentencing factors which are inherent in the offense of convic-\ntion, and patently inconsistent with the purposes of Title 18\nU.S.C. Section 3553(a).” R. 18 at 1–2. He complained that the\n“rote application” of those provisions “yields a draconian\nguideline sentencing range of 324–405 months (27 to 33.75\nyears),” a result he characterized as “wholly incompatible”\nwith the section 3553(a) factors and “offensive to the ends of\njustice.” R. 18, at 2. The crux of Griffith’s objection was that\n\fNo. 18-1310 5\n\nguideline 2G2.2 is fundamentally flawed and that a below-\nguidelines sentence was warranted:\n In sum, Mr. Griffith’s objections to the specific\n offense characteristics being assessed against him\n are that the child pornography guidelines, as ap-\n plied to him on the facts of this case, are excessively\n harsh and fundamentally incompatible with the\n §3553(a) sentencing factors. … Accordingly, Mr.\n Griffith asks [for] a substantial downward variance\n from the guidelines at the time of sentencing.\nR. 18 at 6-7. Griffith’s second major objection was that the court\nshould not apply enhanced mandatory minimum terms\nagainst him based on his prior criminal sexual abuse convic-\ntion under 18 U.S.C. § 2252A(b)(1). The district court agreed\nwith this position, finding that the enhanced mandatory\nminimum terms did not apply to him, and that issue is not a\npart of this appeal. Finally, he maintained that Criminal\nHistory Category V over-represented his criminal history.\n At the sentencing hearing, after resolving the enhanced\nmandatory minimum issue in Griffith’s favor, the district court\nnoted that the statutory range for Counts I and II was five to\ntwenty years, and zero to twenty years for Count III. The court\nthen found that the total offense level was 37, the Criminal\nHistory was Category V, and the guidelines range (which had\nbeen calculated to be 324 to 405 months) would become 240\nmonths because of the statutory cap for each count. The court\nasked if the parties concurred “with the Court’s recitation as to\nthe applicable statutory and guideline provisions,” and both\n\f6 No. 18-1310\n\nparties replied, “Yes.” R. 37, Sent. Tr. at 19. The court then\nadopted the revised PSR and its addendum.\n After the parties presented argument regarding Griffith’s\nobjections and the section 3553(a) factors, the government\nasked the court to clarify the guidelines range. The government\npointed out that because Griffith pled guilty to three separate\noffenses involving discrete materials, his sentences could run\nconsecutively, meaning there was a sixty-year statutory cap,\nnot a twenty-year maximum. After asking the probation officer\nto check the calculation, the court announced:\n Yes. The gist is if I ran it consecutively, I could\n impose a guideline range sentence which would be\n the 324 to 405 months. In other words, the statutory\n cap here would be 60 years—…—if run consecu-\n tively. I understand that. … Do you want me to\n refine that? I mean, I think it was—I guess all I’ll say\n is I think it was an error for me to say earlier that the\n guideline range becomes the statutory cap because\n they could be run consecutively. … Is that an accu-\n rate assessment?\nR. 37, Sent. Tr. at 37-38. Defense counsel responded, “Yes.” Id.\n After the defendant made a statement, the court addressed\nthe section 3553(a) factors. In the midst of a thorough discus-\nsion of those factors, the court exhaustively addressed Grif-\nfith’s arguments regarding “the fairness of these guidelines.”\nR. 37, Sent. Tr. at 48. Catering her analysis to the facts of\nGriffith’s offenses, the judge found appropriate the two-level\nenhancement for material depicting prepubescent children, the\nfive-level addition for peer-to-peer exchange of material, and\n\fNo. 18-1310 7\n\nthe four-level bump for the violence of the images. The court\nnoted that it discounted the two-level enhancement for use of\na computer in nearly all cases because it was part of every\noffense and so “not applying the two-level enhancement in\nterms of a variance would be appropriate for use of [a] com-\nputer.” R. 37, Sent. Tr. at 49. On the number of images, the\ncourt noted that it lacked information regarding the length of\nthe videos or what was depicted on them, making it difficult to\ncompute a final number. She declined to use the “boilerplate”\ncomputation of 75 images per video, finding that a four-level\nenhancement for the number of images would be more\nappropriate than the five levels indicated by the guidelines for\n477 photographs and eleven videos:\n I think that the—so, the variance, if you want to call\n it that, for my recalculated guidelines would be 37.\n I think that would be the appropriate reflection of\n the seriousness of your conduct here.\nR. 37, Sent. Tr. at 50. The court then found that Criminal\nHistory Category V appropriately reflected Griffith’s criminal\nconduct over a lengthy span of time. Before announcing the\nsentence, the court remarked that Griffith was not the typical\nchild pornography defendant because most were level 34 with\na Criminal History Category I but Griffith was “squarely” a\nCategory V. R. 37, Sent. Tr. at 57. After defense counsel\nconfirmed that the court had addressed all of Griffith’s\narguments in mitigation, the judge sentenced Griffith to 240\nmonths’ imprisonment on each count, to run concurrently, as\nwell as a term of supervised release. Griffith appeals.\n\f8 No. 18-1310\n\n II.\n On appeal, Griffith contends that the district court commit-\nted procedural error when it failed to correctly calculate the\nguidelines sentence before imposing the 240-month sentence.\nHe also argues that the court imposed a substantively unrea-\nsonable sentence. We apply the abuse of discretion standard in\nreviewing whether sentencing decisions are reasonable. Gall v.\nUnited States, 552 U.S. 38, 46 (2007); United States v. Smith, 860\nF.3d 508, 514 (7th Cir. 2017). We first must ensure that the\ndistrict court committed no significant procedural error, such\nas incorrectly calculating the guidelines range, failing to\nconsider the section 3553(a) factors, selecting a sentence based\non clearly erroneous facts, or failing to explain adequately the\nchosen sentence. Gall, 552 U.S. at 51; Smith, 860 F.3d at 514.\nWhether the district court committed procedural error is a\nquestion of law that we review de novo. Smith, 860 F.3d at 514;\nUnited States v. Mendoza, 510 F.3d 749, 754 (7th Cir. 2007).\n In raising his procedural challenge, Griffith first asserts that\nthe court did not correctly calculate the guidelines range when\nit initially adopted the PSR addendum’s erroneous guidelines\ncalculation. He also maintains that the court failed to rule on a\nfinal guidelines range before pronouncing sentence. These\nobjections do not hold up to a fair reading of the sentencing\ntranscript.\n After adopting the revised PSR and its addendum during\nthe sentencing hearing, the court became aware that the\ndocument contained an error. The revised PSR calculated the\nguidelines range as 324 to 405 months if the enhanced manda-\ntory minimum applied, and as 240 months if that statutory\n\fNo. 18-1310 9\n\nenhancement did not apply. Prior to the hearing, neither party\nnoticed that the statutory cap was not limited to 240 months.\nGriffith had pled guilty to three counts, each with its own cap\nof twenty years (or 240 months), and those terms could be\nimposed consecutively for a total of sixty years. As we noted\nabove, the government alerted the judge to this error after she\nrejected the statutory enhancement and otherwise adopted the\nPSR. The court agreed with the government’s proposed\ncorrection and then found that the statutory maximum was\nsixty years. As the judge clarified at the sentencing hearing,\nthat meant that the guidelines range was not capped at twenty\nyears but was in fact 324 to 405 months, which was well within\nthe sixty-year cap. Both parties expressly agreed that this was\nan accurate assessment of the guidelines. In other words, the\ncourt was no longer adopting the PSR in its entirety but was\namending its earlier ruling to account for the corrected\nstatutory cap of sixty years, making the correct guidelines\nrange 324 to 405 months. An argument that the court erred in\ninitially adopting the erroneous PSR is a non-starter. The court\nrecognized and corrected that error before announcing the\nsentence. Any initial misstep was harmless because it did not\naffect the court’s choice of sentence. United States v. Morris, 775\nF.3d 882, 885 (7th Cir. 2015).\n Griffith next claims that the court re-analyzed the five\nspecific offense characteristics for section 2G2.2 but never\nrecalculated the guidelines to reflect that new analysis. He is\nreferring, of course, to the district court’s discussion of a\ndownward “variance” equivalent to two levels for use of a\ncomputer and one level for the total number of images. In\ncontext, however, it is clear that the court was not re-analyzing\n\f10 No. 18-1310\n\nthe specific offense characteristics in order to correct the\nguidelines calculation but rather was expressing disagreement\nwith the properly calculated guidelines sentence.\n After United States v. Booker, 543 U.S. 220 (2005), a sentenc-\ning judge has the discretion to disagree with a particular\nprovision of the guidelines and to impose a non-guidelines\nsentence that, in his or her judgment, is more consistent with\nthe statutory sentencing factors set out in section 3553(a).\nKimbrough v. United States, 552 U.S. 85 (2007); Smith, 860 F.3d at\n517; United States v. Rosales, 813 F.3d 634, 637 (7th Cir. 2016). In\nthe context of addressing the section 3553(a) factors, the court\nhere explained that it routinely varied downward the equiva-\nlent of two levels because child pornography offenses virtually\nalways involve the use of a computer, making the application\nof section 2G2.2(b)(6) inappropriate, in the court’s opinion. The\ncourt similarly disagreed with the “boilerplate” addition of\nseventy-five images for each video, allowing for a downward\nvariance equivalent to one level. The court then stated that “the\nvariance, if you want to call it that, for my recalculated\nguidelines would be 37.” R. 37, Sent. Tr. at 50. That mention of\nlevel 37 was likely a misstatement because it did not take into\naccount that the court had also adopted the PSR recommenda-\ntion to allow a three-level reduction for acceptance of responsi-\nbility, and so the variance was analogous to level 34, not level\n37. The misstatement had no effect on the sentence, however,\nbecause the court treated the variance as equivalent to a level\n34 sentence, not a level 37 sentence.\n In expressing its policy disagreement with the application\nof certain specific offense characteristics, the court simply\nanalogized the variance to reductions in particular specific\n\fNo. 18-1310 11\n\noffense characteristic levels. The court made this adjustment\nunder section 3553(a), and had no occasion to recalculate the\nfinal guidelines level. In Criminal History Category V, the\nanalogous level 34 sentence yields a guidelines range of 235 to\n293 months. The final sentence of 240 months is on the low end\nof a level 34 sentence and a full 84 months below the bottom of\nthe properly calculated guidelines range. If, as Griffith argues,\nthe court had mistakenly failed to account for acceptance of\nresponsibility when deciding how much to vary, the sentence\nwould have been significantly higher. We have no doubt that\nthe court was not correcting the guidelines calculation but was\nsimply explaining a downward variance under section 3553(a)\nfrom the properly calculated range by way of analogy to the\nguidelines.\n We emphasize that it was not necessary for the court to\nanalogize to the guidelines when explaining the downward\nvariance. United States v. Kuczora, 910 F.3d 904, 908 (7th Cir.\n2018) (“the sentencing court need not frame its explanation of\na sentence in terms of a departure from the guidelines range,\nbut may instead focus on the appropriateness of the sentence\nunder § 3553.”) (quoting United States v. Courtland, 642 F.3d\n545, 550 (7th Cir. 2011)). A court need only explain why a\nsentence is appropriate under the statutory criteria. Kuczora,\n910 F.3d at 908. So long as a court uses the properly calculated\nguidelines range as a starting point, it may explain a decision\nto vary from the range with reference to the section 3553(a)\nfactors alone. Kuczora, 910 F.3d at 908.\n We also note that the court had not found any error in the\nPSR’s calculation of the guidelines (other than the statutory cap\nissue we noted earlier) and had no reason to recalculate the\n\f12 No. 18-1310\n\nguidelines. The court’s Statement of Reasons explaining the\nsentence makes clear that the court intended for the three-level\nreduction to be a variance because of a policy disagreement\nwith the properly calculated guidelines, not a change to the\nguidelines calculation. R. 27, at 3, ¶ VI.D. And Griffith points\nto no error in the district court’s guidelines calculation here.\nIndeed, Griffith did not challenge the factual basis of the\nguidelines calculation or the final offense level in the district\ncourt. He argued instead that the resulting offense level was\ninconsistent with the purposes of sentencing expressed in\nsection 3553(a). He did not deny, for example, that some of the\nphotographs depicted prepubescent minors, or that certain\nimages portrayed violence towards and sexual abuse of\ntoddlers. He conceded that he offered access to his Twitter\naccounts in exchange for additional child pornography, that he\nused a computer and that his offenses involved more than 600\nimages when calculated under guidelines standards. But in\nconceding the basic facts underlying the calculation and the\nresult of the \"rote application\" of the guidelines provisions, he\nobjected only that the result produced a draconian and\nunjustified sentence. In light of all of the circumstances, the\nonly reasonable reading of the sentencing transcript is that the\ncourt understood and announced a correct calculation of the\nguidelines and then varied downward by analogy to certain\nguidelines factors during the discussion of the statutory\nfactors.\n Finally, we can quickly dispense with any claim that the\nfinal sentence was substantively unreasonable. When assessing\nthe substantive reasonableness of a sentence under the abuse\nof discretion standard, we presume that a within-guidelines\n\fNo. 18-1310 13\n\nsentence is reasonable. Rita v. United States, 551 U.S. 338,\n347–56 (2007); United States v. Moore, 851 F.3d 666, 674 (7th Cir.\n2017). That same presumption obviously applies to a below-\nguidelines sentence, such as the one imposed here. Moore, 851\nF.3d at 674. Griffith bears the burden of rebutting that pre-\nsumption by demonstrating that the sentence is unreasonably\nhigh in light of the section 3553(a) factors. United States v.\nMykytiuk, 415 F.3d 606, 608 (7th Cir. 2005).\n Griffith attempts to surmount that challenge by arguing\nthat his collection of child pornography was relatively small;\nthat his crimes involved no contact offenses; that a twenty-year\nterm was a de facto life sentence for a man of his age and health;\nthat the sentence was unnecessary to deter recidivism because\nof his age and the lengthy term of supervised release; and that\nsection 2G2.2 encourages unreasonably harsh sentences. The\ndistrict court carefully considered and addressed each of these\narguments, and Griffith’s claim on appeal amounts to a request\nthat we substitute our judgment for that of the district court. In\nthe usual course, it would be the government, not the defen-\ndant, arguing that the court abused its discretion by granting\na significantly below-guidelines sentence. In any case, the\ndistrict court did not abuse its discretion in granting Griffith an\neighty-four month break from the bottom of the properly-\ncalculated guidelines sentencing range, and the sentence was\nsubstantively reasonable.\n AFFIRMED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4360881/", "author_raw": "Ilana Kara Diamond Rovner"}]}	ROVNER	SYKES	BARRETT	1		{"ROVNER": ", Circuit", "SYKES": ", Circuit", "BARRETT": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4583628/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: United States v. Scott Griffith\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-22\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\nNo. 18-1310\n\nUNITED STATES OF AMERICA,\n Plaintiff-Appellee,\n\n v.\n\n\nSCOTT B. GRIFFITH,\n Defendant-Appellant.\n\n\n Appeal from the United States District Court for the\n Central District of Illinois.\n No. 4:16-cr-40010-SLD-1 — Sara Darrow, Judge.\n\n\n\n ARGUED NOVEMBER 7, 2018 — DECIDED JANUARY 22, 2019\n\n\n Before ROVNER, SYKES, and BARRETT, Circuit Judges.\n ROVNER, Circuit Judge. Scott B. Griffith pled guilty to a\nthree-count indictment that charged him with receiving,\ndistributing, and possessing child pornography. The district\ncourt sentenced him to 240 months’ imprisonment on each\ncount, to run concurrently, as well as a fifteen-year period of\nsupervised release. On appeal, he asserts that the district court\n\f2 No. 18-1310\n\ncommitted procedural error in calculating the guidelines\nrange, and that his resulting sentence is substantively unrea-\nsonable. We affirm.\n I.\n Griffith was charged with: (1) receiving four digital images\nof child pornography, in violation of 18 U.S.C.\n§§ 2252A(a)(2)(A) and 2252A(b)(1); (2) distributing three digital\nimages of child pornography (different than those received), in\nviolation of 18 U.S.C. §§ 2252A(a)(2)(A) and 2252A(b)(1); and\n(3) possessing visual depictions of child pornography in\naddition to those described in the receipt and distribution\ncounts, in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and\n2252A(b)(2). In total, Griffith’s crimes included 477 photo-\ngraphs and eleven videos of unspecified length. All counts\nwere alleged to have occurred during a three-month period\nnear the end of 2015, and all involved the use of Twitter\naccounts. Each time Twitter detected child pornography on\nGriffith’s account, the company closed the account and\nreported the inappropriate activity. Griffith created more than\ntwenty-five Twitter accounts during that three-month period\nin an attempt to thwart the company’s efforts, directing his\nfollowers from one account to the next.\n Prior to committing these crimes, Griffith, who was fifty-\ntwo years old at the time of his arrest, had amassed enough of\na criminal history to land him in Category V, only one level\nbelow the top of the scale. At the age of twenty, he had\nsexually abused a child under the age of thirteen, a conviction\nthat was too old to be counted for criminal history purposes.\nThe vast majority of his remaining criminal history was\n\fNo. 18-1310 3\n\ncomposed of driving offenses and thefts, some minor and some\nmore serious. Additionally, two women had sought and\nreceived orders of protection against Griffith after he threat-\nened them. His criminal record prior to this offense spanned\nnearly thirty years and a dozen of the previous offenses were\neither too old or too minor to be included in the calculation of\nhis criminal history.\n The Presentence Investigation Report (“PSR”)1 noted that\nthe base offense level for the three grouped counts was 22,\nciting U.S.S.G. § 2G2.2. An analysis of specific offense charac-\nteristics added 18 levels for a total of 40. In particular, the PSR\nadded two levels under section 2G2.2(b)(2) because the\nmaterial involved a prepubescent minor. Griffith solicited child\npornography on his Twitter pages in exchange for access to his\nown collection, leading to a five-level increase under section\n2G2.2(b)(3)(b), for distributing the pictures in exchange for\nnon-pecuniary, valuable consideration, a transaction some-\ntimes called a “peer-to-peer exchange.” Four levels were added\nunder section 2G2.2(b)(4)(A) and (B) for material that depicted\nviolence and sexual abuse or exploitation of a toddler. The use\nof a computer contributed two levels under section 2G2.2(b)(6).\nFinally, each of the eleven videos was treated as equivalent to\nseventy-five images which, when added to the 477 photo-\ngraphs, pushed the total images over 600 and added five levels\n\n1\n There are two versions of the PSR in the record, an original and a revised\nversion. The revised version includes an addendum that details the\ndefendant’s objections to the first PSR and the government’s response, as\nwell as some other revisions and recommendations. For the purpose of\ncalculating the offense level and criminal history category, the PSRs are\nessentially the same. We will note any differences when relevant.\n\f4 No. 18-1310\n\nunder section 2G2.2(b)(7)(D), for an adjusted offense level of\n40. After deducting three levels for acceptance of responsibil-\nity, the PSR set the total offense level at 37. Both versions of the\nPSR noted that the guidelines range for a total offense level of\n37 and a criminal history Category V is 324 to 405 months’\nimprisonment. Both PSRs took the position that Griffith’s prior\nconviction for sexual abuse qualified him for enhanced\nmandatory minimums under 18 U.S.C. § 2252A(b)(1), noting\nthat the enhanced terms for Counts I and II were fifteen to\nforty years. Count III carried a minimum of ten years and a\nmaximum of twenty years, assuming that the enhanced\npenalty applied. The revised PSR incorrectly stated that,\nwithout the enhanced mandatory minimums, the guidelines\nrange would be 240 months. Neither party noticed that error\nuntil the sentencing hearing, as we discuss below.\n Griffith filed a number of objections to the PSR in the\ndistrict court, largely falling into three categories. First, he\nobjected to the application of the “specific offense characteris-\ntics” provisions that added eighteen levels to the base offense\nlevel. He contended that the additional levels assessed against\nhim were based on “arbitrary, unreasonable and unwarranted\nsentencing factors which are inherent in the offense of convic-\ntion, and patently inconsistent with the purposes of Title 18\nU.S.C. Section 3553(a).” R. 18 at 1–2. He complained that the\n“rote application” of those provisions “yields a draconian\nguideline sentencing range of 324–405 months (27 to 33.75\nyears),” a result he characterized as “wholly incompatible”\nwith the section 3553(a) factors and “offensive to the ends of\njustice.” R. 18, at 2. The crux of Griffith’s objection was that\n\fNo. 18-1310 5\n\nguideline 2G2.2 is fundamentally flawed and that a below-\nguidelines sentence was warranted:\n In sum, Mr. Griffith’s objections to the specific\n offense characteristics being assessed against him\n are that the child pornography guidelines, as ap-\n plied to him on the facts of this case, are excessively\n harsh and fundamentally incompatible with the\n §3553(a) sentencing factors. … Accordingly, Mr.\n Griffith asks [for] a substantial downward variance\n from the guidelines at the time of sentencing.\nR. 18 at 6-7. Griffith’s second major objection was that the court\nshould not apply enhanced mandatory minimum terms\nagainst him based on his prior criminal sexual abuse convic-\ntion under 18 U.S.C. § 2252A(b)(1). The district court agreed\nwith this position, finding that the enhanced mandatory\nminimum terms did not apply to him, and that issue is not a\npart of this appeal. Finally, he maintained that Criminal\nHistory Category V over-represented his criminal history.\n At the sentencing hearing, after resolving the enhanced\nmandatory minimum issue in Griffith’s favor, the district court\nnoted that the statutory range for Counts I and II was five to\ntwenty years, and zero to twenty years for Count III. The court\nthen found that the total offense level was 37, the Criminal\nHistory was Category V, and the guidelines range (which had\nbeen calculated to be 324 to 405 months) would become 240\nmonths because of the statutory cap for each count. The court\nasked if the parties concurred “with the Court’s recitation as to\nthe applicable statutory and guideline provisions,” and both\n\f6 No. 18-1310\n\nparties replied, “Yes.” R. 37, Sent. Tr. at 19. The court then\nadopted the revised PSR and its addendum.\n After the parties presented argument regarding Griffith’s\nobjections and the section 3553(a) factors, the government\nasked the court to clarify the guidelines range. The government\npointed out that because Griffith pled guilty to three separate\noffenses involving discrete materials, his sentences could run\nconsecutively, meaning there was a sixty-year statutory cap,\nnot a twenty-year maximum. After asking the probation officer\nto check the calculation, the court announced:\n Yes. The gist is if I ran it consecutively, I could\n impose a guideline range sentence which would be\n the 324 to 405 months. In other words, the statutory\n cap here would be 60 years—…—if run consecu-\n tively. I understand that. … Do you want me to\n refine that? I mean, I think it was—I guess all I’ll say\n is I think it was an error for me to say earlier that the\n guideline range becomes the statutory cap because\n they could be run consecutively. … Is that an accu-\n rate assessment?\nR. 37, Sent. Tr. at 37-38. Defense counsel responded, “Yes.” Id.\n After the defendant made a statement, the court addressed\nthe section 3553(a) factors. In the midst of a thorough discus-\nsion of those factors, the court exhaustively addressed Grif-\nfith’s arguments regarding “the fairness of these guidelines.”\nR. 37, Sent. Tr. at 48. Catering her analysis to the facts of\nGriffith’s offenses, the judge found appropriate the two-level\nenhancement for material depicting prepubescent children, the\nfive-level addition for peer-to-peer exchange of material, and\n\fNo. 18-1310 7\n\nthe four-level bump for the violence of the images. The court\nnoted that it discounted the two-level enhancement for use of\na computer in nearly all cases because it was part of every\noffense and so “not applying the two-level enhancement in\nterms of a variance would be appropriate for use of [a] com-\nputer.” R. 37, Sent. Tr. at 49. On the number of images, the\ncourt noted that it lacked information regarding the length of\nthe videos or what was depicted on them, making it difficult to\ncompute a final number. She declined to use the “boilerplate”\ncomputation of 75 images per video, finding that a four-level\nenhancement for the number of images would be more\nappropriate than the five levels indicated by the guidelines for\n477 photographs and eleven videos:\n I think that the—so, the variance, if you want to call\n it that, for my recalculated guidelines would be 37.\n I think that would be the appropriate reflection of\n the seriousness of your conduct here.\nR. 37, Sent. Tr. at 50. The court then found that Criminal\nHistory Category V appropriately reflected Griffith’s criminal\nconduct over a lengthy span of time. Before announcing the\nsentence, the court remarked that Griffith was not the typical\nchild pornography defendant because most were level 34 with\na Criminal History Category I but Griffith was “squarely” a\nCategory V. R. 37, Sent. Tr. at 57. After defense counsel\nconfirmed that the court had addressed all of Griffith’s\narguments in mitigation, the judge sentenced Griffith to 240\nmonths’ imprisonment on each count, to run concurrently, as\nwell as a term of supervised release. Griffith appeals.\n\f8 No. 18-1310\n\n II.\n On appeal, Griffith contends that the district court commit-\nted procedural error when it failed to correctly calculate the\nguidelines sentence before imposing the 240-month sentence.\nHe also argues that the court imposed a substantively unrea-\nsonable sentence. We apply the abuse of discretion standard in\nreviewing whether sentencing decisions are reasonable. Gall v.\nUnited States, 552 U.S. 38, 46 (2007); United States v. Smith, 860\nF.3d 508, 514 (7th Cir. 2017). We first must ensure that the\ndistrict court committed no significant procedural error, such\nas incorrectly calculating the guidelines range, failing to\nconsider the section 3553(a) factors, selecting a sentence based\non clearly erroneous facts, or failing to explain adequately the\nchosen sentence. Gall, 552 U.S. at 51; Smith, 860 F.3d at 514.\nWhether the district court committed procedural error is a\nquestion of law that we review de novo. Smith, 860 F.3d at 514;\nUnited States v. Mendoza, 510 F.3d 749, 754 (7th Cir. 2007).\n In raising his procedural challenge, Griffith first asserts that\nthe court did not correctly calculate the guidelines range when\nit initially adopted the PSR addendum’s erroneous guidelines\ncalculation. He also maintains that the court failed to rule on a\nfinal guidelines range before pronouncing sentence. These\nobjections do not hold up to a fair reading of the sentencing\ntranscript.\n After adopting the revised PSR and its addendum during\nthe sentencing hearing, the court became aware that the\ndocument contained an error. The revised PSR calculated the\nguidelines range as 324 to 405 months if the enhanced manda-\ntory minimum applied, and as 240 months if that statutory\n\fNo. 18-1310 9\n\nenhancement did not apply. Prior to the hearing, neither party\nnoticed that the statutory cap was not limited to 240 months.\nGriffith had pled guilty to three counts, each with its own cap\nof twenty years (or 240 months), and those terms could be\nimposed consecutively for a total of sixty years. As we noted\nabove, the government alerted the judge to this error after she\nrejected the statutory enhancement and otherwise adopted the\nPSR. The court agreed with the government’s proposed\ncorrection and then found that the statutory maximum was\nsixty years. As the judge clarified at the sentencing hearing,\nthat meant that the guidelines range was not capped at twenty\nyears but was in fact 324 to 405 months, which was well within\nthe sixty-year cap. Both parties expressly agreed that this was\nan accurate assessment of the guidelines. In other words, the\ncourt was no longer adopting the PSR in its entirety but was\namending its earlier ruling to account for the corrected\nstatutory cap of sixty years, making the correct guidelines\nrange 324 to 405 months. An argument that the court erred in\ninitially adopting the erroneous PSR is a non-starter. The court\nrecognized and corrected that error before announcing the\nsentence. Any initial misstep was harmless because it did not\naffect the court’s choice of sentence. United States v. Morris, 775\nF.3d 882, 885 (7th Cir. 2015).\n Griffith next claims that the court re-analyzed the five\nspecific offense characteristics for section 2G2.2 but never\nrecalculated the guidelines to reflect that new analysis. He is\nreferring, of course, to the district court’s discussion of a\ndownward “variance” equivalent to two levels for use of a\ncomputer and one level for the total number of images. In\ncontext, however, it is clear that the court was not re-analyzing\n\f10 No. 18-1310\n\nthe specific offense characteristics in order to correct the\nguidelines calculation but rather was expressing disagreement\nwith the properly calculated guidelines sentence.\n After United States v. Booker, 543 U.S. 220 (2005), a sentenc-\ning judge has the discretion to disagree with a particular\nprovision of the guidelines and to impose a non-guidelines\nsentence that, in his or her judgment, is more consistent with\nthe statutory sentencing factors set out in section 3553(a).\nKimbrough v. United States, 552 U.S. 85 (2007); Smith, 860 F.3d at\n517; United States v. Rosales, 813 F.3d 634, 637 (7th Cir. 2016). In\nthe context of addressing the section 3553(a) factors, the court\nhere explained that it routinely varied downward the equiva-\nlent of two levels because child pornography offenses virtually\nalways involve the use of a computer, making the application\nof section 2G2.2(b)(6) inappropriate, in the court’s opinion. The\ncourt similarly disagreed with the “boilerplate” addition of\nseventy-five images for each video, allowing for a downward\nvariance equivalent to one level. The court then stated that “the\nvariance, if you want to call it that, for my recalculated\nguidelines would be 37.” R. 37, Sent. Tr. at 50. That mention of\nlevel 37 was likely a misstatement because it did not take into\naccount that the court had also adopted the PSR recommenda-\ntion to allow a three-level reduction for acceptance of responsi-\nbility, and so the variance was analogous to level 34, not level\n37. The misstatement had no effect on the sentence, however,\nbecause the court treated the variance as equivalent to a level\n34 sentence, not a level 37 sentence.\n In expressing its policy disagreement with the application\nof certain specific offense characteristics, the court simply\nanalogized the variance to reductions in particular specific\n\fNo. 18-1310 11\n\noffense characteristic levels. The court made this adjustment\nunder section 3553(a), and had no occasion to recalculate the\nfinal guidelines level. In Criminal History Category V, the\nanalogous level 34 sentence yields a guidelines range of 235 to\n293 months. The final sentence of 240 months is on the low end\nof a level 34 sentence and a full 84 months below the bottom of\nthe properly calculated guidelines range. If, as Griffith argues,\nthe court had mistakenly failed to account for acceptance of\nresponsibility when deciding how much to vary, the sentence\nwould have been significantly higher. We have no doubt that\nthe court was not correcting the guidelines calculation but was\nsimply explaining a downward variance under section 3553(a)\nfrom the properly calculated range by way of analogy to the\nguidelines.\n We emphasize that it was not necessary for the court to\nanalogize to the guidelines when explaining the downward\nvariance. United States v. Kuczora, 910 F.3d 904, 908 (7th Cir.\n2018) (“the sentencing court need not frame its explanation of\na sentence in terms of a departure from the guidelines range,\nbut may instead focus on the appropriateness of the sentence\nunder § 3553.”) (quoting United States v. Courtland, 642 F.3d\n545, 550 (7th Cir. 2011)). A court need only explain why a\nsentence is appropriate under the statutory criteria. Kuczora,\n910 F.3d at 908. So long as a court uses the properly calculated\nguidelines range as a starting point, it may explain a decision\nto vary from the range with reference to the section 3553(a)\nfactors alone. Kuczora, 910 F.3d at 908.\n We also note that the court had not found any error in the\nPSR’s calculation of the guidelines (other than the statutory cap\nissue we noted earlier) and had no reason to recalculate the\n\f12 No. 18-1310\n\nguidelines. The court’s Statement of Reasons explaining the\nsentence makes clear that the court intended for the three-level\nreduction to be a variance because of a policy disagreement\nwith the properly calculated guidelines, not a change to the\nguidelines calculation. R. 27, at 3, ¶ VI.D. And Griffith points\nto no error in the district court’s guidelines calculation here.\nIndeed, Griffith did not challenge the factual basis of the\nguidelines calculation or the final offense level in the district\ncourt. He argued instead that the resulting offense level was\ninconsistent with the purposes of sentencing expressed in\nsection 3553(a). He did not deny, for example, that some of the\nphotographs depicted prepubescent minors, or that certain\nimages portrayed violence towards and sexual abuse of\ntoddlers. He conceded that he offered access to his Twitter\naccounts in exchange for additional child pornography, that he\nused a computer and that his offenses involved more than 600\nimages when calculated under guidelines standards. But in\nconceding the basic facts underlying the calculation and the\nresult of the \"rote application\" of the guidelines provisions, he\nobjected only that the result produced a draconian and\nunjustified sentence. In light of all of the circumstances, the\nonly reasonable reading of the sentencing transcript is that the\ncourt understood and announced a correct calculation of the\nguidelines and then varied downward by analogy to certain\nguidelines factors during the discussion of the statutory\nfactors.\n Finally, we can quickly dispense with any claim that the\nfinal sentence was substantively unreasonable. When assessing\nthe substantive reasonableness of a sentence under the abuse\nof discretion standard, we presume that a within-guidelines\n\fNo. 18-1310 13\n\nsentence is reasonable. Rita v. United States, 551 U.S. 338,\n347–56 (2007); United States v. Moore, 851 F.3d 666, 674 (7th Cir.\n2017). That same presumption obviously applies to a below-\nguidelines sentence, such as the one imposed here. Moore, 851\nF.3d at 674. Griffith bears the burden of rebutting that pre-\nsumption by demonstrating that the sentence is unreasonably\nhigh in light of the section 3553(a) factors. United States v.\nMykytiuk, 415 F.3d 606, 608 (7th Cir. 2005).\n Griffith attempts to surmount that challenge by arguing\nthat his collection of child pornography was relatively small;\nthat his crimes involved no contact offenses; that a twenty-year\nterm was a de facto life sentence for a man of his age and health;\nthat the sentence was unnecessary to deter recidivism because\nof his age and the lengthy term of supervised release; and that\nsection 2G2.2 encourages unreasonably harsh sentences. The\ndistrict court carefully considered and addressed each of these\narguments, and Griffith’s claim on appeal amounts to a request\nthat we substitute our judgment for that of the district court. In\nthe usual course, it would be the government, not the defen-\ndant, arguing that the court abused its discretion by granting\na significantly below-guidelines sentence. In any case, the\ndistrict court did not abuse its discretion in granting Griffith an\neighty-four month break from the bottom of the properly-\ncalculated guidelines sentencing range, and the sentence was\nsubstantively reasonable.\n AFFIRMED.\n[END_CASE]", "role": "user" } ]
4,583,630		NLRB v. Edward L. Calvert	2019-01-22	17-1895	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before EASTERBROOK and SYKES, Circuit Judges, and BUCKLO, District Judge.", "parties": "", "opinions": [{"author": "Diane S. Sykes", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-1895\nIN RE:\n EDWARD L. CALVERT,\n Debtor-Appellee.\n\nAPPEAL OF: NATIONAL LABOR RELATIONS BOARD\n ____________________\n\n Appeal from the United States District Court for the\n Southern District of Indiana, Indianapolis Division.\n No. 1:16-cv-00161-SEB-MJD — Sarah Evans Barker, Judge.\n ____________________\n\n ARGUED JANUARY 8, 2018 — DECIDED JANUARY 22, 2019\n ____________________\n\n Before EASTERBROOK and SYKES, Circuit Judges, and\nBUCKLO, District Judge. \n SYKES, Circuit Judge. Edward Calvert was the sole owner\nand president of E.L.C. Electric, Inc., an electrical contracting\ncompany. After a labor organization unsuccessfully cam-\npaigned to unionize his company’s workforce, Calvert laid\noff most of E.L.C. Electric’s rank-and-file electricians, which\neffectively prevented future unionization attempts. The\n\n Of the Northern District of Illinois, sitting by designation.\n\n2 No. 17-1895\n\n\nNational Labor Relations Board (“NLRB”) determined that\nthe company violated the National Labor Relations Act\n(“NLRA”), which prohibits discrimination against workers\nfor exercising their statutory rights. See 29 U.S.C. § 158(a)(3).\nThe Board ordered E.L.C. Electric to compensate the electri-\ncians with backpay.\n Calvert tried to avoid the order by shifting his company’s\noperations to two new corporate entities. He didn’t succeed.\nThe NLRB discovered Calvert’s plan and held him personal-\nly responsible for the backpay award. Facing more than\n$400,000 in liability, Calvert filed for Chapter 7 bankruptcy.\n The Board challenged Calvert’s attempt to discharge the\nbackpay liability, arguing that the debt was not dischargea-\nble because it arose from a willful and malicious injury.\nSee 11 U.S.C. § 523(a)(6). Calvert conceded the willfulness\nelement but denied that he acted maliciously. The Board\ncountered by asserting that Calvert was collaterally es-\ntopped from litigating the malice issue, but it made little\neffort to establish the elements of the doctrine. Indeed, the\nBoard did not identify any specific findings in the NLRB\nruling that should be given preclusive effect. The bankrupt-\ncy judge declined to apply collateral estoppel and instead\nheld a bench trial on the issue of malice. Based on the trial\nevidence, the judge found that Calvert had not acted mali-\nciously and thus ruled that the debt was not exempt from\ndischarge.\n On appeal to the district court, the Board again raised\ncollateral estoppel but failed to analyze the elements of the\ndoctrine or provide citations to the relevant parts of the\nagency record. The district judge noted these deficiencies\nand affirmed.\n\nNo. 17-1895 3\n\n\n We likewise affirm. The Board does not challenge the ev-\nidence at trial or the bankruptcy judge’s factual findings.\nInstead it stakes its entire case on collateral estoppel. But it\npersists in providing only a generalized discussion of pre-\nclusion doctrine that is untethered to specific findings in the\nNLRB proceeding. That’s not enough to establish that\nCalvert is precluded from contesting the malice issue under\n§ 523(a)(6).\n I. Background\n In July 2002 the International Brotherhood of Electrical\nWorkers, Local 481, campaigned to become the certified\nbargaining representative for E.L.C. Electric’s rank-and-file\nelectricians. Calvert launched his own campaign to oppose\nthe Union’s efforts. When the Union lost, it filed an objection\nwith the NLRB, demanding a new vote on the ground that\nE.L.C. Electric had unlawfully meddled in the election.\n While this objection was pending, E.L.C. Electric promot-\ned two of its bargaining-unit electricians and fired the\nremaining sixteen, leaving the Union without a rank-and-file\nworkforce at the company to unionize. The Union filed a\nsecond charge with the NLRB alleging that E.L.C. Electric\nunlawfully fired the electricians for exercising their right to\nunionize.\n After a trial in April 2004, an administrative law judge\nruled that E.L.C. Electric violated sections 8(a)(1) and (3) of\nthe NLRA, 29 U.S.C. § 158(a)(1), (3). The NLRB affirmed the\nALJ’s ruling a year later. E.L.C. Elec., Inc., 344 N.L.R.B. 1200\n(2005). It determined that E.L.C. Electric violated § 158(a)(3)\nof the NLRA by firing the electricians to prevent them from\n\n4 No. 17-1895\n\n\norganizing. The NLRB ordered the company to compensate\nthe electricians with backpay.\n E.L.C. Electric never paid the award. It ceased operations\nin March 2006. The ALJ initiated supplemental proceedings\nand concluded that Calvert shuttered the firm to avoid\npaying the electricians. The judge pierced the corporate veil\nand held Calvert personally liable for $437,427 in backpay\nand interest. The NLRB adopted the judge’s findings and\nconclusions, E.L.C. Elec., Inc., 359 N.L.R.B. 255 (2012), and we\nsummarily enforced the order in July 2013.\n Calvert filed a Chapter 7 bankruptcy petition five months\nlater. See 11 U.S.C. § 727. In response the Board challenged\nCalvert’s attempt to discharge the backpay debt. It raised\nmultiple arguments but only one remains relevant. The\nBoard claimed that the debt was exempt from discharge\nbecause it arose from a “willful and malicious injury by the\ndebtor to another entity.” § 523(a)(6). Calvert did not dispute\nthat he acted willfully, but he denied that he acted mali-\nciously. The Board sought summary judgment, arguing that\nthe agency’s finding of liability under § 158(a)(3) of the\nNLRA precluded Calvert from litigating whether the debt\nwas exempt from discharge under § 523(a)(6) of the Bank-\nruptcy Code. The bankruptcy judge denied the motion,\nreasoning that § 158(a)(3) and § 523(a)(6) apply different\nlegal standards and that the NLRB proceedings lacked a\n“sufficient level of ‘specific findings’” to be given preclusive\neffect on the question whether the debt was exempt from\ndischarge—more particularly, whether Calvert had acted\nwith malice.\n The matter proceeded to a bench trial, and Calvert testi-\nfied that he laid off his employees to save money by hiring\n\nNo. 17-1895 5\n\n\nindependent contractors. The Board offered no evidence to\nrefute this explanation. The judge credited Calvert’s testi-\nmony and found that the Board failed to prove that he acted\nmaliciously. Based on these findings, the judge rejected the\nBoard’s contention that the backpay debt was exempt from\ndischarge.\n The Board appealed to the district court, once again rais-\ning issue preclusion. The district judge affirmed. She rejected\nthe preclusion argument, noting that the Board had failed to\nanalyze the elements of collateral estoppel or provide cita-\ntions to the relevant parts of the agency record that might\nsupport preclusion. On the merits the judge held that the\nbankruptcy judge’s factual findings were not clearly errone-\nous.\n II. Discussion\n We review the bankruptcy court’s findings of fact for\nclear error and conclusions of law de novo. In re Kempff,\n847 F.3d 444, 448 (7th Cir. 2017). The Bankruptcy Code does\nnot permit the discharge of debts incurred because of “will-\nful and malicious injury by the debtor to another entity or to\nthe property of another entity.” § 523(a)(6). By its terms, this\nexception to the general discharge rule requires “(1) an\ninjury caused by the debtor (2) willfully and (3) malicious-\nly.” First Weber Grp., Inc. v. Horsfall, 738 F.3d 767, 774 (7th\nCir. 2013). The Board has the burden of establishing each of\nthese elements by a preponderance of the evidence. Id.\n There’s no dispute about injury, causation, or willfulness.\nThe sole question concerns malice. It’s the Board’s burden to\nprove that Calvert “acted ‘in conscious disregard of [his]\nduties or without just cause or excuse.’” Id. (quoting In re\n\n6 No. 17-1895\n\n\nThirtyacre, 36 F.3d 697, 700 (7th Cir. 1994)) (alteration in\noriginal). The Board contends that the NLRB adjudication\ncollaterally estopped Calvert from contesting the malice\nissue in the § 523(a)(6) litigation.\n Calvert responds that the Board cannot now rely on col-\nlateral estoppel because it did not fully develop the argu-\nment in the bankruptcy and district courts. It’s true that the\nBoard’s preclusion argument was overly generalized and\nincomplete, as the district judge expressly noted. But the\nagency said enough to overcome a forfeiture, which is not\n“an overly technical appellate hurdle.” Fox v. Hayes, 600 F.3d\n819, 832 (7th Cir. 2010). While not forfeited, the argument is\nneither adequately nor correctly developed in this court—\neven after the district judge put the Board on clear notice of\nthe defects in its briefing—and that defeats the Board’s\nargument on appeal.\n Issue preclusion prevents a party from relitigating issues\nthat were resolved in a prior legal action. Adams v. City of\nIndianapolis, 742 F.3d 720, 736 (7th Cir. 2014). The party\ninvoking preclusion must show that\n (1) the issue sought to be precluded [was] the\n same as that involved in the prior litigation,\n (2) the issue [was] actually litigated, (3) the de-\n termination of the issue [was] essential to the\n final judgment, and (4) the party against whom\n estoppel is invoked [was] fully represented in\n the prior action.\nMatrix IV, Inc. v. Am. Nat’l Bank & Trust Co. of Chi., 649 F.3d\n539, 547 (7th Cir. 2011) (quoting H-D Mich., Inc. v. Top Quali-\nty Serv., Inc., 496 F.3d 755, 760 (7th Cir. 2007)).\n\nNo. 17-1895 7\n\n\n To determine whether the NLRB proceeding “involved”\nthe same issue as the bankruptcy proceeding, the first step is\nto “determine with precision what matters actually were\ndecided” in the labor proceeding. 18 CHARLES ALAN WRIGHT\nET AL., FEDERAL PRACTICE AND PROCEDURE § 4417, at 459–60\n(3d ed. 2016). This determination must be grounded in the\nactual findings and analysis in the ALJ’s ruling. See, e.g., In re\nDavis, 638 F.3d 549, 554 (7th Cir. 2011) (defining the issue\n“[i]n the context of the entire [prior] court opinion”); H-D\nMich., Inc., 496 F.3d at 760–61 (defining the issue with refer-\nence to specific statements in the prior opinion).\n It’s the Board’s job to identify the actual findings in the\nNLRB proceeding that it claims are entitled to preclusive\neffect, and it must then map those findings onto the stand-\nard for malice under § 523(a)(6). Compare First Weber Grp.,\n738 F.3d at 775 (finding preclusion on the issue of malice\nbecause the prior action’s analysis “substantially mirrored”\nthe standard under § 523(a)(6)), with Gerard v. Gerard,\n780 F.3d 806, 810–11 (7th Cir. 2015) (holding that a slander-\nof-title verdict did not preclude litigation over whether the\nunderlying injury was “willful” under § 523(a)(6) because\nthe jury instructions for the verdict required only negli-\ngence).\n The Board has not satisfied its burden. It has not identi-\nfied the specific issues that were actually decided in the\nlabor proceeding, much less mapped the ALJ’s findings onto\nthe elements of § 523(a)(6). Instead, the Board’s argument for\ncollateral estoppel is stated at a high level of generality. It\nargues that § 158(a)(3) and § 523(a)(6) ask the same general\nquestion: “Why did Calvert discharge his employees, or,\nwhat was his intent in doing so?” Like the lower courts, we\n\n8 No. 17-1895\n\n\ncannot assess the applicability of issue preclusion without a\nmore precise analysis of what was actually decided in the\nlabor proceeding as a legal and factual matter. See Econ.\nFolding Box Corp. v. Anchor Frozen Foods Corp., 515 F.3d 718,\n721 (7th Cir. 2008) (“It is not the court’s responsibility to\nresearch the law and construct the parties’ arguments for\nthem.”).\n The Board maintains that preclusion applies as a categor-\nical matter because § 158(a)(3) prohibits discrimination\nbased on antiunion animus. As the Board sees it, a factual\nfinding that Calvert acted with malice necessarily nests\nwithin the agency’s imposition of § 158(a)(3) liability. But for\npreclusion to apply, the Board must establish that the issue\nof discriminatory intent under § 158(a)(3) of the NLRA is the\nsame as the issue of malice under § 523(a)(6) of the Bank-\nruptcy Code and also that the issue of Calvert’s intent was\nactually decided in the agency proceeding. It has not done so.\nTo repeat, the Board has not grounded its argument in\nspecific findings entered in the NLRB proceeding, much less\napplied those findings to the malice standard under\n§ 523(a)(6). Moreover, as the bankruptcy judge noted, the\nagency’s determination lacks specificity on the issue of\nCalvert’s intent. The ALJ found only that the NLRB estab-\nlished a prima facie case under § 158(a)(3) that E.L.C. Electric\nfailed to rebut.\n In short, the Board has not met its burden to establish\nthat the prior agency adjudication involved and actually\ndecided the issue of whether Calvert acted with malice,\nwhich is fatal to its preclusion argument. And because the\nBoard does not challenge the bankruptcy judge’s factual\nfinding that Calvert did not act with malice, its claim that the\n\nNo. 17-1895 9\n\n\nbackpay debt is exempt from discharge under § 523(a)(6)\nnecessarily fails. Accordingly, the judgment below is\n AFFIRMED.\n\n10 No. 17-1895", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4360883/", "author_raw": "Diane S. Sykes"}, {"author": "BUCKLO, District Judge, dissenting", "type": "dissent", "text": "BUCKLO, District Judge, dissenting. I respectfully dissent.\nThe question before the bankruptcy court was whether\nCalvert acted maliciously, i.e. “without just cause or excuse,”\nwhen he laid off nearly all of his rank-and-file workforce in\nviolation of the National Labor Relations Act. First Weber\nGrp., Inc. v. Horsfall, 738 F.3d 767, 774 (7th Cir. 2013). In\nadjudicating the underlying 29 U.S.C. § 158(a)(3) discrimina-\ntion claim in the NLRB’s favor, the ALJ conducted an analy-\nsis that “substantially mirrored” the malice inquiry under\n11 U.S.C. § 523(a)(6), id. at 775, and determined that Calvert’s\nconduct was unsupported by any lawful purpose. That\nfinding should have been given preclusive effect in the\nbankruptcy court.\n My colleagues rule against the NLRB on the ground that\nits preclusion analysis is overly general. In their view, the\nBoard “has not grounded its [preclusion] argument in\nspecific findings” or established that “the issue of Calvert’s\nintent was actually decided in the agency proceeding.” But the\nNLRB points to several findings that the ALJ made regard-\ning Calvert’s intent. First, the Board cites the ALJ’s determi-\nnation that Calvert laid off his employees “because of their\nunion activities, to wit, to avoid having further NLRB pro-\nceedings and the risk that the Union might ultimately be\ncertified as the collective-bargaining representative[] of [his]\nemployees.” (Emphasis added.) The phrase “because of”\ntells us that the ALJ actually decided the issue of Calvert’s\nintent. Moreover, the ALJ’s determination that Calvert was\nmotivated by a discriminatory purpose was essential to the\nALJ’s ultimate holding. See SCA Tissue N. Am. LLC v.\nN.L.R.B., 371 F.3d 983, 988 (7th Cir. 2004) (proof of discrimi-\nnation requires evidence that “employer acted because of\n\nNo. 17-1895 11\n\n\nanti-union animus”); Bloedorn v. Francisco Foods, Inc.,\n276 F.3d 270, 290 (7th Cir. 2001) (employer’s unlawful dis-\ncriminatory motive is the “critical question” in a § 158(a)(3)\nproceeding); Van Vlerah Mech., Inc. v. N.L.R.B., 130 F.3d 1258,\n1263 (7th Cir. 1997) (“In evaluating [§ 158(a)(3) allegations],\nthe Board must determine the employer's motivation in\ntaking a particular action.”).\n Second, the Board identifies the ALJ’s determination that\nCalvert did not establish a “legitimate business reason” for\nhis conduct. Notwithstanding the ALJ’s finding that Calvert\nacted with discriminatory intent, Calvert could have avoid-\ned liability under § 158(a)(3) by showing that he had a\nlegitimate business reason for his actions. See N.L.R.B. v.\nDorothy Shamrock Coal Co., 833 F.2d 1263, 1266 (7th Cir. 1987)\n(“The employer … may avoid liability by showing that his\nactions would have been the same ‘regardless of his forbid-\nden motive.’”). Calvert attempted to make such a showing,\noffering three different explanations for the layoffs, but the\nALJ rejected all of them. Indeed, the ALJ found Calvert’s\n“shifting” justifications to be “wholly unreliable” and con-\ncluded that they “utterly failed to rebut” the Board’s evi-\ndence of “antiunion animus.” The upshot of the ALJ’s\nburden-shifting analysis was a conclusive finding on the\nissue of Calvert’s intent: specifically, that Calvert laid off his\nworkforce based on “antiunion animus” rather than “legiti-\nmate business considerations.”\n The majority’s contrary view nods to Calvert’s argument\nthat because § 158(a)(3) does not require the NLRB to prove\naffirmatively that Calvert lacked a legitimate business\nreason for his conduct, the ALJ did not conclusively decide\nthe issue of Calvert’s intent. See supra at 8 (“The ALJ found\n\n12 No. 17-1895\n\n\nonly that the NLRB established a prima facie case under\n§ 158(a)(3) that E.L.C. Electric failed to rebut.”). That inter-\npretation fails to appreciate that in the labor proceedings, the\nNLRB at all times carried the burden of establishing that\nCalvert discharged his employees “based in whole or in part\non antiunion animus.” N.L.R.B. v. Transp. Mgmt. Corp.,\n462 U.S. 393, 401 (1983), abrogated in non-relevant part by Dir.,\nOffice of Workers’ Comp. Programs, Dept. of Labor v. Greenwich\nCollieries, 512 U.S. 267, 276–78 (1994)). Moreover, it overlooks\nthe text of the ALJ’s decision, which, in a paragraph that\nopens, “[s]pecifically as to why [Calvert] made the deci-\nsion …” the ALJ concluded that Calvert’s decision to lay off\nhis workers “was motivated by … antiunion animus.”\n To establish issue preclusion, the NLRB needed to show\nthat the ALJ’s analysis of Calvert’s intent “substantially\nmirrored” the standard for malice under § 523(a)(6). Horsfall,\n738 F.3d at 775. In fact, the Board had a tougher row to hoe\nto prevail in the labor proceedings than it did before the\nbankruptcy court, since it had not only to prove Calvert’s\nimpermissible motive, but also to withstand Calvert’s af-\nfirmative defense of a legitimate business reason. Regardless\nof who bore the burden on which issue, the universe of\nevidence presented to the ALJ had to persuade him that a\nprohibited reason—not a legitimate one—motivated\nCalvert’s actions. And as the text of his decision makes clear,\npersuade him it did.\n The majority faults the Board for failing to perform a\nmore exacting exercise to “map[] the ALJ’s findings onto the\nelements of § 523(a)(6).” In my view, no heavy lifting was\nrequired to illustrate how the ALJ’s twin findings that\nCalvert acted with a prohibited motive and without a legiti-\n\nNo. 17-1895 13\n\n\nmate business reason satisfy the malice inquiry under\n§ 523(a)(6). Malice is established by proof that a debtor acted\n“without just cause or excuse.” Horsfall, 738 F.3d at 774. The\nBoard proved to the ALJ, notwithstanding Calvert’s contrary\ntestimony, that Calvert acted with antiunion animus—a\nprohibited motive. It is not clear to me what additional\nanalytical dots the Board needed to connect to show that\nCalvert’s actions lacked just cause or excuse.\n Bankruptcy courts in this circuit and elsewhere have held\nthat an agency or state court finding that the debtor acted\nwith discriminatory intent and without just cause satisfies\nthe malice standard under § 523(a)(6). In re Fogerty, 204 B.R.\n956, 962 (Bankr. N.D. Ill. 1996) (NLRB’s conclusion that the\ndebtor wrongfully terminated two employees in violation of\n§ 158(a)(3) decided the issue of malice because it was based\non the determination that the debtor lacked just cause to\ndischarge the employees and terminated them solely be-\ncause of their protected activities); In re Goldberg, 487 B.R.\n112, 129 (Bankr. E.D.N.Y. 2013) (applying collateral estoppel\nto state court’s factual findings of intentional discrimination,\nreasoning that declining to do so would “sanction the view\nthat there exists some ‘just cause or excuse’ for discrimina-\ntion … where the state court has already found otherwise”).\n When the ALJ held that Calvert discriminated against his\nemployees in violation of § 158(a)(3) and held him liable for\nthat violation, he resolved the question of whether Calvert\nhad just cause for his actions. Instead of giving the ALJ’s\nfindings about Calvert’s intent the preclusive effect they\nwere due, the bankruptcy court offered Calvert another bite\nat the apple, affording him an opportunity to relitigate his\npurported justifications for violating federal law. But the\n\n14 No. 17-1895\n\n\nALJ’s analysis left no room for finding Calvert’s conduct\njustified. Accordingly, I would hold that the bankruptcy\ncourt was precluded from reopening an inquiry into\nCalvert’s intent.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4360883/", "author_raw": "BUCKLO, District Judge, dissenting"}]}	EASTERBROOK	SYKES	BUCKLO	1		{"EASTERBROOK": ", Circuit", "SYKES": ", Circuit", "BUCKLO": ", District"}	2	1	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4583630/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: NLRB v. Edward L. Calvert\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-22\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-1895\nIN RE:\n EDWARD L. CALVERT,\n Debtor-Appellee.\n\nAPPEAL OF: NATIONAL LABOR RELATIONS BOARD\n ____________________\n\n Appeal from the United States District Court for the\n Southern District of Indiana, Indianapolis Division.\n No. 1:16-cv-00161-SEB-MJD — Sarah Evans Barker, Judge.\n ____________________\n\n ARGUED JANUARY 8, 2018 — DECIDED JANUARY 22, 2019\n ____________________\n\n Before EASTERBROOK and SYKES, Circuit Judges, and\nBUCKLO, District Judge. \n SYKES, Circuit Judge. Edward Calvert was the sole owner\nand president of E.L.C. Electric, Inc., an electrical contracting\ncompany. After a labor organization unsuccessfully cam-\npaigned to unionize his company’s workforce, Calvert laid\noff most of E.L.C. Electric’s rank-and-file electricians, which\neffectively prevented future unionization attempts. The\n\n Of the Northern District of Illinois, sitting by designation.\n\n2 No. 17-1895\n\n\nNational Labor Relations Board (“NLRB”) determined that\nthe company violated the National Labor Relations Act\n(“NLRA”), which prohibits discrimination against workers\nfor exercising their statutory rights. See 29 U.S.C. § 158(a)(3).\nThe Board ordered E.L.C. Electric to compensate the electri-\ncians with backpay.\n Calvert tried to avoid the order by shifting his company’s\noperations to two new corporate entities. He didn’t succeed.\nThe NLRB discovered Calvert’s plan and held him personal-\nly responsible for the backpay award. Facing more than\n$400,000 in liability, Calvert filed for Chapter 7 bankruptcy.\n The Board challenged Calvert’s attempt to discharge the\nbackpay liability, arguing that the debt was not dischargea-\nble because it arose from a willful and malicious injury.\nSee 11 U.S.C. § 523(a)(6). Calvert conceded the willfulness\nelement but denied that he acted maliciously. The Board\ncountered by asserting that Calvert was collaterally es-\ntopped from litigating the malice issue, but it made little\neffort to establish the elements of the doctrine. Indeed, the\nBoard did not identify any specific findings in the NLRB\nruling that should be given preclusive effect. The bankrupt-\ncy judge declined to apply collateral estoppel and instead\nheld a bench trial on the issue of malice. Based on the trial\nevidence, the judge found that Calvert had not acted mali-\nciously and thus ruled that the debt was not exempt from\ndischarge.\n On appeal to the district court, the Board again raised\ncollateral estoppel but failed to analyze the elements of the\ndoctrine or provide citations to the relevant parts of the\nagency record. The district judge noted these deficiencies\nand affirmed.\n\nNo. 17-1895 3\n\n\n We likewise affirm. The Board does not challenge the ev-\nidence at trial or the bankruptcy judge’s factual findings.\nInstead it stakes its entire case on collateral estoppel. But it\npersists in providing only a generalized discussion of pre-\nclusion doctrine that is untethered to specific findings in the\nNLRB proceeding. That’s not enough to establish that\nCalvert is precluded from contesting the malice issue under\n§ 523(a)(6).\n I. Background\n In July 2002 the International Brotherhood of Electrical\nWorkers, Local 481, campaigned to become the certified\nbargaining representative for E.L.C. Electric’s rank-and-file\nelectricians. Calvert launched his own campaign to oppose\nthe Union’s efforts. When the Union lost, it filed an objection\nwith the NLRB, demanding a new vote on the ground that\nE.L.C. Electric had unlawfully meddled in the election.\n While this objection was pending, E.L.C. Electric promot-\ned two of its bargaining-unit electricians and fired the\nremaining sixteen, leaving the Union without a rank-and-file\nworkforce at the company to unionize. The Union filed a\nsecond charge with the NLRB alleging that E.L.C. Electric\nunlawfully fired the electricians for exercising their right to\nunionize.\n After a trial in April 2004, an administrative law judge\nruled that E.L.C. Electric violated sections 8(a)(1) and (3) of\nthe NLRA, 29 U.S.C. § 158(a)(1), (3). The NLRB affirmed the\nALJ’s ruling a year later. E.L.C. Elec., Inc., 344 N.L.R.B. 1200\n(2005). It determined that E.L.C. Electric violated § 158(a)(3)\nof the NLRA by firing the electricians to prevent them from\n\n4 No. 17-1895\n\n\norganizing. The NLRB ordered the company to compensate\nthe electricians with backpay.\n E.L.C. Electric never paid the award. It ceased operations\nin March 2006. The ALJ initiated supplemental proceedings\nand concluded that Calvert shuttered the firm to avoid\npaying the electricians. The judge pierced the corporate veil\nand held Calvert personally liable for $437,427 in backpay\nand interest. The NLRB adopted the judge’s findings and\nconclusions, E.L.C. Elec., Inc., 359 N.L.R.B. 255 (2012), and we\nsummarily enforced the order in July 2013.\n Calvert filed a Chapter 7 bankruptcy petition five months\nlater. See 11 U.S.C. § 727. In response the Board challenged\nCalvert’s attempt to discharge the backpay debt. It raised\nmultiple arguments but only one remains relevant. The\nBoard claimed that the debt was exempt from discharge\nbecause it arose from a “willful and malicious injury by the\ndebtor to another entity.” § 523(a)(6). Calvert did not dispute\nthat he acted willfully, but he denied that he acted mali-\nciously. The Board sought summary judgment, arguing that\nthe agency’s finding of liability under § 158(a)(3) of the\nNLRA precluded Calvert from litigating whether the debt\nwas exempt from discharge under § 523(a)(6) of the Bank-\nruptcy Code. The bankruptcy judge denied the motion,\nreasoning that § 158(a)(3) and § 523(a)(6) apply different\nlegal standards and that the NLRB proceedings lacked a\n“sufficient level of ‘specific findings’” to be given preclusive\neffect on the question whether the debt was exempt from\ndischarge—more particularly, whether Calvert had acted\nwith malice.\n The matter proceeded to a bench trial, and Calvert testi-\nfied that he laid off his employees to save money by hiring\n\nNo. 17-1895 5\n\n\nindependent contractors. The Board offered no evidence to\nrefute this explanation. The judge credited Calvert’s testi-\nmony and found that the Board failed to prove that he acted\nmaliciously. Based on these findings, the judge rejected the\nBoard’s contention that the backpay debt was exempt from\ndischarge.\n The Board appealed to the district court, once again rais-\ning issue preclusion. The district judge affirmed. She rejected\nthe preclusion argument, noting that the Board had failed to\nanalyze the elements of collateral estoppel or provide cita-\ntions to the relevant parts of the agency record that might\nsupport preclusion. On the merits the judge held that the\nbankruptcy judge’s factual findings were not clearly errone-\nous.\n II. Discussion\n We review the bankruptcy court’s findings of fact for\nclear error and conclusions of law de novo. In re Kempff,\n847 F.3d 444, 448 (7th Cir. 2017). The Bankruptcy Code does\nnot permit the discharge of debts incurred because of “will-\nful and malicious injury by the debtor to another entity or to\nthe property of another entity.” § 523(a)(6). By its terms, this\nexception to the general discharge rule requires “(1) an\ninjury caused by the debtor (2) willfully and (3) malicious-\nly.” First Weber Grp., Inc. v. Horsfall, 738 F.3d 767, 774 (7th\nCir. 2013). The Board has the burden of establishing each of\nthese elements by a preponderance of the evidence. Id.\n There’s no dispute about injury, causation, or willfulness.\nThe sole question concerns malice. It’s the Board’s burden to\nprove that Calvert “acted ‘in conscious disregard of [his]\nduties or without just cause or excuse.’” Id. (quoting In re\n\n6 No. 17-1895\n\n\nThirtyacre, 36 F.3d 697, 700 (7th Cir. 1994)) (alteration in\noriginal). The Board contends that the NLRB adjudication\ncollaterally estopped Calvert from contesting the malice\nissue in the § 523(a)(6) litigation.\n Calvert responds that the Board cannot now rely on col-\nlateral estoppel because it did not fully develop the argu-\nment in the bankruptcy and district courts. It’s true that the\nBoard’s preclusion argument was overly generalized and\nincomplete, as the district judge expressly noted. But the\nagency said enough to overcome a forfeiture, which is not\n“an overly technical appellate hurdle.” Fox v. Hayes, 600 F.3d\n819, 832 (7th Cir. 2010). While not forfeited, the argument is\nneither adequately nor correctly developed in this court—\neven after the district judge put the Board on clear notice of\nthe defects in its briefing—and that defeats the Board’s\nargument on appeal.\n Issue preclusion prevents a party from relitigating issues\nthat were resolved in a prior legal action. Adams v. City of\nIndianapolis, 742 F.3d 720, 736 (7th Cir. 2014). The party\ninvoking preclusion must show that\n (1) the issue sought to be precluded [was] the\n same as that involved in the prior litigation,\n (2) the issue [was] actually litigated, (3) the de-\n termination of the issue [was] essential to the\n final judgment, and (4) the party against whom\n estoppel is invoked [was] fully represented in\n the prior action.\nMatrix IV, Inc. v. Am. Nat’l Bank & Trust Co. of Chi., 649 F.3d\n539, 547 (7th Cir. 2011) (quoting H-D Mich., Inc. v. Top Quali-\nty Serv., Inc., 496 F.3d 755, 760 (7th Cir. 2007)).\n\nNo. 17-1895 7\n\n\n To determine whether the NLRB proceeding “involved”\nthe same issue as the bankruptcy proceeding, the first step is\nto “determine with precision what matters actually were\ndecided” in the labor proceeding. 18 CHARLES ALAN WRIGHT\nET AL., FEDERAL PRACTICE AND PROCEDURE § 4417, at 459–60\n(3d ed. 2016). This determination must be grounded in the\nactual findings and analysis in the ALJ’s ruling. See, e.g., In re\nDavis, 638 F.3d 549, 554 (7th Cir. 2011) (defining the issue\n“[i]n the context of the entire [prior] court opinion”); H-D\nMich., Inc., 496 F.3d at 760–61 (defining the issue with refer-\nence to specific statements in the prior opinion).\n It’s the Board’s job to identify the actual findings in the\nNLRB proceeding that it claims are entitled to preclusive\neffect, and it must then map those findings onto the stand-\nard for malice under § 523(a)(6). Compare First Weber Grp.,\n738 F.3d at 775 (finding preclusion on the issue of malice\nbecause the prior action’s analysis “substantially mirrored”\nthe standard under § 523(a)(6)), with Gerard v. Gerard,\n780 F.3d 806, 810–11 (7th Cir. 2015) (holding that a slander-\nof-title verdict did not preclude litigation over whether the\nunderlying injury was “willful” under § 523(a)(6) because\nthe jury instructions for the verdict required only negli-\ngence).\n The Board has not satisfied its burden. It has not identi-\nfied the specific issues that were actually decided in the\nlabor proceeding, much less mapped the ALJ’s findings onto\nthe elements of § 523(a)(6). Instead, the Board’s argument for\ncollateral estoppel is stated at a high level of generality. It\nargues that § 158(a)(3) and § 523(a)(6) ask the same general\nquestion: “Why did Calvert discharge his employees, or,\nwhat was his intent in doing so?” Like the lower courts, we\n\n8 No. 17-1895\n\n\ncannot assess the applicability of issue preclusion without a\nmore precise analysis of what was actually decided in the\nlabor proceeding as a legal and factual matter. See Econ.\nFolding Box Corp. v. Anchor Frozen Foods Corp., 515 F.3d 718,\n721 (7th Cir. 2008) (“It is not the court’s responsibility to\nresearch the law and construct the parties’ arguments for\nthem.”).\n The Board maintains that preclusion applies as a categor-\nical matter because § 158(a)(3) prohibits discrimination\nbased on antiunion animus. As the Board sees it, a factual\nfinding that Calvert acted with malice necessarily nests\nwithin the agency’s imposition of § 158(a)(3) liability. But for\npreclusion to apply, the Board must establish that the issue\nof discriminatory intent under § 158(a)(3) of the NLRA is the\nsame as the issue of malice under § 523(a)(6) of the Bank-\nruptcy Code and also that the issue of Calvert’s intent was\nactually decided in the agency proceeding. It has not done so.\nTo repeat, the Board has not grounded its argument in\nspecific findings entered in the NLRB proceeding, much less\napplied those findings to the malice standard under\n§ 523(a)(6). Moreover, as the bankruptcy judge noted, the\nagency’s determination lacks specificity on the issue of\nCalvert’s intent. The ALJ found only that the NLRB estab-\nlished a prima facie case under § 158(a)(3) that E.L.C. Electric\nfailed to rebut.\n In short, the Board has not met its burden to establish\nthat the prior agency adjudication involved and actually\ndecided the issue of whether Calvert acted with malice,\nwhich is fatal to its preclusion argument. And because the\nBoard does not challenge the bankruptcy judge’s factual\nfinding that Calvert did not act with malice, its claim that the\n\nNo. 17-1895 9\n\n\nbackpay debt is exempt from discharge under § 523(a)(6)\nnecessarily fails. Accordingly, the judgment below is\n AFFIRMED.\n\n10 No. 17-1895\n[END_CASE]", "role": "user" } ]
4,583,975		United States v. Scott Griffith	2019-01-22	18-1310	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before ROVNER, SYKES, and BARRETT, Circuit Judges.", "parties": "", "opinions": [{"author": "Ilana Kara Diamond Rovner", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\nNo. 18-1310\n\nUNITED STATES OF AMERICA,\n Plaintiff-Appellee,\n\n v.\n\n\nSCOTT B. GRIFFITH,\n Defendant-Appellant.\n\n\n Appeal from the United States District Court for the\n Central District of Illinois.\n No. 4:16-cr-40010-SLD-1 — Sara Darrow, Judge.\n\n\n\n ARGUED NOVEMBER 7, 2018 — DECIDED JANUARY 22, 2019\n\n\n Before ROVNER, SYKES, and BARRETT, Circuit Judges.\n ROVNER, Circuit Judge. Scott B. Griffith pled guilty to a\nthree-count indictment that charged him with receiving,\ndistributing, and possessing child pornography. The district\ncourt sentenced him to 240 months’ imprisonment on each\ncount, to run concurrently, as well as a fifteen-year period of\nsupervised release. On appeal, he asserts that the district court\n\f2 No. 18-1310\n\ncommitted procedural error in calculating the guidelines\nrange, and that his resulting sentence is substantively unrea-\nsonable. We affirm.\n I.\n Griffith was charged with: (1) receiving four digital images\nof child pornography, in violation of 18 U.S.C.\n§§ 2252A(a)(2)(A) and 2252A(b)(1); (2) distributing three digital\nimages of child pornography (different than those received), in\nviolation of 18 U.S.C. §§ 2252A(a)(2)(A) and 2252A(b)(1); and\n(3) possessing visual depictions of child pornography in\naddition to those described in the receipt and distribution\ncounts, in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and\n2252A(b)(2). In total, Griffith’s crimes included 477 photo-\ngraphs and eleven videos of unspecified length. All counts\nwere alleged to have occurred during a three-month period\nnear the end of 2015, and all involved the use of Twitter\naccounts. Each time Twitter detected child pornography on\nGriffith’s account, the company closed the account and\nreported the inappropriate activity. Griffith created more than\ntwenty-five Twitter accounts during that three-month period\nin an attempt to thwart the company’s efforts, directing his\nfollowers from one account to the next.\n Prior to committing these crimes, Griffith, who was fifty-\ntwo years old at the time of his arrest, had amassed enough of\na criminal history to land him in Category V, only one level\nbelow the top of the scale. At the age of twenty, he had\nsexually abused a child under the age of thirteen, a conviction\nthat was too old to be counted for criminal history purposes.\nThe vast majority of his remaining criminal history was\n\fNo. 18-1310 3\n\ncomposed of driving offenses and thefts, some minor and some\nmore serious. Additionally, two women had sought and\nreceived orders of protection against Griffith after he threat-\nened them. His criminal record prior to this offense spanned\nnearly thirty years and a dozen of the previous offenses were\neither too old or too minor to be included in the calculation of\nhis criminal history.\n The Presentence Investigation Report (“PSR”)1 noted that\nthe base offense level for the three grouped counts was 22,\nciting U.S.S.G. § 2G2.2. An analysis of specific offense charac-\nteristics added 18 levels for a total of 40. In particular, the PSR\nadded two levels under section 2G2.2(b)(2) because the\nmaterial involved a prepubescent minor. Griffith solicited child\npornography on his Twitter pages in exchange for access to his\nown collection, leading to a five-level increase under section\n2G2.2(b)(3)(b), for distributing the pictures in exchange for\nnon-pecuniary, valuable consideration, a transaction some-\ntimes called a “peer-to-peer exchange.” Four levels were added\nunder section 2G2.2(b)(4)(A) and (B) for material that depicted\nviolence and sexual abuse or exploitation of a toddler. The use\nof a computer contributed two levels under section 2G2.2(b)(6).\nFinally, each of the eleven videos was treated as equivalent to\nseventy-five images which, when added to the 477 photo-\ngraphs, pushed the total images over 600 and added five levels\n\n1\n There are two versions of the PSR in the record, an original and a revised\nversion. The revised version includes an addendum that details the\ndefendant’s objections to the first PSR and the government’s response, as\nwell as some other revisions and recommendations. For the purpose of\ncalculating the offense level and criminal history category, the PSRs are\nessentially the same. We will note any differences when relevant.\n\f4 No. 18-1310\n\nunder section 2G2.2(b)(7)(D), for an adjusted offense level of\n40. After deducting three levels for acceptance of responsibil-\nity, the PSR set the total offense level at 37. Both versions of the\nPSR noted that the guidelines range for a total offense level of\n37 and a criminal history Category V is 324 to 405 months’\nimprisonment. Both PSRs took the position that Griffith’s prior\nconviction for sexual abuse qualified him for enhanced\nmandatory minimums under 18 U.S.C. § 2252A(b)(1), noting\nthat the enhanced terms for Counts I and II were fifteen to\nforty years. Count III carried a minimum of ten years and a\nmaximum of twenty years, assuming that the enhanced\npenalty applied. The revised PSR incorrectly stated that,\nwithout the enhanced mandatory minimums, the guidelines\nrange would be 240 months. Neither party noticed that error\nuntil the sentencing hearing, as we discuss below.\n Griffith filed a number of objections to the PSR in the\ndistrict court, largely falling into three categories. First, he\nobjected to the application of the “specific offense characteris-\ntics” provisions that added eighteen levels to the base offense\nlevel. He contended that the additional levels assessed against\nhim were based on “arbitrary, unreasonable and unwarranted\nsentencing factors which are inherent in the offense of convic-\ntion, and patently inconsistent with the purposes of Title 18\nU.S.C. Section 3553(a).” R. 18 at 1–2. He complained that the\n“rote application” of those provisions “yields a draconian\nguideline sentencing range of 324–405 months (27 to 33.75\nyears),” a result he characterized as “wholly incompatible”\nwith the section 3553(a) factors and “offensive to the ends of\njustice.” R. 18, at 2. The crux of Griffith’s objection was that\n\fNo. 18-1310 5\n\nguideline 2G2.2 is fundamentally flawed and that a below-\nguidelines sentence was warranted:\n In sum, Mr. Griffith’s objections to the specific\n offense characteristics being assessed against him\n are that the child pornography guidelines, as ap-\n plied to him on the facts of this case, are excessively\n harsh and fundamentally incompatible with the\n §3553(a) sentencing factors. … Accordingly, Mr.\n Griffith asks [for] a substantial downward variance\n from the guidelines at the time of sentencing.\nR. 18 at 6-7. Griffith’s second major objection was that the court\nshould not apply enhanced mandatory minimum terms\nagainst him based on his prior criminal sexual abuse convic-\ntion under 18 U.S.C. § 2252A(b)(1). The district court agreed\nwith this position, finding that the enhanced mandatory\nminimum terms did not apply to him, and that issue is not a\npart of this appeal. Finally, he maintained that Criminal\nHistory Category V over-represented his criminal history.\n At the sentencing hearing, after resolving the enhanced\nmandatory minimum issue in Griffith’s favor, the district court\nnoted that the statutory range for Counts I and II was five to\ntwenty years, and zero to twenty years for Count III. The court\nthen found that the total offense level was 37, the Criminal\nHistory was Category V, and the guidelines range (which had\nbeen calculated to be 324 to 405 months) would become 240\nmonths because of the statutory cap for each count. The court\nasked if the parties concurred “with the Court’s recitation as to\nthe applicable statutory and guideline provisions,” and both\n\f6 No. 18-1310\n\nparties replied, “Yes.” R. 37, Sent. Tr. at 19. The court then\nadopted the revised PSR and its addendum.\n After the parties presented argument regarding Griffith’s\nobjections and the section 3553(a) factors, the government\nasked the court to clarify the guidelines range. The government\npointed out that because Griffith pled guilty to three separate\noffenses involving discrete materials, his sentences could run\nconsecutively, meaning there was a sixty-year statutory cap,\nnot a twenty-year maximum. After asking the probation officer\nto check the calculation, the court announced:\n Yes. The gist is if I ran it consecutively, I could\n impose a guideline range sentence which would be\n the 324 to 405 months. In other words, the statutory\n cap here would be 60 years—…—if run consecu-\n tively. I understand that. … Do you want me to\n refine that? I mean, I think it was—I guess all I’ll say\n is I think it was an error for me to say earlier that the\n guideline range becomes the statutory cap because\n they could be run consecutively. … Is that an accu-\n rate assessment?\nR. 37, Sent. Tr. at 37-38. Defense counsel responded, “Yes.” Id.\n After the defendant made a statement, the court addressed\nthe section 3553(a) factors. In the midst of a thorough discus-\nsion of those factors, the court exhaustively addressed Grif-\nfith’s arguments regarding “the fairness of these guidelines.”\nR. 37, Sent. Tr. at 48. Catering her analysis to the facts of\nGriffith’s offenses, the judge found appropriate the two-level\nenhancement for material depicting prepubescent children, the\nfive-level addition for peer-to-peer exchange of material, and\n\fNo. 18-1310 7\n\nthe four-level bump for the violence of the images. The court\nnoted that it discounted the two-level enhancement for use of\na computer in nearly all cases because it was part of every\noffense and so “not applying the two-level enhancement in\nterms of a variance would be appropriate for use of [a] com-\nputer.” R. 37, Sent. Tr. at 49. On the number of images, the\ncourt noted that it lacked information regarding the length of\nthe videos or what was depicted on them, making it difficult to\ncompute a final number. She declined to use the “boilerplate”\ncomputation of 75 images per video, finding that a four-level\nenhancement for the number of images would be more\nappropriate than the five levels indicated by the guidelines for\n477 photographs and eleven videos:\n I think that the—so, the variance, if you want to call\n it that, for my recalculated guidelines would be 37.\n I think that would be the appropriate reflection of\n the seriousness of your conduct here.\nR. 37, Sent. Tr. at 50. The court then found that Criminal\nHistory Category V appropriately reflected Griffith’s criminal\nconduct over a lengthy span of time. Before announcing the\nsentence, the court remarked that Griffith was not the typical\nchild pornography defendant because most were level 34 with\na Criminal History Category I but Griffith was “squarely” a\nCategory V. R. 37, Sent. Tr. at 57. After defense counsel\nconfirmed that the court had addressed all of Griffith’s\narguments in mitigation, the judge sentenced Griffith to 240\nmonths’ imprisonment on each count, to run concurrently, as\nwell as a term of supervised release. Griffith appeals.\n\f8 No. 18-1310\n\n II.\n On appeal, Griffith contends that the district court commit-\nted procedural error when it failed to correctly calculate the\nguidelines sentence before imposing the 240-month sentence.\nHe also argues that the court imposed a substantively unrea-\nsonable sentence. We apply the abuse of discretion standard in\nreviewing whether sentencing decisions are reasonable. Gall v.\nUnited States, 552 U.S. 38, 46 (2007); United States v. Smith, 860\nF.3d 508, 514 (7th Cir. 2017). We first must ensure that the\ndistrict court committed no significant procedural error, such\nas incorrectly calculating the guidelines range, failing to\nconsider the section 3553(a) factors, selecting a sentence based\non clearly erroneous facts, or failing to explain adequately the\nchosen sentence. Gall, 552 U.S. at 51; Smith, 860 F.3d at 514.\nWhether the district court committed procedural error is a\nquestion of law that we review de novo. Smith, 860 F.3d at 514;\nUnited States v. Mendoza, 510 F.3d 749, 754 (7th Cir. 2007).\n In raising his procedural challenge, Griffith first asserts that\nthe court did not correctly calculate the guidelines range when\nit initially adopted the PSR addendum’s erroneous guidelines\ncalculation. He also maintains that the court failed to rule on a\nfinal guidelines range before pronouncing sentence. These\nobjections do not hold up to a fair reading of the sentencing\ntranscript.\n After adopting the revised PSR and its addendum during\nthe sentencing hearing, the court became aware that the\ndocument contained an error. The revised PSR calculated the\nguidelines range as 324 to 405 months if the enhanced manda-\ntory minimum applied, and as 240 months if that statutory\n\fNo. 18-1310 9\n\nenhancement did not apply. Prior to the hearing, neither party\nnoticed that the statutory cap was not limited to 240 months.\nGriffith had pled guilty to three counts, each with its own cap\nof twenty years (or 240 months), and those terms could be\nimposed consecutively for a total of sixty years. As we noted\nabove, the government alerted the judge to this error after she\nrejected the statutory enhancement and otherwise adopted the\nPSR. The court agreed with the government’s proposed\ncorrection and then found that the statutory maximum was\nsixty years. As the judge clarified at the sentencing hearing,\nthat meant that the guidelines range was not capped at twenty\nyears but was in fact 324 to 405 months, which was well within\nthe sixty-year cap. Both parties expressly agreed that this was\nan accurate assessment of the guidelines. In other words, the\ncourt was no longer adopting the PSR in its entirety but was\namending its earlier ruling to account for the corrected\nstatutory cap of sixty years, making the correct guidelines\nrange 324 to 405 months. An argument that the court erred in\ninitially adopting the erroneous PSR is a non-starter. The court\nrecognized and corrected that error before announcing the\nsentence. Any initial misstep was harmless because it did not\naffect the court’s choice of sentence. United States v. Morris, 775\nF.3d 882, 885 (7th Cir. 2015).\n Griffith next claims that the court re-analyzed the five\nspecific offense characteristics for section 2G2.2 but never\nrecalculated the guidelines to reflect that new analysis. He is\nreferring, of course, to the district court’s discussion of a\ndownward “variance” equivalent to two levels for use of a\ncomputer and one level for the total number of images. In\ncontext, however, it is clear that the court was not re-analyzing\n\f10 No. 18-1310\n\nthe specific offense characteristics in order to correct the\nguidelines calculation but rather was expressing disagreement\nwith the properly calculated guidelines sentence.\n After United States v. Booker, 543 U.S. 220 (2005), a sentenc-\ning judge has the discretion to disagree with a particular\nprovision of the guidelines and to impose a non-guidelines\nsentence that, in his or her judgment, is more consistent with\nthe statutory sentencing factors set out in section 3553(a).\nKimbrough v. United States, 552 U.S. 85 (2007); Smith, 860 F.3d at\n517; United States v. Rosales, 813 F.3d 634, 637 (7th Cir. 2016). In\nthe context of addressing the section 3553(a) factors, the court\nhere explained that it routinely varied downward the equiva-\nlent of two levels because child pornography offenses virtually\nalways involve the use of a computer, making the application\nof section 2G2.2(b)(6) inappropriate, in the court’s opinion. The\ncourt similarly disagreed with the “boilerplate” addition of\nseventy-five images for each video, allowing for a downward\nvariance equivalent to one level. The court then stated that “the\nvariance, if you want to call it that, for my recalculated\nguidelines would be 37.” R. 37, Sent. Tr. at 50. That mention of\nlevel 37 was likely a misstatement because it did not take into\naccount that the court had also adopted the PSR recommenda-\ntion to allow a three-level reduction for acceptance of responsi-\nbility, and so the variance was analogous to level 34, not level\n37. The misstatement had no effect on the sentence, however,\nbecause the court treated the variance as equivalent to a level\n34 sentence, not a level 37 sentence.\n In expressing its policy disagreement with the application\nof certain specific offense characteristics, the court simply\nanalogized the variance to reductions in particular specific\n\fNo. 18-1310 11\n\noffense characteristic levels. The court made this adjustment\nunder section 3553(a), and had no occasion to recalculate the\nfinal guidelines level. In Criminal History Category V, the\nanalogous level 34 sentence yields a guidelines range of 235 to\n293 months. The final sentence of 240 months is on the low end\nof a level 34 sentence and a full 84 months below the bottom of\nthe properly calculated guidelines range. If, as Griffith argues,\nthe court had mistakenly failed to account for acceptance of\nresponsibility when deciding how much to vary, the sentence\nwould have been significantly higher. We have no doubt that\nthe court was not correcting the guidelines calculation but was\nsimply explaining a downward variance under section 3553(a)\nfrom the properly calculated range by way of analogy to the\nguidelines.\n We emphasize that it was not necessary for the court to\nanalogize to the guidelines when explaining the downward\nvariance. United States v. Kuczora, 910 F.3d 904, 908 (7th Cir.\n2018) (“the sentencing court need not frame its explanation of\na sentence in terms of a departure from the guidelines range,\nbut may instead focus on the appropriateness of the sentence\nunder § 3553.”) (quoting United States v. Courtland, 642 F.3d\n545, 550 (7th Cir. 2011)). A court need only explain why a\nsentence is appropriate under the statutory criteria. Kuczora,\n910 F.3d at 908. So long as a court uses the properly calculated\nguidelines range as a starting point, it may explain a decision\nto vary from the range with reference to the section 3553(a)\nfactors alone. Kuczora, 910 F.3d at 908.\n We also note that the court had not found any error in the\nPSR’s calculation of the guidelines (other than the statutory cap\nissue we noted earlier) and had no reason to recalculate the\n\f12 No. 18-1310\n\nguidelines. The court’s Statement of Reasons explaining the\nsentence makes clear that the court intended for the three-level\nreduction to be a variance because of a policy disagreement\nwith the properly calculated guidelines, not a change to the\nguidelines calculation. R. 27, at 3, ¶ VI.D. And Griffith points\nto no error in the district court’s guidelines calculation here.\nIndeed, Griffith did not challenge the factual basis of the\nguidelines calculation or the final offense level in the district\ncourt. He argued instead that the resulting offense level was\ninconsistent with the purposes of sentencing expressed in\nsection 3553(a). He did not deny, for example, that some of the\nphotographs depicted prepubescent minors, or that certain\nimages portrayed violence towards and sexual abuse of\ntoddlers. He conceded that he offered access to his Twitter\naccounts in exchange for additional child pornography, that he\nused a computer and that his offenses involved more than 600\nimages when calculated under guidelines standards. But in\nconceding the basic facts underlying the calculation and the\nresult of the \"rote application\" of the guidelines provisions, he\nobjected only that the result produced a draconian and\nunjustified sentence. In light of all of the circumstances, the\nonly reasonable reading of the sentencing transcript is that the\ncourt understood and announced a correct calculation of the\nguidelines and then varied downward by analogy to certain\nguidelines factors during the discussion of the statutory\nfactors.\n Finally, we can quickly dispense with any claim that the\nfinal sentence was substantively unreasonable. When assessing\nthe substantive reasonableness of a sentence under the abuse\nof discretion standard, we presume that a within-guidelines\n\fNo. 18-1310 13\n\nsentence is reasonable. Rita v. United States, 551 U.S. 338,\n347–56 (2007); United States v. Moore, 851 F.3d 666, 674 (7th Cir.\n2017). That same presumption obviously applies to a below-\nguidelines sentence, such as the one imposed here. Moore, 851\nF.3d at 674. Griffith bears the burden of rebutting that pre-\nsumption by demonstrating that the sentence is unreasonably\nhigh in light of the section 3553(a) factors. United States v.\nMykytiuk, 415 F.3d 606, 608 (7th Cir. 2005).\n Griffith attempts to surmount that challenge by arguing\nthat his collection of child pornography was relatively small;\nthat his crimes involved no contact offenses; that a twenty-year\nterm was a de facto life sentence for a man of his age and health;\nthat the sentence was unnecessary to deter recidivism because\nof his age and the lengthy term of supervised release; and that\nsection 2G2.2 encourages unreasonably harsh sentences. The\ndistrict court carefully considered and addressed each of these\narguments, and Griffith’s claim on appeal amounts to a request\nthat we substitute our judgment for that of the district court. In\nthe usual course, it would be the government, not the defen-\ndant, arguing that the court abused its discretion by granting\na significantly below-guidelines sentence. In any case, the\ndistrict court did not abuse its discretion in granting Griffith an\neighty-four month break from the bottom of the properly-\ncalculated guidelines sentencing range, and the sentence was\nsubstantively reasonable.\n AFFIRMED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4361228/", "author_raw": "Ilana Kara Diamond Rovner"}]}	ROVNER	SYKES	BARRETT	1		{"ROVNER": ", Circuit", "SYKES": ", Circuit", "BARRETT": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4583975/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: United States v. Scott Griffith\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-22\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\nNo. 18-1310\n\nUNITED STATES OF AMERICA,\n Plaintiff-Appellee,\n\n v.\n\n\nSCOTT B. GRIFFITH,\n Defendant-Appellant.\n\n\n Appeal from the United States District Court for the\n Central District of Illinois.\n No. 4:16-cr-40010-SLD-1 — Sara Darrow, Judge.\n\n\n\n ARGUED NOVEMBER 7, 2018 — DECIDED JANUARY 22, 2019\n\n\n Before ROVNER, SYKES, and BARRETT, Circuit Judges.\n ROVNER, Circuit Judge. Scott B. Griffith pled guilty to a\nthree-count indictment that charged him with receiving,\ndistributing, and possessing child pornography. The district\ncourt sentenced him to 240 months’ imprisonment on each\ncount, to run concurrently, as well as a fifteen-year period of\nsupervised release. On appeal, he asserts that the district court\n\f2 No. 18-1310\n\ncommitted procedural error in calculating the guidelines\nrange, and that his resulting sentence is substantively unrea-\nsonable. We affirm.\n I.\n Griffith was charged with: (1) receiving four digital images\nof child pornography, in violation of 18 U.S.C.\n§§ 2252A(a)(2)(A) and 2252A(b)(1); (2) distributing three digital\nimages of child pornography (different than those received), in\nviolation of 18 U.S.C. §§ 2252A(a)(2)(A) and 2252A(b)(1); and\n(3) possessing visual depictions of child pornography in\naddition to those described in the receipt and distribution\ncounts, in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and\n2252A(b)(2). In total, Griffith’s crimes included 477 photo-\ngraphs and eleven videos of unspecified length. All counts\nwere alleged to have occurred during a three-month period\nnear the end of 2015, and all involved the use of Twitter\naccounts. Each time Twitter detected child pornography on\nGriffith’s account, the company closed the account and\nreported the inappropriate activity. Griffith created more than\ntwenty-five Twitter accounts during that three-month period\nin an attempt to thwart the company’s efforts, directing his\nfollowers from one account to the next.\n Prior to committing these crimes, Griffith, who was fifty-\ntwo years old at the time of his arrest, had amassed enough of\na criminal history to land him in Category V, only one level\nbelow the top of the scale. At the age of twenty, he had\nsexually abused a child under the age of thirteen, a conviction\nthat was too old to be counted for criminal history purposes.\nThe vast majority of his remaining criminal history was\n\fNo. 18-1310 3\n\ncomposed of driving offenses and thefts, some minor and some\nmore serious. Additionally, two women had sought and\nreceived orders of protection against Griffith after he threat-\nened them. His criminal record prior to this offense spanned\nnearly thirty years and a dozen of the previous offenses were\neither too old or too minor to be included in the calculation of\nhis criminal history.\n The Presentence Investigation Report (“PSR”)1 noted that\nthe base offense level for the three grouped counts was 22,\nciting U.S.S.G. § 2G2.2. An analysis of specific offense charac-\nteristics added 18 levels for a total of 40. In particular, the PSR\nadded two levels under section 2G2.2(b)(2) because the\nmaterial involved a prepubescent minor. Griffith solicited child\npornography on his Twitter pages in exchange for access to his\nown collection, leading to a five-level increase under section\n2G2.2(b)(3)(b), for distributing the pictures in exchange for\nnon-pecuniary, valuable consideration, a transaction some-\ntimes called a “peer-to-peer exchange.” Four levels were added\nunder section 2G2.2(b)(4)(A) and (B) for material that depicted\nviolence and sexual abuse or exploitation of a toddler. The use\nof a computer contributed two levels under section 2G2.2(b)(6).\nFinally, each of the eleven videos was treated as equivalent to\nseventy-five images which, when added to the 477 photo-\ngraphs, pushed the total images over 600 and added five levels\n\n1\n There are two versions of the PSR in the record, an original and a revised\nversion. The revised version includes an addendum that details the\ndefendant’s objections to the first PSR and the government’s response, as\nwell as some other revisions and recommendations. For the purpose of\ncalculating the offense level and criminal history category, the PSRs are\nessentially the same. We will note any differences when relevant.\n\f4 No. 18-1310\n\nunder section 2G2.2(b)(7)(D), for an adjusted offense level of\n40. After deducting three levels for acceptance of responsibil-\nity, the PSR set the total offense level at 37. Both versions of the\nPSR noted that the guidelines range for a total offense level of\n37 and a criminal history Category V is 324 to 405 months’\nimprisonment. Both PSRs took the position that Griffith’s prior\nconviction for sexual abuse qualified him for enhanced\nmandatory minimums under 18 U.S.C. § 2252A(b)(1), noting\nthat the enhanced terms for Counts I and II were fifteen to\nforty years. Count III carried a minimum of ten years and a\nmaximum of twenty years, assuming that the enhanced\npenalty applied. The revised PSR incorrectly stated that,\nwithout the enhanced mandatory minimums, the guidelines\nrange would be 240 months. Neither party noticed that error\nuntil the sentencing hearing, as we discuss below.\n Griffith filed a number of objections to the PSR in the\ndistrict court, largely falling into three categories. First, he\nobjected to the application of the “specific offense characteris-\ntics” provisions that added eighteen levels to the base offense\nlevel. He contended that the additional levels assessed against\nhim were based on “arbitrary, unreasonable and unwarranted\nsentencing factors which are inherent in the offense of convic-\ntion, and patently inconsistent with the purposes of Title 18\nU.S.C. Section 3553(a).” R. 18 at 1–2. He complained that the\n“rote application” of those provisions “yields a draconian\nguideline sentencing range of 324–405 months (27 to 33.75\nyears),” a result he characterized as “wholly incompatible”\nwith the section 3553(a) factors and “offensive to the ends of\njustice.” R. 18, at 2. The crux of Griffith’s objection was that\n\fNo. 18-1310 5\n\nguideline 2G2.2 is fundamentally flawed and that a below-\nguidelines sentence was warranted:\n In sum, Mr. Griffith’s objections to the specific\n offense characteristics being assessed against him\n are that the child pornography guidelines, as ap-\n plied to him on the facts of this case, are excessively\n harsh and fundamentally incompatible with the\n §3553(a) sentencing factors. … Accordingly, Mr.\n Griffith asks [for] a substantial downward variance\n from the guidelines at the time of sentencing.\nR. 18 at 6-7. Griffith’s second major objection was that the court\nshould not apply enhanced mandatory minimum terms\nagainst him based on his prior criminal sexual abuse convic-\ntion under 18 U.S.C. § 2252A(b)(1). The district court agreed\nwith this position, finding that the enhanced mandatory\nminimum terms did not apply to him, and that issue is not a\npart of this appeal. Finally, he maintained that Criminal\nHistory Category V over-represented his criminal history.\n At the sentencing hearing, after resolving the enhanced\nmandatory minimum issue in Griffith’s favor, the district court\nnoted that the statutory range for Counts I and II was five to\ntwenty years, and zero to twenty years for Count III. The court\nthen found that the total offense level was 37, the Criminal\nHistory was Category V, and the guidelines range (which had\nbeen calculated to be 324 to 405 months) would become 240\nmonths because of the statutory cap for each count. The court\nasked if the parties concurred “with the Court’s recitation as to\nthe applicable statutory and guideline provisions,” and both\n\f6 No. 18-1310\n\nparties replied, “Yes.” R. 37, Sent. Tr. at 19. The court then\nadopted the revised PSR and its addendum.\n After the parties presented argument regarding Griffith’s\nobjections and the section 3553(a) factors, the government\nasked the court to clarify the guidelines range. The government\npointed out that because Griffith pled guilty to three separate\noffenses involving discrete materials, his sentences could run\nconsecutively, meaning there was a sixty-year statutory cap,\nnot a twenty-year maximum. After asking the probation officer\nto check the calculation, the court announced:\n Yes. The gist is if I ran it consecutively, I could\n impose a guideline range sentence which would be\n the 324 to 405 months. In other words, the statutory\n cap here would be 60 years—…—if run consecu-\n tively. I understand that. … Do you want me to\n refine that? I mean, I think it was—I guess all I’ll say\n is I think it was an error for me to say earlier that the\n guideline range becomes the statutory cap because\n they could be run consecutively. … Is that an accu-\n rate assessment?\nR. 37, Sent. Tr. at 37-38. Defense counsel responded, “Yes.” Id.\n After the defendant made a statement, the court addressed\nthe section 3553(a) factors. In the midst of a thorough discus-\nsion of those factors, the court exhaustively addressed Grif-\nfith’s arguments regarding “the fairness of these guidelines.”\nR. 37, Sent. Tr. at 48. Catering her analysis to the facts of\nGriffith’s offenses, the judge found appropriate the two-level\nenhancement for material depicting prepubescent children, the\nfive-level addition for peer-to-peer exchange of material, and\n\fNo. 18-1310 7\n\nthe four-level bump for the violence of the images. The court\nnoted that it discounted the two-level enhancement for use of\na computer in nearly all cases because it was part of every\noffense and so “not applying the two-level enhancement in\nterms of a variance would be appropriate for use of [a] com-\nputer.” R. 37, Sent. Tr. at 49. On the number of images, the\ncourt noted that it lacked information regarding the length of\nthe videos or what was depicted on them, making it difficult to\ncompute a final number. She declined to use the “boilerplate”\ncomputation of 75 images per video, finding that a four-level\nenhancement for the number of images would be more\nappropriate than the five levels indicated by the guidelines for\n477 photographs and eleven videos:\n I think that the—so, the variance, if you want to call\n it that, for my recalculated guidelines would be 37.\n I think that would be the appropriate reflection of\n the seriousness of your conduct here.\nR. 37, Sent. Tr. at 50. The court then found that Criminal\nHistory Category V appropriately reflected Griffith’s criminal\nconduct over a lengthy span of time. Before announcing the\nsentence, the court remarked that Griffith was not the typical\nchild pornography defendant because most were level 34 with\na Criminal History Category I but Griffith was “squarely” a\nCategory V. R. 37, Sent. Tr. at 57. After defense counsel\nconfirmed that the court had addressed all of Griffith’s\narguments in mitigation, the judge sentenced Griffith to 240\nmonths’ imprisonment on each count, to run concurrently, as\nwell as a term of supervised release. Griffith appeals.\n\f8 No. 18-1310\n\n II.\n On appeal, Griffith contends that the district court commit-\nted procedural error when it failed to correctly calculate the\nguidelines sentence before imposing the 240-month sentence.\nHe also argues that the court imposed a substantively unrea-\nsonable sentence. We apply the abuse of discretion standard in\nreviewing whether sentencing decisions are reasonable. Gall v.\nUnited States, 552 U.S. 38, 46 (2007); United States v. Smith, 860\nF.3d 508, 514 (7th Cir. 2017). We first must ensure that the\ndistrict court committed no significant procedural error, such\nas incorrectly calculating the guidelines range, failing to\nconsider the section 3553(a) factors, selecting a sentence based\non clearly erroneous facts, or failing to explain adequately the\nchosen sentence. Gall, 552 U.S. at 51; Smith, 860 F.3d at 514.\nWhether the district court committed procedural error is a\nquestion of law that we review de novo. Smith, 860 F.3d at 514;\nUnited States v. Mendoza, 510 F.3d 749, 754 (7th Cir. 2007).\n In raising his procedural challenge, Griffith first asserts that\nthe court did not correctly calculate the guidelines range when\nit initially adopted the PSR addendum’s erroneous guidelines\ncalculation. He also maintains that the court failed to rule on a\nfinal guidelines range before pronouncing sentence. These\nobjections do not hold up to a fair reading of the sentencing\ntranscript.\n After adopting the revised PSR and its addendum during\nthe sentencing hearing, the court became aware that the\ndocument contained an error. The revised PSR calculated the\nguidelines range as 324 to 405 months if the enhanced manda-\ntory minimum applied, and as 240 months if that statutory\n\fNo. 18-1310 9\n\nenhancement did not apply. Prior to the hearing, neither party\nnoticed that the statutory cap was not limited to 240 months.\nGriffith had pled guilty to three counts, each with its own cap\nof twenty years (or 240 months), and those terms could be\nimposed consecutively for a total of sixty years. As we noted\nabove, the government alerted the judge to this error after she\nrejected the statutory enhancement and otherwise adopted the\nPSR. The court agreed with the government’s proposed\ncorrection and then found that the statutory maximum was\nsixty years. As the judge clarified at the sentencing hearing,\nthat meant that the guidelines range was not capped at twenty\nyears but was in fact 324 to 405 months, which was well within\nthe sixty-year cap. Both parties expressly agreed that this was\nan accurate assessment of the guidelines. In other words, the\ncourt was no longer adopting the PSR in its entirety but was\namending its earlier ruling to account for the corrected\nstatutory cap of sixty years, making the correct guidelines\nrange 324 to 405 months. An argument that the court erred in\ninitially adopting the erroneous PSR is a non-starter. The court\nrecognized and corrected that error before announcing the\nsentence. Any initial misstep was harmless because it did not\naffect the court’s choice of sentence. United States v. Morris, 775\nF.3d 882, 885 (7th Cir. 2015).\n Griffith next claims that the court re-analyzed the five\nspecific offense characteristics for section 2G2.2 but never\nrecalculated the guidelines to reflect that new analysis. He is\nreferring, of course, to the district court’s discussion of a\ndownward “variance” equivalent to two levels for use of a\ncomputer and one level for the total number of images. In\ncontext, however, it is clear that the court was not re-analyzing\n\f10 No. 18-1310\n\nthe specific offense characteristics in order to correct the\nguidelines calculation but rather was expressing disagreement\nwith the properly calculated guidelines sentence.\n After United States v. Booker, 543 U.S. 220 (2005), a sentenc-\ning judge has the discretion to disagree with a particular\nprovision of the guidelines and to impose a non-guidelines\nsentence that, in his or her judgment, is more consistent with\nthe statutory sentencing factors set out in section 3553(a).\nKimbrough v. United States, 552 U.S. 85 (2007); Smith, 860 F.3d at\n517; United States v. Rosales, 813 F.3d 634, 637 (7th Cir. 2016). In\nthe context of addressing the section 3553(a) factors, the court\nhere explained that it routinely varied downward the equiva-\nlent of two levels because child pornography offenses virtually\nalways involve the use of a computer, making the application\nof section 2G2.2(b)(6) inappropriate, in the court’s opinion. The\ncourt similarly disagreed with the “boilerplate” addition of\nseventy-five images for each video, allowing for a downward\nvariance equivalent to one level. The court then stated that “the\nvariance, if you want to call it that, for my recalculated\nguidelines would be 37.” R. 37, Sent. Tr. at 50. That mention of\nlevel 37 was likely a misstatement because it did not take into\naccount that the court had also adopted the PSR recommenda-\ntion to allow a three-level reduction for acceptance of responsi-\nbility, and so the variance was analogous to level 34, not level\n37. The misstatement had no effect on the sentence, however,\nbecause the court treated the variance as equivalent to a level\n34 sentence, not a level 37 sentence.\n In expressing its policy disagreement with the application\nof certain specific offense characteristics, the court simply\nanalogized the variance to reductions in particular specific\n\fNo. 18-1310 11\n\noffense characteristic levels. The court made this adjustment\nunder section 3553(a), and had no occasion to recalculate the\nfinal guidelines level. In Criminal History Category V, the\nanalogous level 34 sentence yields a guidelines range of 235 to\n293 months. The final sentence of 240 months is on the low end\nof a level 34 sentence and a full 84 months below the bottom of\nthe properly calculated guidelines range. If, as Griffith argues,\nthe court had mistakenly failed to account for acceptance of\nresponsibility when deciding how much to vary, the sentence\nwould have been significantly higher. We have no doubt that\nthe court was not correcting the guidelines calculation but was\nsimply explaining a downward variance under section 3553(a)\nfrom the properly calculated range by way of analogy to the\nguidelines.\n We emphasize that it was not necessary for the court to\nanalogize to the guidelines when explaining the downward\nvariance. United States v. Kuczora, 910 F.3d 904, 908 (7th Cir.\n2018) (“the sentencing court need not frame its explanation of\na sentence in terms of a departure from the guidelines range,\nbut may instead focus on the appropriateness of the sentence\nunder § 3553.”) (quoting United States v. Courtland, 642 F.3d\n545, 550 (7th Cir. 2011)). A court need only explain why a\nsentence is appropriate under the statutory criteria. Kuczora,\n910 F.3d at 908. So long as a court uses the properly calculated\nguidelines range as a starting point, it may explain a decision\nto vary from the range with reference to the section 3553(a)\nfactors alone. Kuczora, 910 F.3d at 908.\n We also note that the court had not found any error in the\nPSR’s calculation of the guidelines (other than the statutory cap\nissue we noted earlier) and had no reason to recalculate the\n\f12 No. 18-1310\n\nguidelines. The court’s Statement of Reasons explaining the\nsentence makes clear that the court intended for the three-level\nreduction to be a variance because of a policy disagreement\nwith the properly calculated guidelines, not a change to the\nguidelines calculation. R. 27, at 3, ¶ VI.D. And Griffith points\nto no error in the district court’s guidelines calculation here.\nIndeed, Griffith did not challenge the factual basis of the\nguidelines calculation or the final offense level in the district\ncourt. He argued instead that the resulting offense level was\ninconsistent with the purposes of sentencing expressed in\nsection 3553(a). He did not deny, for example, that some of the\nphotographs depicted prepubescent minors, or that certain\nimages portrayed violence towards and sexual abuse of\ntoddlers. He conceded that he offered access to his Twitter\naccounts in exchange for additional child pornography, that he\nused a computer and that his offenses involved more than 600\nimages when calculated under guidelines standards. But in\nconceding the basic facts underlying the calculation and the\nresult of the \"rote application\" of the guidelines provisions, he\nobjected only that the result produced a draconian and\nunjustified sentence. In light of all of the circumstances, the\nonly reasonable reading of the sentencing transcript is that the\ncourt understood and announced a correct calculation of the\nguidelines and then varied downward by analogy to certain\nguidelines factors during the discussion of the statutory\nfactors.\n Finally, we can quickly dispense with any claim that the\nfinal sentence was substantively unreasonable. When assessing\nthe substantive reasonableness of a sentence under the abuse\nof discretion standard, we presume that a within-guidelines\n\fNo. 18-1310 13\n\nsentence is reasonable. Rita v. United States, 551 U.S. 338,\n347–56 (2007); United States v. Moore, 851 F.3d 666, 674 (7th Cir.\n2017). That same presumption obviously applies to a below-\nguidelines sentence, such as the one imposed here. Moore, 851\nF.3d at 674. Griffith bears the burden of rebutting that pre-\nsumption by demonstrating that the sentence is unreasonably\nhigh in light of the section 3553(a) factors. United States v.\nMykytiuk, 415 F.3d 606, 608 (7th Cir. 2005).\n Griffith attempts to surmount that challenge by arguing\nthat his collection of child pornography was relatively small;\nthat his crimes involved no contact offenses; that a twenty-year\nterm was a de facto life sentence for a man of his age and health;\nthat the sentence was unnecessary to deter recidivism because\nof his age and the lengthy term of supervised release; and that\nsection 2G2.2 encourages unreasonably harsh sentences. The\ndistrict court carefully considered and addressed each of these\narguments, and Griffith’s claim on appeal amounts to a request\nthat we substitute our judgment for that of the district court. In\nthe usual course, it would be the government, not the defen-\ndant, arguing that the court abused its discretion by granting\na significantly below-guidelines sentence. In any case, the\ndistrict court did not abuse its discretion in granting Griffith an\neighty-four month break from the bottom of the properly-\ncalculated guidelines sentencing range, and the sentence was\nsubstantively reasonable.\n AFFIRMED.\n[END_CASE]", "role": "user" } ]
8,443,849	IN RE: Edward L. CALVERT, Debtor-Appellee. Appeal of: National Labor Relations Board	In re Calvert	2019-01-22	No. 17-1895	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Bucklo, Easterbrook, Sykes", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415275/", "author_raw": ""}, {"author": "", "type": "040dissent", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415276/", "author_raw": ""}]}	BUCKLO	EASTERBROOK	SYKES	1		{}	2	1	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/8443849/	Published	0	1	1	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: IN RE: Edward L. CALVERT, Debtor-Appellee. Appeal of: National Labor Relations Board\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-22\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]", "role": "user" } ]
4,583,973	Ray FULLER, Petitioner, v. Matthew G. WHITAKER, Acting Attorney General of the United States, Respondent.	Ray Fuller v. Matthew G. Whitaker	2019-01-23	17-3176	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Wood, Manion, Rovner", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9887900/", "author_raw": ""}, {"author": "", "type": "040dissent", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9887901/", "author_raw": ""}, {"author": "Ilana Kara Diamond Rovner", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\nNo. 17-3176\n\nRAY FULLER,\n Petitioner,\n\n v.\n\n\nMATTHEW G. WHITAKER, Acting\nAttorney General of the United\nStates,\n Respondent.\n\n\n On Petition for Review of an Order\n of the Board of Immigration Appeals\n No. A077-811-635\n\n\n\n ARGUED NOVEMBER 1, 2018 — DECIDED JANUARY 23, 2019\n\n\n Before WOOD, Chief Judge, and MANION and ROVNER, Circuit\nJudges.\n ROVNER, Circuit Judge. Ray Fuller asked the Board of\nImmigration Appeals to exercise its authority to reopen his\nremoval proceeding sua sponte so that he could present new\n\n2 No. 17-3176\n\nevidence in support of his request to defer his removal from\nthis country under the Convention Against Torture (“CAT”).1\nFuller contends that he likely will face torture upon return to\nhis native Jamaica because he is bisexual. The Board previously\nhad sustained an Immigration Judge’s finding that Fuller had\nnot presented a credible case as to his alleged sexual orienta-\ntion and fear of torture. In support of his motion to reopen,\nFuller submitted to the Board several new letters of support\nfrom acquaintances attesting to prior incidents in which he was\nthe victim of violence in Jamaica owing to his sexual orienta-\ntion. In denying this request, the Board explained that\n“[Fuller’s] motion does not challenge our conclusions regard-\ning his credibility or his eligibility for deferral of removal, and\nwe do not find that his letters of support would materially alter\nthese findings.” A.R. 3 (internal record citation omitted).\nBecause the Board’s stated rationale for disposing of Fuller’s\nmotion reflects a misapprehension of the basis for his request,\nand because we cannot be confident that the Board’s mistake\ndid not taint the exercise of its otherwise unreviewable\ndiscretion over the merits of the motion, we conclude that the\nBoard committed legal error in denying his request for relief.\nOn that basis, we grant Fuller’s petition for review and remand\nto the Board for further proceedings.\n\n\n1\n We recognize that when the Board acts in response to a litigant’s request,\nit is not acting sua sponte. See Shah v. Holder, 736 F.3d 1125, 1126 (7th Cir.\n2013). We shall nonetheless refer to the Board’s authority to reopen a\nproceeding sua sponte in order to distinguish that power from the Board’s\ndistinct authority to entertain a one-time motion to reopen filed within 90\ndays of final agency action. Compare 8 C.F.R. § 1003.2(c)(2) with id.\n§ 1003.2(a).\n\nNo. 17-3176 3\n\n I.\n Our summary of the facts may be somewhat abbreviated,\nas this is the fourth time that Fuller’s case has come before us.\nWe refer the reader to our two prior published decisions for\nadditional background. See Fuller v. Lynch, 833 F.3d 866 (7th\nCir. 2016) (“Fuller I”); Fuller v. Sessions, 879 F.3d 265 (7th Cir.\n2018) (“Fuller II”).\n Fuller entered the country legally on a fiancé visa in 1999\nand married an American citizen the following year. In 2004,\nhe pleaded guilty to attempted criminal sexual assault and an\nIllinois court ordered him to serve a term of 30 months’\nprobation. After he later violated the terms of his probation,\nFuller was re-sentenced to a prison term of four years.\n Following Fuller’s release from prison in 2014, the Depart-\nment of Homeland Security (“DHS”) initiated removal\nproceedings against him. The government charged, and the\nBoard would later agree, that Fuller was removable from the\nUnited States pursuant to 8 U.S.C. § 1227(a)(1)(D)(i) because he\nhad lost his conditional permanent resident status. (In 2004,\nFuller and his wife, whom he divorced the following year,\nfailed to appear for a mandatory interview with immigration\nofficials, triggering the revocation of his conditional residency\nstatus.)2 And because, as the Board would also agree, Fuller’s\nconviction for attempted criminal sexual assault constituted a\n\n\n2\n The government alleged that Fuller was removable on other grounds, but\nthe Board found it unnecessary to reach these other grounds. Fuller does\nnot contest that he is removable on the ground that he lost his status as a\nconditional permanent resident of the United States.\n\n4 No. 17-3176\n\n“particularly serious crime,” he was disqualified from seeking\nwithholding of removal under both the Immigration and\nNationality Act and the CAT. See 8 U.S.C. § 1231(b)(3)(B)(ii).\n Fuller instead sought deferral of his removal under the\nCAT, alleging that he was likely to be tortured as a bisexual\nwere he returned to Jamaica. See 8 C.F.R. §§ 208.16(c)(4),\n208.17(a).3 In a hearing before the Immigration Judge (“IJ”),\nFuller testified to a history of sexual relationships with both\nmen and women beginning in his preteen years and continuing\nthrough his (by then dissolved) marriage to a U.S. citizen.\nFuller also recounted a number of incidents in Jamaica in\nwhich he was physically and verbally attacked by those who\nperceived him to be gay; one of these incidents involved a\nshooting by a homophobic mob in the gay-friendly resort town\nof Ocho Rios. Fuller further indicated that his sisters had\ndisowned him for his sexual orientation. In addition to his\ntestimony, Fuller presented the IJ with seven letters from his\nchildren and friends, attesting to both his bisexuality and to the\nviolence he had experienced in Jamaica on account of his\nsexual orientation.\n The IJ found that Fuller’s testimony was not credible; and\nbecause she disbelieved his testimony and also questioned the\nveracity of the letters he had submitted, the IJ concluded that\n\n\n3\n For purposes of the CAT, torture is defined to include “any act by which\nsevere pain or suffering, whether physical or mental, is intentionally\ninflicted on a person … for any reason based on discrimination of any kind,\nwhen such pain or suffering is inflicted by or at the instigation of or with\nthe consent or acquiescence of a public official or other person acting in an\nofficial capacity.” 8 C.F.R. § 208.18(a)(1).\n\nNo. 17-3176 5\n\nFuller had not established that he is bisexual and as such faces\na likelihood of torture if he is forced to return to Jamaica. She\nconsequently denied his request for relief under the CAT. A.R.\n181–202. In finding that Fuller’s testimony was not credible, the\nIJ cited discrepancies both as to certain basic facts (including\nthe number and names of sisters, as well as confusing his sister\nwith his mother in his testimony) and as to the details of the\nprior instances of violence he allegedly had experienced in\nJamaica (including a ten-year discrepancy as to the timing of\nthe Ocho Rios shooting and which of his former boyfriends\nwas present at the incident, as recounted in his written state-\nment versus his subsequent testimony in court). As for the\nsupporting letters from Fuller’s friends, the IJ noted that none\nof the authors were available to testify although two of them\nwere former boyfriends who lived in the United States. The\nletters also diverged in certain respects from Fuller’s testi-\nmony: one letter suggested that Fuller had been shot on\nmultiple occasions in Jamaica, whereas Fuller had only\ndescribed one shooting. And all of the letters contained the\nsame centered, dotted signature line, which caused the IJ to\ndoubt their provenance. A.R. 192–96. The IJ summarized:\n [Fuller’s] credibility is seriously lacking in this case.\n He is unable to recall many of the most important\n details of the events that he claims … had an impact\n on his life, particularly with respect to his claim of\n being bisexual. He has failed to provide the Court\n with many documents that could have clarified\n many of these inconsistencies, such as medical\n records, police reports, corroborating letters of\n support or witnesses. The letters that he has pre-\n\n6 No. 17-3176\n\n sented to the Court are given very little weight\n because the Court is unable to verify their authentic-\n ity and has not had an opportunity to cross-examine\n or to even hear testimony from any of the makers of\n these statements. The respondent has given very\n little corroborative evidence to evaluate his claim\n that he is in fact bisexual and that he was in fact\n harmed in Jamaica on account of his sexual orienta-\n tion in the past.\nA.R. 195.\n In 2015, the Board affirmed the denial of CAT relief to\nFuller based on the IJ’s adverse credibility findings. A.R. 61–62.\n“[Fuller] has shown no clear error in the Immigration Judge’s\ndetailed findings of fact, to include the findings that the\nrespondent did not credibly testify and did not establish that\nhe has ever been bisexual. The respondent’s inconsistent\nstatements and implausible explanations fully support an\nadverse credibility determination.” A.R. 62 (internal record\ncitation omitted).\n Fuller then appealed to this court, but we denied his\npetition for review in a divided opinion. Fuller I, 833 F.3d 866.\nWe concluded in relevant part that the IJ’s adverse credibility\ndetermination, as affirmed by the Board, was supported by\nsubstantial evidence. Id. at 871–72. Although we acknowledged\nthat some of the IJ’s stated reasons for disbelieving Fuller were\noff the mark (including, for example, the citation of his mar-\nriage to a woman and multiple other prior heterosexual\nrelationships as a reason to think he was not bisexual), others\nwere sound. The latter included the discrepancies between his\n\nNo. 17-3176 7\n\nwritten statement and his oral testimony as to when the Ocho\nRios shooting had occurred, his confusion as to the number\nand names of his sisters (and mixing up his mother with his\nsister), and a material lie he had told government officials in\n2001 in seeking permission to visit Jamaica. We were satisfied\nthat the IJ’s adverse credibility finding was amply supported\nin these respects. Id. We added that if Fuller were able to gather\nnew evidence demonstrating that the IJ was mistaken as to his\nsexual orientation, he could ask the IJ to sua sponte reopen the\nproceeding. Id. at 872. The dissent, unpersuaded that these\ndiscrepancies cast doubt on Fuller’s claims that he was bisexual\nand had suffered violence as a result, contended that the\npetition for review should have been granted. Id. at 872–74.\n In January 2017, Fuller filed a motion asking the Board to\nreconsider and/or reopen the proceedings. A.R. 48–54. The\nprincipal contention that Fuller advanced in his motion was\nthat the IJ had erred in rejecting his representation that he is\nbisexual and as such faces likely persecution and torture upon\nhis return to Jamaica. Among other points, Fuller argued that\nhe had testified without contradiction that he is bisexual and\nhas been rejected by his family members because of his sexual\norientation; that given the hostility and violence bisexual\nindividuals experience in Jamaica, he would have no reason to\nfalsely characterize himself as bisexual; that for the same\nreasons, it was difficult for him to locate gay or bisexual\nJamaicans who would put themselves at risk by giving\ntestimony that would confirm his bisexuality; that the inconsis-\ntencies and mistakes in his testimony before the IJ were due to\nhis fear of being returned to Jamaica; and that the IJ’s rationale\nfor discrediting his testimony betrayed her own misunder-\n\n8 No. 17-3176\n\nstandings about bisexuality. A.R. 50–52, 54. Fuller added that\nhe had been able to obtain affidavits—actually, letters—from\nindividuals who supported his claim that had not been\navailable to him previously. A.R. 53.\n The Board denied Fuller’s motion in February 2017. A.R. 43.\nThe Board noted both that the motion was untimely and that,\nalthough Fuller referenced new affidavits that were unavail-\nable to him previously, “he has not submitted such evidence\nwith the motion, nor has he shown that a different outcome\nmay be warranted based on the new evidence.” A.R. 43.\n On receipt of the Board’s order denying his motion, Fuller\nfiled what he styled as a “Statement of Notice to Appeal\n(motion to reopen).” A.R. 22. In that statement, Fuller chal-\nlenged the Board’s declaration that he had not submitted the\nnew evidence referred to in his motion to reopen, observing,\n“The new evidence was the cornerstone of my motion so there\nis no way that it would not be sent in with the motion. I think\nthat this was a clerical mishap that caused this and I am now\nmaking sure the new pieces of evidence are included.” A.R. 22.\nFuller went on to summarize briefly his basis for asking the\nBoard to reopen his removal proceeding (and on what grounds\nhe was seeking deferral of removal), and concluded his\nstatement with the following: “I have new evidence to submit\nto the court to help to prove my case. I pray that I will be given\nthe chance to prove my credibility in court with the help of the\nnew evidence, and garner a positive outcome to my situation.”\nA.R. 22. He attached to the statement copies of the three letters\nreferred to in his prior motion to reconsider and/or reopen.\n\nNo. 17-3176 9\n\n The Board treated Fuller’s “statement” as a second motion\nto reopen, and denied that motion. A.R. 3–4. The Board noted\nin the first instance that the motion was barred in both number\nand untimeliness, and that Fuller had not identified any\napplicable exception to those limits. Nor, in the Board’s view,\nhad Fuller demonstrated that the circumstances of his case\nwere so exceptional as to warrant the exercise of the Board’s\nauthority to sua sponte reopen the proceedings. A.R. 3. The\nBoard explained:\n Even accepting [Fuller’s] argument that he previ-\n ously submitted his proffered letters of support, we\n find no basis on which to alter our October 27, 2015\n dismissal of his appeal or our previous denial of his\n motion to reopen. [Fuller’s] motion does not chal-\n lenge our conclusions regarding his credibility or his\n eligibility for deferral of removal, and we do not\n find that his letters of support would materially alter\n these findings. …\nA.R. 3 (internal record citations omitted).\n Fuller then filed the instant petition for review of the\nBoard’s order, along with a request that we stay his removal\npending resolution of the merits of his petition. After first\ndenying Fuller a stay, see Fuller II, 879 F.3d 265, we ultimately\nagreed to stay his removal and appointed counsel to represent\nhim. With the benefit of briefing and argument, we now\nproceed to the merits of Fuller’s petition for review.\n\n10 No. 17-3176\n\n II.\n We begin by addressing the limits of our jurisdiction. With\nexceptions not applicable here, a petitioner is limited to one\nmotion to reopen filed within 90 days of the Board’s final\nadministrative decision. See 8 U.S.C. § 1229a(c)(7)(A) & (C)(i);\n8 C.F.R. § 1003.2(c)(2). Fuller sought reopening long after the\n90-day time limit had expired and, consequently, his only\nrecourse was to ask the Board to exercise its authority to\nreopen the removal proceeding sua sponte, see 8 C.F.R.\n§ 1003.2(a) (“The Board may at any time reopen on its own\nmotion any case in which it has rendered a decision.”), a power\nthe Board has said it will reserve for “exceptional situations,”\nIn re J– J–, 21 I. & N. Dec. 976, 984 (B.I.A. 1997); see also In re\nG– D–, 22 I. & N. Dec. 1132, 1133–34 (B.I.A. 1999). Because the\ngoverning regulation permits but does not require the Board\nto exercise this power and there is no law defining what\nsituations will qualify as “exceptional,” there is no meaningful\nstandard by which to evaluate the exercise of the Board’s\ndiscretion, and consequently the merits of the Board’s decision\nto deny a motion to reopen sua sponte are unreviewable. Anaya-\nAguilar v. Holder, 683 F.3d 369, 372 (7th Cir. 2012) (“Anaya-\nAguilar I”) (collecting cases); see also Fuller II, 879 F.3d at 268.\nBut we do possess the authority to recognize and address\nconstitutional transgressions and other legal errors that the\nBoard may have committed in disposing of such a motion, see\n8 U.S.C. § 1252(a)(2)(D); Fuller II, 879 F.3d at 268; Zambrano-\nReyes v. Holder, 725 F.3d 744, 751 (7th Cir. 2013); Anaya-Aguilar\nv. Holder, 697 F.3d 1189, 1190 (7th Cir. 2012) (clarifying Anaya-\nAguilar I on denial of rehearing), including whether Board’s\nstated rationale for denying such a motion indicates that it\n\nNo. 17-3176 11\n\nignored evidence that the alien tendered in support of his\nrequest, Fuller II, 879 F.3d at 268 (citing Joseph v. Lynch, 793 F.3d\n739, 741–42 (7th Cir. 2015)). Contrary to the government’s\nargument, the REAL ID Act of 2005, which stripped us of the\nauthority to review various discretionary decisions of the\nBoard, did not alter our ability to address such legal errors. See\n§ 1252(a)(2)(D); Cevilla v. Gonzales, 446 F.3d 658, 660 (7th Cir.\n2006).4\n Fuller charges the Board with two legal errors in disposing\nof his motion to reopen. He contends first that the Board\nmisapprehended the thrust of his motion to reopen and the\nsignificance of the additional letters of support he submitted in\nsupport of the motion. The Board understood Fuller not to be\nchallenging its conclusions as to his credibility or his eligibility\nfor deferral of removal. But that understanding cannot be\nsquared with the substance of his motion, which was a direct\nchallenge to these conclusions, Fuller argues. Fuller also\ncontends that the Board’s summary rejection of his new\nevidence as “insufficient to materially alter” its adverse\nfindings was so perfunctory as to preclude confirmation that\nthe Board gave meaningful consideration to his evidence.\n\n\n4\n At oral argument, the government’s counsel suggested that because Fuller\nis seeking reopening in order to renew his request for relief under the CAT,\nand because a denial of relief under the CAT itself is reviewable by this\ncourt, see Teneng v. Holder, 602 F. App’x 340, 347 (7th Cir. 2015) (non-\nprecedential decision); Wani Site v. Holder, 656 F.3d 590, 593 (7th Cir. 2011),\nsection 1252(a)(2)(D) does not apply to the Board’s refusal to exercise its\nauthority to sua sponte reopen the proceedings. Because that contention was\nnot raised in the government’s brief, we deem it waived. E.g., Pope v. Perdue,\n889 F.3d 410, 417 n.4 (7th Cir. 2018).\n\n12 No. 17-3176\n\nBecause we agree with Fuller that the Board mischaracterized\nthe basis for his motion, and because we can have no confi-\ndence that its error did not taint the exercise of its discretion as\nto the merits of the motion, we will remand the matter to the\nBoard on that basis, without deciding whether the Board,\nabsent that error, was obligated to say more than it did in\ndenying Fuller’s request that it reopen the removal proceeding\nsua sponte.\n We should note at the outset that we regard Fuller’s\n“Statement of Notice to Appeal (motion to reopen),” which the\nBoard treated as a second motion to reopen sua sponte, simply\nas an effort to supplement the record with the three new letters\nof support that were somehow missing from Fuller’s prior\nmotion. The “Statement,” as we read it, did not purport to\nmake any new arguments in favor of reopening or even to\naddress the Board’s rationale in denying his prior motion,\nbeyond tendering the letters that the Board had said were\nmissing from Fuller’s prior submission. Certainly it was within\nthe Board’s authority to characterize Fuller’s “Statement” as a\nsecond motion to reopen; we do not mean to suggest other-\nwise. But, in determining whether the Board committed any\nlegal error, we shall evaluate the Board’s order disposing of\nthat second motion in light of the arguments Fuller advanced\nboth in his “Statement” and in his first motion to reopen, which\nwere of one piece.\n The Board said in its order that Fuller was not challenging\nits prior conclusions regarding his credibility or his eligibility\nfor deferral of removal; but that declaration cannot be recon-\nciled with either the letter or the spirit of Fuller’s request for\nrelief. Nowhere in either his motion to reopen or in his follow-\n\nNo. 17-3176 13\n\nup “Statement” did Fuller purport to forgo a challenge to the\nIJ’s finding (as sustained by the Board) that he was not credible\nas to his sexual orientation and history of persecution in\nJamaica and that, consequently, he could not claim eligibility\nfor deferral of removal under the CAT as a bisexual who was\nlikely to be tortured. Indeed, considering that the Board’s 2015\norder had deemed Fuller ineligible for deferral of removal on\nthe strength of the IJ’s finding that he was not credible as to his\npurported sexual orientation, it would be surprising if Fuller’s\nmotion did not challenge the Board’s conclusions as to his\ncredibility and, in turn, his eligibility for deferral of removal. It\nis true that Fuller made statements in his motion to reopen to\nthe effect that the IJ’s adverse credibility determination “cannot\nand does not preclude him from being a bisexual” and “does\nnot change the fact that [t]he Respondent is bisexual.” A.R. 51.\nBut such statements cannot reasonably be construed as\naccepting, even for the sake of argument, the IJ’s credibility\nfinding. The entire thrust of the motion to reopen was that\nFuller is, in fact, bisexual and has in fact, experienced violence\nin Jamaica as a result of his sexual orientation; that the IJ’s\nrationale in discrediting him on these points was suspect; and\nthat the new letters of support tendered in support of his\nrequest to reopen would eliminate any doubt as to the likeli-\nhood that he will be tortured if forced to return to Jamaica. If\nFuller did not say so expressly, it was nonetheless clear from\nthe substance of his arguments that he meant to challenge the\nadverse credibility determination and the resulting finding that\nhe had no basis on which to seek deferral of removal. See A.R.\n51 (“The pertinent facts should be that [Fuller] testified without\ncontradiction that he [is] bisexual, [and] he was rejected by his\n\n14 No. 17-3176\n\nfamily because of this.”); A.R. 54 (“The Immigration Judge’s\nassertion that [Fuller] was not in danger if removed to Jamaica\nis clearly a decision made with the lack of in-depth investiga-\ntion by the fact-finders in this case.”). And, indeed, Fuller\nultimately did say this expressly in his “Statement”: “I have\nnew evidence to submit to the court to help to prove my case.\nI pray that I will be given the chance to prove my credibility in\ncourt with the help of the new evidence … .” A.R. 22.\n So the Board’s understanding of Fuller’s motion to\nreopen—and of what challenges he was purportedly forgo-\ning—was erroneous. And to the extent that misunderstanding\nnecessarily affected how the Board exercised its discretion as\nto the merits of his motion, it amounts to a legal error that\nentitles him to relief. We have repeatedly said that the Board\ncommits a legal error within our jurisdiction to address when\nit ignores, misapplies, or fails to meaningfully consider the\nevidence an alien has submitted in support of his motion to\nreopen sua sponte. See Arej v. Sessions, 852 F.3d 665, 667 (7th Cir.\n2017); Ni v. Holder, 715 F.3d 620, 630 (7th Cir. 2013); Moosa v.\nHolder, 644 F.3d 380, 386 (7th Cir. 2011). Contrary to the\ngovernment’s suggestion, our ability to recognize such an error\nis not dependent on the particular reasons why an alien is\nasking the Board to exercise its sua sponte authority, be it a\nsubsequent change in the law, see In re G– D–, supra, 22 I. & N.\nDec. at 1135, or (as here) the availability of new evidence\nsupporting the alien’s claim for relief. When the Board\nmischaracterizes the evidence tendered or misapprehends the\npurpose for which it is offered, it has not complied with its\nduty to recognize and consider the basis on which the alien has\n\nNo. 17-3176 15\n\nasked the Board to exercise its regulatory authority to reopen\nthe proceedings sua sponte. See Arej, 852 F.3d at 667.\n We acknowledge that the Board, after stating that Fuller\nwas not challenging its findings as to his credibility and\neligibility for deferral of removal, added that “we do not find\nthat his letters of support would materially alter these find-\nings,”(A.R. 3); but that addition does not convince us that we\nshould deny Fuller’s petition for review. Having misappre-\nhended or mischaracterized what findings Fuller was or was\nnot challenging in his motion to reopen, we cannot be confi-\ndent that the Board’s additional half-sentence as to the import\nof Fuller’s new evidence represents an independent and well-\nconsidered alternative ground for the Board’s judgment. We\nmight have more assurance in that regard had the Board said\nsomething more about the letters of support and why the\nBoard did not think they would materially alter its assessment\nof whether he is entitled to deferral of removal. But the Board’s\nfailure to elaborate on this point leaves us with no assurance\nthat the Board’s exercise of discretion was unaffected by its\nerror in appreciating the purpose of Fuller’s new evidence. To\nbe clear, our point is not that the Board must say enough to\nconvince us that the Board exercised its discretion “correctly”\non Fuller’s motion to reopen; the merits of its ruling are of\ncourse beyond the limited scope of our review. But in the\nimmediate wake of a grave mischaracterization of the basis for\nFuller’s motion, the Board’s additional boilerplate observation\nthat Fuller’s new letters would not materially alter its prior\nadverse findings cannot eradicate doubt as to whether the\nBoard actually considered Fuller’s evidence and understood\nwhat he was arguing based on that evidence. Wholly apart\n\n16 No. 17-3176\n\nfrom the question of how much the Board was obligated in the\nfirst instance to say in disposing of Fuller’s motion, the glaring\nerror in what it did say suggests it may never have given\nmeaningful consideration to Fuller’s evidence. The Board’s\norder as written leaves us in the same position we would be if\nits stated rationale indicated that it had altogether ignored the\nevidence and arguments Fuller put before it. See Joseph, 793\nF.3d at 741–42; Kiorkis v. Holder, 634 F.3d 924, 928 (7th Cir.\n2011); Iglesias v. Mukasey, 540 F.3d 528, 531 (7th Cir. 2008).\n The merits of Fuller’s case for the sua sponte reopening of\nhis removal proceeding are for the Board and the Board alone\nto judge. Nothing in our opinion should be construed as a\nsignal that we believe Fuller is entitled to reopening; our views\non that question are, in any event, irrelevant. Suffice it to say\nthat the Board in this case plainly misapprehended the basis for\nFuller’s motion and then dispensed with the merits of the\nmotion in a perfunctory half-sentence, giving us no assurance\nthat it genuinely exercised its discretion as to what Fuller was\nactually arguing. The Board’s legal error compels us to return\nthe matter to the Board for reconsideration.\n III.\n We GRANT the petition for review and REMAND the case\nto the Board for further proceedings consistent with this\nopinion.\n\n17 No. 17‐3176", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4361226/", "author_raw": "Ilana Kara Diamond Rovner"}, {"author": "MANION, Circuit Judge, dissenting", "type": "dissent", "text": "MANION, Circuit Judge, dissenting. The court’s opinion \nadmirably attempts to toe the thin line between reviewing a \ndecision of the Board of Immigration Appeals to ensure it \nexercised its discretion and reviewing the Board’s exercise of \ndiscretion itself. But it strays from the former into the latter. \nTherefore, I respectfully dissent. \n I. \n An immigration judge (IJ) found Ray Fuller lacked credi‐\nbility and denied him relief under the Convention Against \nTorture. The Board affirmed the decision, concluding Fuller \nfailed to show clear error concerning the IJ’s credibility de‐\ntermination. A.R. 62 (“[Fuller’s] inconsistent statements and \nimplausible explanations fully support an adverse credibility \ndetermination.”). We denied Fuller’s petition for review. See \nFuller v. Lynch (Fuller I), 833 F.3d 866, 872 (7th Cir. 2016). In \naccord with the deferential standard of review we apply in \nthese cases, we too concluded there was sufficient evidence \nto support the IJ’s credibility determination. Specifically, we \nconsidered “Fuller’s inability to recall significant details” of \nhis alleged shooting (such as the decade in which it oc‐\ncurred), his confusion concerning his sisters and his mother, \nthe suspiciousness of his letters of support, and his lie on his \n2001 immigration application. Id. at 869–71. \n Fuller then asked the Board to exercise its sua sponte au‐\nthority to reopen his removal proceedings, claiming he had \nattached new evidence to the motion. See 8 C.F.R. § 1003.2(a). \nThe Board declined, noting Fuller had not attached any new \nevidence to his motion. Fuller made another motion, this \ntime definitely attaching three new letters in support of his \nclaims. The Board declined again. The critical sentence of the \nBoard’s second decision is as follows: “The respondent’s mo‐\n\nNo. 17‐3176 18 \n\ntion does not challenge our conclusions regarding his credi‐\nbility or his eligibility for deferral of removal, and we do not \nfind that his letters of support would materially alter these \nfindings.” A.R. 3 (internal record citations omitted). Fuller \npetitions us again. \n II. \n Appellate review of the Board’s decisions concerning its \nsua sponte authority is severely limited. We have jurisdiction \nonly to review for legal or constitutional errors. Anaya‐\nAguilar v. Holder, 697 F.3d 1189, 1190 (7th Cir. 2012); see also \nArej v. Sessions, 852 F.3d 665, 668 (7th Cir. 2017) (Sykes, J., \nconcurring in the judgment) (“[W]e lack jurisdiction to re‐\nview how the [Board] evaluated and weighed [the petition‐\ner’s] evidence or to test its decision for abuse of discretion; \nwe may review its decision only for errors of law and consti‐\ntutional infirmities.”). We have defined “legal error” to in‐\nclude the Board’s failure “to exercise discretion at all by \ncompletely ignoring an argument.” Iglesias v. Mukasey, 540 \nF.3d 528, 530–31 (7th Cir. 2008). \n And that is the legal error the court finds here. The court \ngrants Fuller’s petition because of the Board’s statement that \nFuller was not challenging the Board’s “conclusions regard‐\ning his credibility or his eligibility for deferral.” The court \ncalls this “a grave mischaracterization” that “cannot be rec‐\nonciled with either the letter or the spirit of Fuller’s request \nfor relief.” Majority Op. at 12, 15. I disagree. \n First, Fuller’s second motion1 did not clearly challenge \nthe Board’s conclusions. Fuller’s pro se motion (his “State‐\n \n 1 The court treats Fuller’s first and second motions to reopen as “of \none piece.” Majority Op. at 12. But the court accepts the Board was well \n\n19 No. 17‐3176\n\nment”) contains three paragraphs. In the first paragraph, \nFuller asserts he attached the letters to the first motion and \nstates there must have been a clerical error. The second par‐\nagraph reiterates what he has said all along in these proceed‐\nings (he says he is bisexual, that he has experienced violence \nin Jamaica, and that he will experience more if he returns) \nand asks the Board to overturn the judgment in his case. The \nfinal paragraph asks for an opportunity “to present [his] case \nto the immigration court” and to “be given the chance to \nprove [his] credibility in court with the help of the new evi‐\ndence.” A.R. 22. Apart from that last statement, Fuller never \nmentions his credibility and never directly addresses his \ncredibility issues, which were the basis for the denial of his \npetition for deferral of removal. For instance, he does not \nexplain why his assertions should be trusted when he could \nnot keep straight whether he got shot in the 1980s or the \n1990s or when he has previously lied on an immigration ap‐\nplication. Neither does the restatement of his allegations \nnecessarily amount to a “challenge” to the Board’s earlier \ndeterminations. The IJ found Fuller did not testify credibly, \nand the Board concluded there was no clear error in that \nfinding. The Board was not required to treat Fuller’s re‐\nstatement of a summary of his own testimony as a “chal‐\nlenge” to that conclusion. Cf. Anderson v. Hardman, 241 F.3d \n544, 545–46 (7th Cir. 2001) (dismissing a pro se appeal where \nthe appellant “offer[ed] no articulable basis for disturbing \n\n\n \nwithin its power to treat Fuller’s second filing as an independent motion. \nId. If it was acceptable for the Board to do that, then we should not make \nit unacceptable by treating the two as one for the purposes of our review. \nTherefore, I treat the second motion on its own. \n\nNo. 17‐3176 20 \n\nthe district court’s judgment” and “simply repeat[ed] certain \nallegations of his complaint and cite[d] one irrelevant case”). \n So Fuller’s motion is ambiguous about whether it “chal‐\nlenges” the Board’s determinations, and this brings me to \nmy next point: we should not be in the business of interpret‐\ning “the spirit” of motions made to the Board. The resolution \nof ambiguities is a power that should lie with the entity ex‐\nercising discretion, not the one exercising an extremely lim‐\nited power of review. We are, after all, only concerned with \nwhether the Board completely ignored Fuller’s motion, not \nwith how the Board interpreted it. See Joseph v. Lynch, 793 \nF.3d 739, 742 (7th Cir. 2015) (“Joseph’s disagreement with \nthe Board about the significance of his and his brother’s \nstatements is simply an argument about how those state‐\nments were weighed. It does not clear the jurisdictional \nbar … .”).2 And the Board’s determination that Fuller’s mo‐\ntion did not challenge the Board’s earlier conclusions is a \nreasonable interpretation of the ambiguous pro se motion.3 \nAccordingly, there has been no showing the Board completely \nignored Fuller’s motion or arguments. \n \n\n\n \n 2 The majority in Arej v. Sessions conflated these considerations and \nheld the Board ignored the petitioner’s evidence because the Board \nreached a conclusion the majority deemed incorrect. 852 F.3d at 667 (ma‐\njority opinion). We should not allow that faulty rational to continue. \n 3 If the Board’s decision showed an absolute lack of understanding \nconcerning the contents of the motion, it would be appropriate for this \ncourt to question whether the Board actually considered the motion. But \nI conclude that is not what happened here. \n\n21 No. 17‐3176\n\n III. \n The court returns this case to the Board for it to exercise \nits discretion in resolving the merits—the court acknowledg‐\nes it has no authority to direct how the Board should exercise \nthat discretion. I completely agree with that description of \nour power. However, as I conclude the Board has already \ndemonstrated it exercised its discretion in resolving Fuller’s \nmotion, I respectfully dissent.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4361226/", "author_raw": "MANION, Circuit Judge, dissenting"}]}	WOOD	MANION	ROVNER	1		{}	4	2	0	2	null	https://www.courtlistener.com/api/rest/v4/clusters/4583973/	Published	1	1	1	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Ray FULLER, Petitioner, v. Matthew G. WHITAKER, Acting Attorney General of the United States, Respondent.\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-23\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\nNo. 17-3176\n\nRAY FULLER,\n Petitioner,\n\n v.\n\n\nMATTHEW G. WHITAKER, Acting\nAttorney General of the United\nStates,\n Respondent.\n\n\n On Petition for Review of an Order\n of the Board of Immigration Appeals\n No. A077-811-635\n\n\n\n ARGUED NOVEMBER 1, 2018 — DECIDED JANUARY 23, 2019\n\n\n Before WOOD, Chief Judge, and MANION and ROVNER, Circuit\nJudges.\n ROVNER, Circuit Judge. Ray Fuller asked the Board of\nImmigration Appeals to exercise its authority to reopen his\nremoval proceeding sua sponte so that he could present new\n\n2 No. 17-3176\n\nevidence in support of his request to defer his removal from\nthis country under the Convention Against Torture (“CAT”).1\nFuller contends that he likely will face torture upon return to\nhis native Jamaica because he is bisexual. The Board previously\nhad sustained an Immigration Judge’s finding that Fuller had\nnot presented a credible case as to his alleged sexual orienta-\ntion and fear of torture. In support of his motion to reopen,\nFuller submitted to the Board several new letters of support\nfrom acquaintances attesting to prior incidents in which he was\nthe victim of violence in Jamaica owing to his sexual orienta-\ntion. In denying this request, the Board explained that\n“[Fuller’s] motion does not challenge our conclusions regard-\ning his credibility or his eligibility for deferral of removal, and\nwe do not find that his letters of support would materially alter\nthese findings.” A.R. 3 (internal record citation omitted).\nBecause the Board’s stated rationale for disposing of Fuller’s\nmotion reflects a misapprehension of the basis for his request,\nand because we cannot be confident that the Board’s mistake\ndid not taint the exercise of its otherwise unreviewable\ndiscretion over the merits of the motion, we conclude that the\nBoard committed legal error in denying his request for relief.\nOn that basis, we grant Fuller’s petition for review and remand\nto the Board for further proceedings.\n\n\n1\n We recognize that when the Board acts in response to a litigant’s request,\nit is not acting sua sponte. See Shah v. Holder, 736 F.3d 1125, 1126 (7th Cir.\n2013). We shall nonetheless refer to the Board’s authority to reopen a\nproceeding sua sponte in order to distinguish that power from the Board’s\ndistinct authority to entertain a one-time motion to reopen filed within 90\ndays of final agency action. Compare 8 C.F.R. § 1003.2(c)(2) with id.\n§ 1003.2(a).\n\nNo. 17-3176 3\n\n I.\n Our summary of the facts may be somewhat abbreviated,\nas this is the fourth time that Fuller’s case has come before us.\nWe refer the reader to our two prior published decisions for\nadditional background. See Fuller v. Lynch, 833 F.3d 866 (7th\nCir. 2016) (“Fuller I”); Fuller v. Sessions, 879 F.3d 265 (7th Cir.\n2018) (“Fuller II”).\n Fuller entered the country legally on a fiancé visa in 1999\nand married an American citizen the following year. In 2004,\nhe pleaded guilty to attempted criminal sexual assault and an\nIllinois court ordered him to serve a term of 30 months’\nprobation. After he later violated the terms of his probation,\nFuller was re-sentenced to a prison term of four years.\n Following Fuller’s release from prison in 2014, the Depart-\nment of Homeland Security (“DHS”) initiated removal\nproceedings against him. The government charged, and the\nBoard would later agree, that Fuller was removable from the\nUnited States pursuant to 8 U.S.C. § 1227(a)(1)(D)(i) because he\nhad lost his conditional permanent resident status. (In 2004,\nFuller and his wife, whom he divorced the following year,\nfailed to appear for a mandatory interview with immigration\nofficials, triggering the revocation of his conditional residency\nstatus.)2 And because, as the Board would also agree, Fuller’s\nconviction for attempted criminal sexual assault constituted a\n\n\n2\n The government alleged that Fuller was removable on other grounds, but\nthe Board found it unnecessary to reach these other grounds. Fuller does\nnot contest that he is removable on the ground that he lost his status as a\nconditional permanent resident of the United States.\n\n4 No. 17-3176\n\n“particularly serious crime,” he was disqualified from seeking\nwithholding of removal under both the Immigration and\nNationality Act and the CAT. See 8 U.S.C. § 1231(b)(3)(B)(ii).\n Fuller instead sought deferral of his removal under the\nCAT, alleging that he was likely to be tortured as a bisexual\nwere he returned to Jamaica. See 8 C.F.R. §§ 208.16(c)(4),\n208.17(a).3 In a hearing before the Immigration Judge (“IJ”),\nFuller testified to a history of sexual relationships with both\nmen and women beginning in his preteen years and continuing\nthrough his (by then dissolved) marriage to a U.S. citizen.\nFuller also recounted a number of incidents in Jamaica in\nwhich he was physically and verbally attacked by those who\nperceived him to be gay; one of these incidents involved a\nshooting by a homophobic mob in the gay-friendly resort town\nof Ocho Rios. Fuller further indicated that his sisters had\ndisowned him for his sexual orientation. In addition to his\ntestimony, Fuller presented the IJ with seven letters from his\nchildren and friends, attesting to both his bisexuality and to the\nviolence he had experienced in Jamaica on account of his\nsexual orientation.\n The IJ found that Fuller’s testimony was not credible; and\nbecause she disbelieved his testimony and also questioned the\nveracity of the letters he had submitted, the IJ concluded that\n\n\n3\n For purposes of the CAT, torture is defined to include “any act by which\nsevere pain or suffering, whether physical or mental, is intentionally\ninflicted on a person … for any reason based on discrimination of any kind,\nwhen such pain or suffering is inflicted by or at the instigation of or with\nthe consent or acquiescence of a public official or other person acting in an\nofficial capacity.” 8 C.F.R. § 208.18(a)(1).\n\nNo. 17-3176 5\n\nFuller had not established that he is bisexual and as such faces\na likelihood of torture if he is forced to return to Jamaica. She\nconsequently denied his request for relief under the CAT. A.R.\n181–202. In finding that Fuller’s testimony was not credible, the\nIJ cited discrepancies both as to certain basic facts (including\nthe number and names of sisters, as well as confusing his sister\nwith his mother in his testimony) and as to the details of the\nprior instances of violence he allegedly had experienced in\nJamaica (including a ten-year discrepancy as to the timing of\nthe Ocho Rios shooting and which of his former boyfriends\nwas present at the incident, as recounted in his written state-\nment versus his subsequent testimony in court). As for the\nsupporting letters from Fuller’s friends, the IJ noted that none\nof the authors were available to testify although two of them\nwere former boyfriends who lived in the United States. The\nletters also diverged in certain respects from Fuller’s testi-\nmony: one letter suggested that Fuller had been shot on\nmultiple occasions in Jamaica, whereas Fuller had only\ndescribed one shooting. And all of the letters contained the\nsame centered, dotted signature line, which caused the IJ to\ndoubt their provenance. A.R. 192–96. The IJ summarized:\n [Fuller’s] credibility is seriously lacking in this case.\n He is unable to recall many of the most important\n details of the events that he claims … had an impact\n on his life, particularly with respect to his claim of\n being bisexual. He has failed to provide the Court\n with many documents that could have clarified\n many of these inconsistencies, such as medical\n records, police reports, corroborating letters of\n support or witnesses. The letters that he has pre-\n\n6 No. 17-3176\n\n sented to the Court are given very little weight\n because the Court is unable to verify their authentic-\n ity and has not had an opportunity to cross-examine\n or to even hear testimony from any of the makers of\n these statements. The respondent has given very\n little corroborative evidence to evaluate his claim\n that he is in fact bisexual and that he was in fact\n harmed in Jamaica on account of his sexual orienta-\n tion in the past.\nA.R. 195.\n In 2015, the Board affirmed the denial of CAT relief to\nFuller based on the IJ’s adverse credibility findings. A.R. 61–62.\n“[Fuller] has shown no clear error in the Immigration Judge’s\ndetailed findings of fact, to include the findings that the\nrespondent did not credibly testify and did not establish that\nhe has ever been bisexual. The respondent’s inconsistent\nstatements and implausible explanations fully support an\nadverse credibility determination.” A.R. 62 (internal record\ncitation omitted).\n Fuller then appealed to this court, but we denied his\npetition for review in a divided opinion. Fuller I, 833 F.3d 866.\nWe concluded in relevant part that the IJ’s adverse credibility\ndetermination, as affirmed by the Board, was supported by\nsubstantial evidence. Id. at 871–72. Although we acknowledged\nthat some of the IJ’s stated reasons for disbelieving Fuller were\noff the mark (including, for example, the citation of his mar-\nriage to a woman and multiple other prior heterosexual\nrelationships as a reason to think he was not bisexual), others\nwere sound. The latter included the discrepancies between his\n\nNo. 17-3176 7\n\nwritten statement and his oral testimony as to when the Ocho\nRios shooting had occurred, his confusion as to the number\nand names of his sisters (and mixing up his mother with his\nsister), and a material lie he had told government officials in\n2001 in seeking permission to visit Jamaica. We were satisfied\nthat the IJ’s adverse credibility finding was amply supported\nin these respects. Id. We added that if Fuller were able to gather\nnew evidence demonstrating that the IJ was mistaken as to his\nsexual orientation, he could ask the IJ to sua sponte reopen the\nproceeding. Id. at 872. The dissent, unpersuaded that these\ndiscrepancies cast doubt on Fuller’s claims that he was bisexual\nand had suffered violence as a result, contended that the\npetition for review should have been granted. Id. at 872–74.\n In January 2017, Fuller filed a motion asking the Board to\nreconsider and/or reopen the proceedings. A.R. 48–54. The\nprincipal contention that Fuller advanced in his motion was\nthat the IJ had erred in rejecting his representation that he is\nbisexual and as such faces likely persecution and torture upon\nhis return to Jamaica. Among other points, Fuller argued that\nhe had testified without contradiction that he is bisexual and\nhas been rejected by his family members because of his sexual\norientation; that given the hostility and violence bisexual\nindividuals experience in Jamaica, he would have no reason to\nfalsely characterize himself as bisexual; that for the same\nreasons, it was difficult for him to locate gay or bisexual\nJamaicans who would put themselves at risk by giving\ntestimony that would confirm his bisexuality; that the inconsis-\ntencies and mistakes in his testimony before the IJ were due to\nhis fear of being returned to Jamaica; and that the IJ’s rationale\nfor discrediting his testimony betrayed her own misunder-\n\n8 No. 17-3176\n\nstandings about bisexuality. A.R. 50–52, 54. Fuller added that\nhe had been able to obtain affidavits—actually, letters—from\nindividuals who supported his claim that had not been\navailable to him previously. A.R. 53.\n The Board denied Fuller’s motion in February 2017. A.R. 43.\nThe Board noted both that the motion was untimely and that,\nalthough Fuller referenced new affidavits that were unavail-\nable to him previously, “he has not submitted such evidence\nwith the motion, nor has he shown that a different outcome\nmay be warranted based on the new evidence.” A.R. 43.\n On receipt of the Board’s order denying his motion, Fuller\nfiled what he styled as a “Statement of Notice to Appeal\n(motion to reopen).” A.R. 22. In that statement, Fuller chal-\nlenged the Board’s declaration that he had not submitted the\nnew evidence referred to in his motion to reopen, observing,\n“The new evidence was the cornerstone of my motion so there\nis no way that it would not be sent in with the motion. I think\nthat this was a clerical mishap that caused this and I am now\nmaking sure the new pieces of evidence are included.” A.R. 22.\nFuller went on to summarize briefly his basis for asking the\nBoard to reopen his removal proceeding (and on what grounds\nhe was seeking deferral of removal), and concluded his\nstatement with the following: “I have new evidence to submit\nto the court to help to prove my case. I pray that I will be given\nthe chance to prove my credibility in court with the help of the\nnew evidence, and garner a positive outcome to my situation.”\nA.R. 22. He attached to the statement copies of the three letters\nreferred to in his prior motion to reconsider and/or reopen.\n\nNo. 17-3176 9\n\n The Board treated Fuller’s “statement” as a second motion\nto reopen, and denied that motion. A.R. 3–4. The Board noted\nin the first instance that the motion was barred in both number\nand untimeliness, and that Fuller had not identified any\napplicable exception to those limits. Nor, in the Board’s view,\nhad Fuller demonstrated that the circumstances of his case\nwere so exceptional as to warrant the exercise of the Board’s\nauthority to sua sponte reopen the proceedings. A.R. 3. The\nBoard explained:\n Even accepting [Fuller’s] argument that he previ-\n ously submitted his proffered letters of support, we\n find no basis on which to alter our October 27, 2015\n dismissal of his appeal or our previous denial of his\n motion to reopen. [Fuller’s] motion does not chal-\n lenge our conclusions regarding his credibility or his\n eligibility for deferral of removal, and we do not\n find that his letters of support would materially alter\n these findings. …\nA.R. 3 (internal record citations omitted).\n Fuller then filed the instant petition for review of the\nBoard’s order, along with a request that we stay his removal\npending resolution of the merits of his petition. After first\ndenying Fuller a stay, see Fuller II, 879 F.3d 265, we ultimately\nagreed to stay his removal and appointed counsel to represent\nhim. With the benefit of briefing and argument, we now\nproceed to the merits of Fuller’s petition for review.\n\n10 No. 17-3176\n\n II.\n We begin by addressing the limits of our jurisdiction. With\nexceptions not applicable here, a petitioner is limited to one\nmotion to reopen filed within 90 days of the Board’s final\nadministrative decision. See 8 U.S.C. § 1229a(c)(7)(A) & (C)(i);\n8 C.F.R. § 1003.2(c)(2). Fuller sought reopening long after the\n90-day time limit had expired and, consequently, his only\nrecourse was to ask the Board to exercise its authority to\nreopen the removal proceeding sua sponte, see 8 C.F.R.\n§ 1003.2(a) (“The Board may at any time reopen on its own\nmotion any case in which it has rendered a decision.”), a power\nthe Board has said it will reserve for “exceptional situations,”\nIn re J– J–, 21 I. & N. Dec. 976, 984 (B.I.A. 1997); see also In re\nG– D–, 22 I. & N. Dec. 1132, 1133–34 (B.I.A. 1999). Because the\ngoverning regulation permits but does not require the Board\nto exercise this power and there is no law defining what\nsituations will qualify as “exceptional,” there is no meaningful\nstandard by which to evaluate the exercise of the Board’s\ndiscretion, and consequently the merits of the Board’s decision\nto deny a motion to reopen sua sponte are unreviewable. Anaya-\nAguilar v. Holder, 683 F.3d 369, 372 (7th Cir. 2012) (“Anaya-\nAguilar I”) (collecting cases); see also Fuller II, 879 F.3d at 268.\nBut we do possess the authority to recognize and address\nconstitutional transgressions and other legal errors that the\nBoard may have committed in disposing of such a motion, see\n8 U.S.C. § 1252(a)(2)(D); Fuller II, 879 F.3d at 268; Zambrano-\nReyes v. Holder, 725 F.3d 744, 751 (7th Cir. 2013); Anaya-Aguilar\nv. Holder, 697 F.3d 1189, 1190 (7th Cir. 2012) (clarifying Anaya-\nAguilar I on denial of rehearing), including whether Board’s\nstated rationale for denying such a motion indicates that it\n\nNo. 17-3176 11\n\nignored evidence that the alien tendered in support of his\nrequest, Fuller II, 879 F.3d at 268 (citing Joseph v. Lynch, 793 F.3d\n739, 741–42 (7th Cir. 2015)). Contrary to the government’s\nargument, the REAL ID Act of 2005, which stripped us of the\nauthority to review various discretionary decisions of the\nBoard, did not alter our ability to address such legal errors. See\n§ 1252(a)(2)(D); Cevilla v. Gonzales, 446 F.3d 658, 660 (7th Cir.\n2006).4\n Fuller charges the Board with two legal errors in disposing\nof his motion to reopen. He contends first that the Board\nmisapprehended the thrust of his motion to reopen and the\nsignificance of the additional letters of support he submitted in\nsupport of the motion. The Board understood Fuller not to be\nchallenging its conclusions as to his credibility or his eligibility\nfor deferral of removal. But that understanding cannot be\nsquared with the substance of his motion, which was a direct\nchallenge to these conclusions, Fuller argues. Fuller also\ncontends that the Board’s summary rejection of his new\nevidence as “insufficient to materially alter” its adverse\nfindings was so perfunctory as to preclude confirmation that\nthe Board gave meaningful consideration to his evidence.\n\n\n4\n At oral argument, the government’s counsel suggested that because Fuller\nis seeking reopening in order to renew his request for relief under the CAT,\nand because a denial of relief under the CAT itself is reviewable by this\ncourt, see Teneng v. Holder, 602 F. App’x 340, 347 (7th Cir. 2015) (non-\nprecedential decision); Wani Site v. Holder, 656 F.3d 590, 593 (7th Cir. 2011),\nsection 1252(a)(2)(D) does not apply to the Board’s refusal to exercise its\nauthority to sua sponte reopen the proceedings. Because that contention was\nnot raised in the government’s brief, we deem it waived. E.g., Pope v. Perdue,\n889 F.3d 410, 417 n.4 (7th Cir. 2018).\n\n12 No. 17-3176\n\nBecause we agree with Fuller that the Board mischaracterized\nthe basis for his motion, and because we can have no confi-\ndence that its error did not taint the exercise of its discretion as\nto the merits of the motion, we will remand the matter to the\nBoard on that basis, without deciding whether the Board,\nabsent that error, was obligated to say more than it did in\ndenying Fuller’s request that it reopen the removal proceeding\nsua sponte.\n We should note at the outset that we regard Fuller’s\n“Statement of Notice to Appeal (motion to reopen),” which the\nBoard treated as a second motion to reopen sua sponte, simply\nas an effort to supplement the record with the three new letters\nof support that were somehow missing from Fuller’s prior\nmotion. The “Statement,” as we read it, did not purport to\nmake any new arguments in favor of reopening or even to\naddress the Board’s rationale in denying his prior motion,\nbeyond tendering the letters that the Board had said were\nmissing from Fuller’s prior submission. Certainly it was within\nthe Board’s authority to characterize Fuller’s “Statement” as a\nsecond motion to reopen; we do not mean to suggest other-\nwise. But, in determining whether the Board committed any\nlegal error, we shall evaluate the Board’s order disposing of\nthat second motion in light of the arguments Fuller advanced\nboth in his “Statement” and in his first motion to reopen, which\nwere of one piece.\n The Board said in its order that Fuller was not challenging\nits prior conclusions regarding his credibility or his eligibility\nfor deferral of removal; but that declaration cannot be recon-\nciled with either the letter or the spirit of Fuller’s request for\nrelief. Nowhere in either his motion to reopen or in his follow-\n\nNo. 17-3176 13\n\nup “Statement” did Fuller purport to forgo a challenge to the\nIJ’s finding (as sustained by the Board) that he was not credible\nas to his sexual orientation and history of persecution in\nJamaica and that, consequently, he could not claim eligibility\nfor deferral of removal under the CAT as a bisexual who was\nlikely to be tortured. Indeed, considering that the Board’s 2015\norder had deemed Fuller ineligible for deferral of removal on\nthe strength of the IJ’s finding that he was not credible as to his\npurported sexual orientation, it would be surprising if Fuller’s\nmotion did not challenge the Board’s conclusions as to his\ncredibility and, in turn, his eligibility for deferral of removal. It\nis true that Fuller made statements in his motion to reopen to\nthe effect that the IJ’s adverse credibility determination “cannot\nand does not preclude him from being a bisexual” and “does\nnot change the fact that [t]he Respondent is bisexual.” A.R. 51.\nBut such statements cannot reasonably be construed as\naccepting, even for the sake of argument, the IJ’s credibility\nfinding. The entire thrust of the motion to reopen was that\nFuller is, in fact, bisexual and has in fact, experienced violence\nin Jamaica as a result of his sexual orientation; that the IJ’s\nrationale in discrediting him on these points was suspect; and\nthat the new letters of support tendered in support of his\nrequest to reopen would eliminate any doubt as to the likeli-\nhood that he will be tortured if forced to return to Jamaica. If\nFuller did not say so expressly, it was nonetheless clear from\nthe substance of his arguments that he meant to challenge the\nadverse credibility determination and the resulting finding that\nhe had no basis on which to seek deferral of removal. See A.R.\n51 (“The pertinent facts should be that [Fuller] testified without\ncontradiction that he [is] bisexual, [and] he was rejected by his\n\n14 No. 17-3176\n\nfamily because of this.”); A.R. 54 (“The Immigration Judge’s\nassertion that [Fuller] was not in danger if removed to Jamaica\nis clearly a decision made with the lack of in-depth investiga-\ntion by the fact-finders in this case.”). And, indeed, Fuller\nultimately did say this expressly in his “Statement”: “I have\nnew evidence to submit to the court to help to prove my case.\nI pray that I will be given the chance to prove my credibility in\ncourt with the help of the new evidence … .” A.R. 22.\n So the Board’s understanding of Fuller’s motion to\nreopen—and of what challenges he was purportedly forgo-\ning—was erroneous. And to the extent that misunderstanding\nnecessarily affected how the Board exercised its discretion as\nto the merits of his motion, it amounts to a legal error that\nentitles him to relief. We have repeatedly said that the Board\ncommits a legal error within our jurisdiction to address when\nit ignores, misapplies, or fails to meaningfully consider the\nevidence an alien has submitted in support of his motion to\nreopen sua sponte. See Arej v. Sessions, 852 F.3d 665, 667 (7th Cir.\n2017); Ni v. Holder, 715 F.3d 620, 630 (7th Cir. 2013); Moosa v.\nHolder, 644 F.3d 380, 386 (7th Cir. 2011). Contrary to the\ngovernment’s suggestion, our ability to recognize such an error\nis not dependent on the particular reasons why an alien is\nasking the Board to exercise its sua sponte authority, be it a\nsubsequent change in the law, see In re G– D–, supra, 22 I. & N.\nDec. at 1135, or (as here) the availability of new evidence\nsupporting the alien’s claim for relief. When the Board\nmischaracterizes the evidence tendered or misapprehends the\npurpose for which it is offered, it has not complied with its\nduty to recognize and consider the basis on which the alien has\n\nNo. 17-3176 15\n\nasked the Board to exercise its regulatory authority to reopen\nthe proceedings sua sponte. See Arej, 852 F.3d at 667.\n We acknowledge that the Board, after stating that Fuller\nwas not challenging its findings as to his credibility and\neligibility for deferral of removal, added that “we do not find\nthat his letters of support would materially alter these find-\nings,”(A.R. 3); but that addition does not convince us that we\nshould deny Fuller’s petition for review. Having misappre-\nhended or mischaracterized what findings Fuller was or was\nnot challenging in his motion to reopen, we cannot be confi-\ndent that the Board’s additional half-sentence as to the import\nof Fuller’s new evidence represents an independent and well-\nconsidered alternative ground for the Board’s judgment. We\nmight have more assurance in that regard had the Board said\nsomething more about the letters of support and why the\nBoard did not think they would materially alter its assessment\nof whether he is entitled to deferral of removal. But the Board’s\nfailure to elaborate on this point leaves us with no assurance\nthat the Board’s exercise of discretion was unaffected by its\nerror in appreciating the purpose of Fuller’s new evidence. To\nbe clear, our point is not that the Board must say enough to\nconvince us that the Board exercised its discretion “correctly”\non Fuller’s motion to reopen; the merits of its ruling are of\ncourse beyond the limited scope of our review. But in the\nimmediate wake of a grave mischaracterization of the basis for\nFuller’s motion, the Board’s additional boilerplate observation\nthat Fuller’s new letters would not materially alter its prior\nadverse findings cannot eradicate doubt as to whether the\nBoard actually considered Fuller’s evidence and understood\nwhat he was arguing based on that evidence. Wholly apart\n\n16 No. 17-3176\n\nfrom the question of how much the Board was obligated in the\nfirst instance to say in disposing of Fuller’s motion, the glaring\nerror in what it did say suggests it may never have given\nmeaningful consideration to Fuller’s evidence. The Board’s\norder as written leaves us in the same position we would be if\nits stated rationale indicated that it had altogether ignored the\nevidence and arguments Fuller put before it. See Joseph, 793\nF.3d at 741–42; Kiorkis v. Holder, 634 F.3d 924, 928 (7th Cir.\n2011); Iglesias v. Mukasey, 540 F.3d 528, 531 (7th Cir. 2008).\n The merits of Fuller’s case for the sua sponte reopening of\nhis removal proceeding are for the Board and the Board alone\nto judge. Nothing in our opinion should be construed as a\nsignal that we believe Fuller is entitled to reopening; our views\non that question are, in any event, irrelevant. Suffice it to say\nthat the Board in this case plainly misapprehended the basis for\nFuller’s motion and then dispensed with the merits of the\nmotion in a perfunctory half-sentence, giving us no assurance\nthat it genuinely exercised its discretion as to what Fuller was\nactually arguing. The Board’s legal error compels us to return\nthe matter to the Board for reconsideration.\n III.\n We GRANT the petition for review and REMAND the case\nto the Board for further proceedings consistent with this\nopinion.\n\n17 No. 17‐3176\n[END_CASE]", "role": "user" } ]
4,583,974	Maurice LEWIS, Plaintiff-Appellant, v. CITY OF CHICAGO, Et Al., Defendants-Appellees.	Maurice Lewis v. City of Chicago	2019-01-23	17-1510	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Ripple, Sykes, Barrett", "parties": "", "opinions": [{"author": "Diane S. Sykes", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-1510\nMAURICE LEWIS,\n Plaintiff-Appellant,\n\n v.\n\nCITY OF CHICAGO, et al.,\n Defendants-Appellees.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 16-CV-7592 — Amy J. St. Eve, Judge.\n ____________________\n\n ARGUED FEBRUARY 6, 2018 — DECIDED JANUARY 23, 2019\n ____________________\n\n\n Before RIPPLE, SYKES, and BARRETT, Circuit Judges.\n SYKES, Circuit Judge. Maurice Lewis spent more than two\nyears in pretrial detention in the Cook County Jail based on\npolice reports falsely implicating him for unlawfully pos-\nsessing a firearm. After the charges against him were\ndropped, Lewis sued the City of Chicago and six police\nofficers under 42 U.S.C. § 1983 seeking damages for violation\n\f2 No. 17-1510\n\nof his rights under the Fourth Amendment and the Due\nProcess Clause of the Fourteenth Amendment.\n The district court dismissed the suit, ruling that both\nclaims were time-barred. Lewis appealed. Twelve days later\nthe Supreme Court decided Manuel v. City of Joliet\n(“Manuel I”), 137 S. Ct. 911, 920 (2017), clarifying that deten-\ntion without probable cause violates the Fourth Amendment\n“when it precedes, but also when it follows, the start of legal\nprocess in a criminal case.” Id. at 918. The Court declined to\ndecide when such claims accrue, instead remanding the case\nto this court to resolve that issue. Id. at 922. In September the\nManuel panel held that a Fourth Amendment claim for\nwrongful pretrial detention accrues on the date the detention\nends. Manuel v. City of Joliet (“Manuel II”), 903 F.3d 667, 670\n(7th Cir. 2018).\n The combined effect of Manuel I and II saves part of\nLewis’s case. Consistent with Manuel I, Lewis pleaded a\nviable Fourth Amendment claim for unlawful pretrial\ndetention. And Manuel II confirms that the claim is timely\nbecause Lewis filed it within two years of his release from\ndetention.\n The due-process claim is another matter. Manuel I makes\nclear that the Fourth Amendment, not the Due Process\nClause, governs a claim for wrongful pretrial detention. To\nthe extent Hurt v. Wise, 880 F.3d 831, 843–44 (7th Cir. 2018),\nholds otherwise, it is incompatible with Manuel I and II and\nis overruled. 1 We therefore reverse the dismissal of the\n\n\n\n1 Because this opinion resolves a conflict in our circuit caselaw, it was\ncirculated to all judges in active service. See 7TH CIR. R. 40(e). None\n\fNo. 17-1510 3\n\nFourth Amendment claim and affirm the dismissal of the\ndue-process claim, though on different grounds.\n I. Background\n On September 12, 2013, Chicago police officers searched\nan apartment on West Walton Street where they encoun-\ntered Lewis and two others. During the search, the officers\ndiscovered a handgun. Lewis alleges that the officers had no\nbasis to believe the gun was his. He claims that he didn’t live\nat the apartment and never told the officers otherwise. He\nfurther alleges that the officers never found anything in the\napartment indicating that he lived there.\n The officers arrested Lewis for illegally possessing the\nfirearm. Lewis claims that the officers prepared police\nreports falsely stating that he “had admitted to residing in\nthe Walton Street Apartment” and that the officers “had\nfound and seized evidence establishing that [Lewis] resided\nin the Walton Street Apartment.”\n The day after Lewis’s arrest, a state-court judge held a\nprobable-cause hearing and found cause to believe that\nLewis illegally possessed the weapon, 720 ILL. COMP. STAT.\n5/24-1.1(a), and violated Illinois’s armed habitual criminal\nstatute, id. § 5/24-1.7(a). The judge ordered Lewis held for\ntrial. Two weeks later a prosecutor amended the charges,\nand a different judge held a probable-cause hearing on the\nnew charges. Officer Abraham Mora testified that the search\nof the apartment uncovered a handgun and two documents\naddressed to Lewis at the Walton Street address. The judge\n\n\nfavored a hearing en banc. Circuit Judge Amy J. St. Eve did not partici-\npate.\n\f4 No. 17-1510\n\nfound probable cause to detain Lewis for trial. He sat in the\nCook County Jail for two years until the charges were\ndropped on September 29, 2015.\n On July 26, 2016, Lewis sued the City and six officers un-\nder § 1983 alleging that he was held in jail pending trial\nbased on falsified evidence, violating his rights under the\nFourth Amendment and the Fourteenth Amendment’s Due\nProcess Clause. He also raised a claim under Illinois law for\nmalicious prosecution.\n The defendants moved to dismiss the complaint under\nRule 12(b)(6) of the Federal Rules of Civil Procedure. The\njudge granted the motion, dismissing the constitutional\nclaims with prejudice after finding them time-barred under\nthe two-year statute of limitations applicable to § 1983 claims\nin Illinois. The judge then relinquished supplemental juris-\ndiction over the state-law claim, dismissing it without\nprejudice.\n II. Discussion\n We review a Rule 12(b)(6) dismissal de novo. Jakupovic v.\nCurran, 850 F.3d 898, 901 (7th Cir. 2017). To survive a motion\nto dismiss, a complaint must contain “factual content that\nallows the court to draw the reasonable inference that the\ndefendant is liable for the misconduct alleged.” Ashcroft v.\nIqbal, 556 U.S. 662, 678 (2009).\nA. Fourth Amendment Claim\n Lewis maintains that he pleaded a viable Fourth\nAmendment claim for unlawful pretrial detention based on\nfalsified evidence. He also argues that the claim is timely.\nUnder Manuel I and II, he is correct on both points.\n\fNo. 17-1510 5\n\n The Fourth Amendment protects “[t]he right of the peo-\nple to be secure in their persons … against unreasonable …\nseizures.” U.S. CONST. amend. IV. A person is “seized”\nwhenever an official “restrains his freedom of movement”\nsuch that he is “not free to leave.” Brendlin v. California,\n551 U.S. 249, 254–55 (2007). “[T]he general rule [is] that\nFourth Amendment seizures are ‘reasonable’ only if based\non probable cause to believe that the individual has commit-\nted a crime.” Bailey v. United States, 568 U.S. 186, 192 (2013)\n(internal quotation marks omitted).\n Lewis alleges that he was detained—that is to say,\n“seized”—in the Cook County Jail for two years based on\nfalsified police reports and that this injury is actionable\nunder § 1983 as a violation of his Fourth Amendment right\nto be free from unreasonable seizure. Our circuit caselaw\nonce foreclosed this theory. See, e.g., Newsome v. McCabe,\n256 F.3d 747, 750 (7th Cir. 2001). Prior to Manuel I, our cases\nheld that “once detention by reason of arrest turns into\ndetention by way of arraignment—once police action gives\nway to legal process—the Fourth Amendment falls out of\nthe picture and the detainee’s claim that the detention is\nimproper becomes a claim of malicious prosecution violative\nof due process.” Llovet v. City of Chicago, 761 F.3d 759, 763\n(7th Cir. 2014).\n The Supreme Court superseded this circuit precedent in\nManuel I. Elijah Manuel was arrested for possession of\nunlawful drugs. After a probable-cause hearing based on\nevidence allegedly fabricated by the police, a local judge\nfound probable cause and sent Manuel to the county jail to\nawait trial. There he sat for 48 days until the prosecutor\ndismissed the charge. Manuel I, 137 S. Ct. at 915–16. He\n\f6 No. 17-1510\n\nsought damages under § 1983 alleging that his pretrial\ndetention violated the Fourth Amendment. The district court\ndismissed the claim based on binding circuit precedent and\nwe affirmed. Id. at 916. The Supreme Court reversed, hold-\ning that Manuel stated a Fourth Amendment claim when he\nsought relief “not merely for his (pre-legal-process) arrest,\nbut also for his (post-legal process) pretrial detention.” Id. at\n919.\n The Court jettisoned the malicious-prosecution analogy\nand the due-process source of the right, instead grounding\nthe claim in long-established Fourth Amendment doctrine:\n The Fourth Amendment prohibits government\n officials from detaining a person in the absence\n of probable cause. That can happen when the\n police hold someone without any reason before\n the formal onset of a criminal proceeding. But\n it can also occur when legal process itself goes\n wrong—when, for example, a judge’s\n probable-cause determination is predicated\n solely on a police officer’s false statements.\n Then, too, a person is confined without consti-\n tutionally adequate justification. Legal process\n has gone forward, but it has done nothing to\n satisfy the Fourth Amendment’s probable-\n cause requirement. And for that reason, it can-\n not extinguish the detainee’s Fourth Amend-\n ment claim—or somehow, as the Seventh\n Circuit has held, convert that claim into one\n founded on the Due Process Clause.\nId. at 918–19 (citations omitted).\n\fNo. 17-1510 7\n\n Manuel I thus clarified that the constitutional injury aris-\ning from a wrongful pretrial detention rests on the funda-\nmental Fourth Amendment principle that a pretrial\ndetention is a “seizure”—both before formal legal process\nand after—and is justified only on probable cause. Id. at 918.\nManuel alleged that his detention was not supported by\nprobable cause because the judge’s order holding him for\ntrial was based only on “police fabrications.” Id. at 919. If\nthat proved to be true, his detention was unreasonable in\nviolation of the Fourth Amendment. Id.\n Put another way, the initiation of formal legal process\n“did not expunge Manuel’s Fourth Amendment claim\nbecause the process he received failed to establish what that\nAmendment makes essential for pretrial detention—\nprobable cause to believe he committed a crime.” Id. at 919–\n20. As we explained in our decision on remand in Manuel II,\na Fourth Amendment claim for wrongful pretrial detention\nis concerned with “the detention rather than the existence of\ncriminal charges.” 903 F.3d at 670.\n Lewis’s allegations are materially indistinguishable from\nManuel’s. He has therefore pleaded a plausible Fourth\nAmendment claim. The officers respond with an assertion of\nqualified immunity. “Qualified immunity attaches when an\nofficial’s conduct does not violate clearly established statuto-\nry or constitutional rights of which a reasonable person\nwould have known.” Kisela v. Hughes, 138 S. Ct. 1148, 1151\n(2018) (per curiam) (quoting White v. Pauly, 137 S. Ct. 548,\n551 (2017) (per curiam)). Qualified immunity requires a two-\npart inquiry: we must determine (1) whether facts alleged or\nshown by a plaintiff make out a violation of a constitutional\nright, and (2) if so, whether that right was clearly established\n\f8 No. 17-1510\n\nat the time of the defendant’s alleged misconduct. Pearson v.\nCallahan, 555 U.S. 223, 232 (2009).\n It has been clear since at least Franks v. Delaware, 438 U.S.\n154 (1978), that falsifying the factual basis for a judicial\nprobable-cause determination violates the Fourth Amend-\nment. A judicial determination of probable cause is normally\nentitled to a presumption of validity, but\n this presumption is premised on an “assump-\n tion … that there will be a truthful showing” of\n probable cause. [Franks, 438 U.S.] at 164–65, 98\n S. Ct. 2674 (emphasis in original). Accordingly,\n the presumption may give way on a showing\n that the officer who sought the warrant “know-\n ingly or intentionally or with a reckless disre-\n gard for the truth, made false statements to the\n judicial officer, and that the false statements\n were necessary to the judicial officer’s deter-\n mination that probable cause existed for the ar-\n rest.” Beauchamp v. City of Noblesville, Ind.,\n 320 F.3d 733, 742–43 (7th Cir. 2003) (citing\n Franks, 438 U.S. at 155–56, 98 S. Ct. 2674).\nWhitlock v. Brown, 596 F.3d 406, 410 (7th Cir. 2010) (omission\nin original) (alterations omitted).\n Lewis alleges that the officers falsely asserted, both in\ntheir police reports and in testimony at the probable-cause\nhearing, that he admitted residing at the apartment where\nthe gun was found and that they found evidence showing\nthat he lived there. Accepting these allegations as true, as we\nmust at this stage, no reasonable officer could have thought\nthis conduct was constitutionally permissible. It makes no\n\fNo. 17-1510 9\n\ndifference that our circuit caselaw situated the constitutional\nviolation in the Due Process Clause rather than the Fourth\nAmendment.\n The question remains whether the claim is timely. A\n§ 1983 claim borrows the statute of limitations for analogous\npersonal-injury claims in the forum state; in Illinois that\nperiod is two years. 735 ILL. COMP. STAT. 5/13-202; Wallace v.\nKato, 549 U.S. 384, 388–89 (2007). But federal law determines\nwhen the claim accrues. Wallace, 549 U.S. at 388–89.\n Manuel II addressed the accrual question the Supreme\nCourt remanded in Manuel I, holding that a Fourth Amend-\nment claim for wrongful pretrial detention accrues when the\ndetention ceases. 903 F.3d at 669. Two considerations sup-\nported this conclusion. First, because the constitutional\nviolation is “ongoing” rather than “discrete,” the claim\naccrues when the ongoing violation ends. Id. Second, “a\nclaim cannot accrue until the would-be plaintiff is entitled to\nsue, yet the existence of detention forbids a suit for damages\ncontesting that detention’s validity.” Id. at 670 (citing Preiser\nv. Rodriguez, 411 U.S. 475 (1973), and Heck v. Humphrey,\n512 U.S. 477 (1994)).\n Under Manuel II, Lewis’s Fourth Amendment claim is\ntimely. Lewis remained in jail until the charges against him\nwere dropped on September 29, 2015. He filed this § 1983\nsuit less than a year later on July 26, 2016, well within the\ntwo-year statute of limitations. 2 He is entitled to move\nforward on his Fourth Amendment claim.\n\n2 We note that the Supreme Court has granted certiorari to resolve a\ncircuit split on the claim-accrual question reserved in Manuel I. See\nMcDonough v. Smith, No. 18-485, 2019 WL 166879 (Mem.) (Jan. 11, 2019).\n\f10 No. 17-1510\n\nB. Due-Process Claim\n Lewis argues that this same misconduct by law enforce-\nment—falsifying the police reports that led to his pretrial\ndetention—also violated his right to due process, giving rise\nto an additional constitutional claim under § 1983. Manuel I\nholds otherwise, as does our decision on remand in\nManuel II.\n To reiterate, Manuel I explained that “[i]f the complaint is\nthat a form of legal process resulted in pretrial detention\nunsupported by probable cause, then the right allegedly\ninfringed lies in the Fourth Amendment.” 137 S. Ct. at 919.\nAs we’ve noted above, Manuel I clarified that the initiation of\nformal legal process “cannot extinguish the detainee’s\nFourth Amendment claim—or somehow, as the Seventh Circuit\nhas held, convert that claim into one founded on the Due Process\nClause.” Id. at 918–19 (emphasis added). It’s now clear that a\n§ 1983 claim for unlawful pretrial detention rests exclusively\non the Fourth Amendment.\n Lewis relies on Hurt v. Wise as support for his position\nthat pretrial detention based on fabricated evidence violates\nrights secured by two constitutional provisions—the Fourth\nAmendment and the Due Process Clause of the Fourteenth—\nand is actionable under § 1983 as two separate constitutional\nclaims. Hurt conflicts with Manuel I and II, so we take this\nopportunity to clear up the conflict.\n In Hurt the police arrested three siblings for their sus-\npected roles in the death of their uncle. “But one by one,\neach was absolved”: one sibling was never criminally\ncharged, the next saw the charges against her dropped after\nfour months in jail, and the third was acquitted at trial after\n\fNo. 17-1510 11\n\neight months in jail. Hurt, 880 F.3d at 835. The three siblings\nsued the officers accusing them of fabricating evidence—\nincluding confessions—and seeking relief under § 1983 and\nIllinois law. Id. The officers moved for summary judgment\nbased on qualified immunity. The district court denied the\nmotion, id. at 839, and we mostly affirmed.\n As relevant here, Hurt first rejected the officers’ qualified-\nimmunity defense on the Fourth Amendment claim, con-\ncluding that in light of the evidence in the summary-\njudgment record, a reasonable trier of fact could find that the\nplaintiffs “were arrested without even arguable probable\ncause[] and thus in violation of the Fourth Amendment.” Id.\nat 843 (citing Manuel I, 137 S. Ct. at 918–19).\n Two of the Hurt plaintiffs—the two that were held in jail\npending trial—argued that the same police misconduct\nsupported an additional claim for violation of their right to\ndue process, relying on the malicious-prosecution/due-\nprocess theory embedded in our circuit caselaw. See, e.g.,\nJulian v. Hanna, 732 F.3d 842 (7th Cir. 2013); Newsome,\n256 F.3d 747. Hurt determined that Manuel I had not dis-\nturbed the general rule of the Newsome line of cases: while\nthere is “no free-standing constitutional tort of malicious\nprosecution,” other constitutional rights protect people\nagainst “abusive arrests [and] fabrication of evidence.”\n880 F.3d at 843. What mattered was that the plaintiffs had\n“identified the constitutional right at issue”—the Due\nProcess Clause, which “forbids the [S]tate from depriving a\nperson of liberty (including by pre-trial detention) based on\nmanufactured evidence.” Id.\n But in Manuel II—decided nine months after Hurt—we\nexplained that all § 1983 claims for wrongful pretrial deten-\n\f12 No. 17-1510\n\ntion—whether based on fabricated evidence or some other\ndefect—sound in the Fourth Amendment. Like the plaintiffs\nin Hurt, Manuel relied on the tort of malicious prosecution\nas an analogy. 903 F.3d at 669. We explained that while this\n“might have seemed sensible before the Supreme Court\nspoke,” after Manuel I it is the “wrong characterization”;\nindeed, “the Justices deprecated the analogy to malicious\nprosecution.” Id. at 669–70 (citing Manuel I, 137 S. Ct. at 917–\n20). Instead, the constitutional right in question is the “right\nnot to be held in custody without probable cause,” the\nviolation of which gives rise to a “plain-vanilla Fourth\nAmendment” claim under § 1983 because the essential\nconstitutional wrong is the “absence of probable cause that\nwould justify the detention.” Id. at 670 (citing Manuel I,\n137 S. Ct. at 917–20). In other words, the Fourth Amend-\nment, not the Due Process Clause, is the source of the right\nin a § 1983 claim for unlawful pretrial detention, whether\nbefore or after the initiation of formal legal process.\n We overrule precedent only in limited circumstances; a\nclear intracircuit conflict is one of them. Glaser v. Wound Care\nConsultants, Inc., 570 F.3d 907, 915–16 (7th Cir. 2009).\nManuel II and Hurt cannot be reconciled. Indeed, Hurt is\nhard to square with Manuel I. The Supreme Court held that\nthe initiation of formal legal process following an arrest does\nnot convert a Fourth Amendment unreasonable-seizure\nclaim “into one founded on the Due Process Clause.”\n137 S. Ct. at 919. The injury of wrongful pretrial detention\nmay be remedied under § 1983 as a violation of the Fourth\nAmendment, not the Due Process Clause. To the extent Hurt\nholds otherwise, it is overruled.\n\fNo. 17-1510 13\n\n We close by noting the important point that a claim for\nwrongful pretrial detention based on fabricated evidence is\ndistinct from a claim for wrongful conviction based on fabri-\ncated evidence: “[C]onvictions premised on deliberately\nfabricated evidence will always violate the defendant’s right\nto due process.” Avery v. City of Milwaukee, 847 F.3d 433, 439\n(7th Cir. 2017) (emphasis added); see also Mooney v. Holohan,\n294 U.S. 103, 112 (1935) (explaining that the use of perjured\ntestimony “to procure the conviction and imprisonment of a\ndefendant is as inconsistent with the rudimentary demands\nof justice as is the obtaining of a like result by intimidation”);\nWhitlock v. Brueggemann, 682 F.3d 567, 580 (7th Cir. 2012).\nMoreover, misconduct of this type that results in a convic-\ntion might also violate the accused’s right to due process\nunder the rubric of Brady v. Maryland, 373 U.S. 83 (1963), and\nKyles v. Whitley, 514 U.S. 419 (1995), if government officials\nsuppressed evidence of the fabrication. Avery, 847 F.3d at\n443–44. We reiterate that we deal here only with a claim of\nwrongful pretrial detention, not a claim of wrongful convic-\ntion.\n * * *\n Applying Manuel I and II, we hold that Lewis timely filed\na viable Fourth Amendment claim for wrongful pretrial\ndetention. We therefore reverse the dismissal of that claim\nand remand for further proceedings. Under Manuel I and II,\nthe Due Process Clause does not apply, so the judgment is\notherwise affirmed.\n AFFIRMED in part and REVERSED AND REMANDED in part.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4361227/", "author_raw": "Diane S. Sykes"}]}	RIPPLE	SYKES	BARRETT	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4583974/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Maurice LEWIS, Plaintiff-Appellant, v. CITY OF CHICAGO, Et Al., Defendants-Appellees.\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-23\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-1510\nMAURICE LEWIS,\n Plaintiff-Appellant,\n\n v.\n\nCITY OF CHICAGO, et al.,\n Defendants-Appellees.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 16-CV-7592 — Amy J. St. Eve, Judge.\n ____________________\n\n ARGUED FEBRUARY 6, 2018 — DECIDED JANUARY 23, 2019\n ____________________\n\n\n Before RIPPLE, SYKES, and BARRETT, Circuit Judges.\n SYKES, Circuit Judge. Maurice Lewis spent more than two\nyears in pretrial detention in the Cook County Jail based on\npolice reports falsely implicating him for unlawfully pos-\nsessing a firearm. After the charges against him were\ndropped, Lewis sued the City of Chicago and six police\nofficers under 42 U.S.C. § 1983 seeking damages for violation\n\f2 No. 17-1510\n\nof his rights under the Fourth Amendment and the Due\nProcess Clause of the Fourteenth Amendment.\n The district court dismissed the suit, ruling that both\nclaims were time-barred. Lewis appealed. Twelve days later\nthe Supreme Court decided Manuel v. City of Joliet\n(“Manuel I”), 137 S. Ct. 911, 920 (2017), clarifying that deten-\ntion without probable cause violates the Fourth Amendment\n“when it precedes, but also when it follows, the start of legal\nprocess in a criminal case.” Id. at 918. The Court declined to\ndecide when such claims accrue, instead remanding the case\nto this court to resolve that issue. Id. at 922. In September the\nManuel panel held that a Fourth Amendment claim for\nwrongful pretrial detention accrues on the date the detention\nends. Manuel v. City of Joliet (“Manuel II”), 903 F.3d 667, 670\n(7th Cir. 2018).\n The combined effect of Manuel I and II saves part of\nLewis’s case. Consistent with Manuel I, Lewis pleaded a\nviable Fourth Amendment claim for unlawful pretrial\ndetention. And Manuel II confirms that the claim is timely\nbecause Lewis filed it within two years of his release from\ndetention.\n The due-process claim is another matter. Manuel I makes\nclear that the Fourth Amendment, not the Due Process\nClause, governs a claim for wrongful pretrial detention. To\nthe extent Hurt v. Wise, 880 F.3d 831, 843–44 (7th Cir. 2018),\nholds otherwise, it is incompatible with Manuel I and II and\nis overruled. 1 We therefore reverse the dismissal of the\n\n\n\n1 Because this opinion resolves a conflict in our circuit caselaw, it was\ncirculated to all judges in active service. See 7TH CIR. R. 40(e). None\n\fNo. 17-1510 3\n\nFourth Amendment claim and affirm the dismissal of the\ndue-process claim, though on different grounds.\n I. Background\n On September 12, 2013, Chicago police officers searched\nan apartment on West Walton Street where they encoun-\ntered Lewis and two others. During the search, the officers\ndiscovered a handgun. Lewis alleges that the officers had no\nbasis to believe the gun was his. He claims that he didn’t live\nat the apartment and never told the officers otherwise. He\nfurther alleges that the officers never found anything in the\napartment indicating that he lived there.\n The officers arrested Lewis for illegally possessing the\nfirearm. Lewis claims that the officers prepared police\nreports falsely stating that he “had admitted to residing in\nthe Walton Street Apartment” and that the officers “had\nfound and seized evidence establishing that [Lewis] resided\nin the Walton Street Apartment.”\n The day after Lewis’s arrest, a state-court judge held a\nprobable-cause hearing and found cause to believe that\nLewis illegally possessed the weapon, 720 ILL. COMP. STAT.\n5/24-1.1(a), and violated Illinois’s armed habitual criminal\nstatute, id. § 5/24-1.7(a). The judge ordered Lewis held for\ntrial. Two weeks later a prosecutor amended the charges,\nand a different judge held a probable-cause hearing on the\nnew charges. Officer Abraham Mora testified that the search\nof the apartment uncovered a handgun and two documents\naddressed to Lewis at the Walton Street address. The judge\n\n\nfavored a hearing en banc. Circuit Judge Amy J. St. Eve did not partici-\npate.\n\f4 No. 17-1510\n\nfound probable cause to detain Lewis for trial. He sat in the\nCook County Jail for two years until the charges were\ndropped on September 29, 2015.\n On July 26, 2016, Lewis sued the City and six officers un-\nder § 1983 alleging that he was held in jail pending trial\nbased on falsified evidence, violating his rights under the\nFourth Amendment and the Fourteenth Amendment’s Due\nProcess Clause. He also raised a claim under Illinois law for\nmalicious prosecution.\n The defendants moved to dismiss the complaint under\nRule 12(b)(6) of the Federal Rules of Civil Procedure. The\njudge granted the motion, dismissing the constitutional\nclaims with prejudice after finding them time-barred under\nthe two-year statute of limitations applicable to § 1983 claims\nin Illinois. The judge then relinquished supplemental juris-\ndiction over the state-law claim, dismissing it without\nprejudice.\n II. Discussion\n We review a Rule 12(b)(6) dismissal de novo. Jakupovic v.\nCurran, 850 F.3d 898, 901 (7th Cir. 2017). To survive a motion\nto dismiss, a complaint must contain “factual content that\nallows the court to draw the reasonable inference that the\ndefendant is liable for the misconduct alleged.” Ashcroft v.\nIqbal, 556 U.S. 662, 678 (2009).\nA. Fourth Amendment Claim\n Lewis maintains that he pleaded a viable Fourth\nAmendment claim for unlawful pretrial detention based on\nfalsified evidence. He also argues that the claim is timely.\nUnder Manuel I and II, he is correct on both points.\n\fNo. 17-1510 5\n\n The Fourth Amendment protects “[t]he right of the peo-\nple to be secure in their persons … against unreasonable …\nseizures.” U.S. CONST. amend. IV. A person is “seized”\nwhenever an official “restrains his freedom of movement”\nsuch that he is “not free to leave.” Brendlin v. California,\n551 U.S. 249, 254–55 (2007). “[T]he general rule [is] that\nFourth Amendment seizures are ‘reasonable’ only if based\non probable cause to believe that the individual has commit-\nted a crime.” Bailey v. United States, 568 U.S. 186, 192 (2013)\n(internal quotation marks omitted).\n Lewis alleges that he was detained—that is to say,\n“seized”—in the Cook County Jail for two years based on\nfalsified police reports and that this injury is actionable\nunder § 1983 as a violation of his Fourth Amendment right\nto be free from unreasonable seizure. Our circuit caselaw\nonce foreclosed this theory. See, e.g., Newsome v. McCabe,\n256 F.3d 747, 750 (7th Cir. 2001). Prior to Manuel I, our cases\nheld that “once detention by reason of arrest turns into\ndetention by way of arraignment—once police action gives\nway to legal process—the Fourth Amendment falls out of\nthe picture and the detainee’s claim that the detention is\nimproper becomes a claim of malicious prosecution violative\nof due process.” Llovet v. City of Chicago, 761 F.3d 759, 763\n(7th Cir. 2014).\n The Supreme Court superseded this circuit precedent in\nManuel I. Elijah Manuel was arrested for possession of\nunlawful drugs. After a probable-cause hearing based on\nevidence allegedly fabricated by the police, a local judge\nfound probable cause and sent Manuel to the county jail to\nawait trial. There he sat for 48 days until the prosecutor\ndismissed the charge. Manuel I, 137 S. Ct. at 915–16. He\n\f6 No. 17-1510\n\nsought damages under § 1983 alleging that his pretrial\ndetention violated the Fourth Amendment. The district court\ndismissed the claim based on binding circuit precedent and\nwe affirmed. Id. at 916. The Supreme Court reversed, hold-\ning that Manuel stated a Fourth Amendment claim when he\nsought relief “not merely for his (pre-legal-process) arrest,\nbut also for his (post-legal process) pretrial detention.” Id. at\n919.\n The Court jettisoned the malicious-prosecution analogy\nand the due-process source of the right, instead grounding\nthe claim in long-established Fourth Amendment doctrine:\n The Fourth Amendment prohibits government\n officials from detaining a person in the absence\n of probable cause. That can happen when the\n police hold someone without any reason before\n the formal onset of a criminal proceeding. But\n it can also occur when legal process itself goes\n wrong—when, for example, a judge’s\n probable-cause determination is predicated\n solely on a police officer’s false statements.\n Then, too, a person is confined without consti-\n tutionally adequate justification. Legal process\n has gone forward, but it has done nothing to\n satisfy the Fourth Amendment’s probable-\n cause requirement. And for that reason, it can-\n not extinguish the detainee’s Fourth Amend-\n ment claim—or somehow, as the Seventh\n Circuit has held, convert that claim into one\n founded on the Due Process Clause.\nId. at 918–19 (citations omitted).\n\fNo. 17-1510 7\n\n Manuel I thus clarified that the constitutional injury aris-\ning from a wrongful pretrial detention rests on the funda-\nmental Fourth Amendment principle that a pretrial\ndetention is a “seizure”—both before formal legal process\nand after—and is justified only on probable cause. Id. at 918.\nManuel alleged that his detention was not supported by\nprobable cause because the judge’s order holding him for\ntrial was based only on “police fabrications.” Id. at 919. If\nthat proved to be true, his detention was unreasonable in\nviolation of the Fourth Amendment. Id.\n Put another way, the initiation of formal legal process\n“did not expunge Manuel’s Fourth Amendment claim\nbecause the process he received failed to establish what that\nAmendment makes essential for pretrial detention—\nprobable cause to believe he committed a crime.” Id. at 919–\n20. As we explained in our decision on remand in Manuel II,\na Fourth Amendment claim for wrongful pretrial detention\nis concerned with “the detention rather than the existence of\ncriminal charges.” 903 F.3d at 670.\n Lewis’s allegations are materially indistinguishable from\nManuel’s. He has therefore pleaded a plausible Fourth\nAmendment claim. The officers respond with an assertion of\nqualified immunity. “Qualified immunity attaches when an\nofficial’s conduct does not violate clearly established statuto-\nry or constitutional rights of which a reasonable person\nwould have known.” Kisela v. Hughes, 138 S. Ct. 1148, 1151\n(2018) (per curiam) (quoting White v. Pauly, 137 S. Ct. 548,\n551 (2017) (per curiam)). Qualified immunity requires a two-\npart inquiry: we must determine (1) whether facts alleged or\nshown by a plaintiff make out a violation of a constitutional\nright, and (2) if so, whether that right was clearly established\n\f8 No. 17-1510\n\nat the time of the defendant’s alleged misconduct. Pearson v.\nCallahan, 555 U.S. 223, 232 (2009).\n It has been clear since at least Franks v. Delaware, 438 U.S.\n154 (1978), that falsifying the factual basis for a judicial\nprobable-cause determination violates the Fourth Amend-\nment. A judicial determination of probable cause is normally\nentitled to a presumption of validity, but\n this presumption is premised on an “assump-\n tion … that there will be a truthful showing” of\n probable cause. [Franks, 438 U.S.] at 164–65, 98\n S. Ct. 2674 (emphasis in original). Accordingly,\n the presumption may give way on a showing\n that the officer who sought the warrant “know-\n ingly or intentionally or with a reckless disre-\n gard for the truth, made false statements to the\n judicial officer, and that the false statements\n were necessary to the judicial officer’s deter-\n mination that probable cause existed for the ar-\n rest.” Beauchamp v. City of Noblesville, Ind.,\n 320 F.3d 733, 742–43 (7th Cir. 2003) (citing\n Franks, 438 U.S. at 155–56, 98 S. Ct. 2674).\nWhitlock v. Brown, 596 F.3d 406, 410 (7th Cir. 2010) (omission\nin original) (alterations omitted).\n Lewis alleges that the officers falsely asserted, both in\ntheir police reports and in testimony at the probable-cause\nhearing, that he admitted residing at the apartment where\nthe gun was found and that they found evidence showing\nthat he lived there. Accepting these allegations as true, as we\nmust at this stage, no reasonable officer could have thought\nthis conduct was constitutionally permissible. It makes no\n\fNo. 17-1510 9\n\ndifference that our circuit caselaw situated the constitutional\nviolation in the Due Process Clause rather than the Fourth\nAmendment.\n The question remains whether the claim is timely. A\n§ 1983 claim borrows the statute of limitations for analogous\npersonal-injury claims in the forum state; in Illinois that\nperiod is two years. 735 ILL. COMP. STAT. 5/13-202; Wallace v.\nKato, 549 U.S. 384, 388–89 (2007). But federal law determines\nwhen the claim accrues. Wallace, 549 U.S. at 388–89.\n Manuel II addressed the accrual question the Supreme\nCourt remanded in Manuel I, holding that a Fourth Amend-\nment claim for wrongful pretrial detention accrues when the\ndetention ceases. 903 F.3d at 669. Two considerations sup-\nported this conclusion. First, because the constitutional\nviolation is “ongoing” rather than “discrete,” the claim\naccrues when the ongoing violation ends. Id. Second, “a\nclaim cannot accrue until the would-be plaintiff is entitled to\nsue, yet the existence of detention forbids a suit for damages\ncontesting that detention’s validity.” Id. at 670 (citing Preiser\nv. Rodriguez, 411 U.S. 475 (1973), and Heck v. Humphrey,\n512 U.S. 477 (1994)).\n Under Manuel II, Lewis’s Fourth Amendment claim is\ntimely. Lewis remained in jail until the charges against him\nwere dropped on September 29, 2015. He filed this § 1983\nsuit less than a year later on July 26, 2016, well within the\ntwo-year statute of limitations. 2 He is entitled to move\nforward on his Fourth Amendment claim.\n\n2 We note that the Supreme Court has granted certiorari to resolve a\ncircuit split on the claim-accrual question reserved in Manuel I. See\nMcDonough v. Smith, No. 18-485, 2019 WL 166879 (Mem.) (Jan. 11, 2019).\n\f10 No. 17-1510\n\nB. Due-Process Claim\n Lewis argues that this same misconduct by law enforce-\nment—falsifying the police reports that led to his pretrial\ndetention—also violated his right to due process, giving rise\nto an additional constitutional claim under § 1983. Manuel I\nholds otherwise, as does our decision on remand in\nManuel II.\n To reiterate, Manuel I explained that “[i]f the complaint is\nthat a form of legal process resulted in pretrial detention\nunsupported by probable cause, then the right allegedly\ninfringed lies in the Fourth Amendment.” 137 S. Ct. at 919.\nAs we’ve noted above, Manuel I clarified that the initiation of\nformal legal process “cannot extinguish the detainee’s\nFourth Amendment claim—or somehow, as the Seventh Circuit\nhas held, convert that claim into one founded on the Due Process\nClause.” Id. at 918–19 (emphasis added). It’s now clear that a\n§ 1983 claim for unlawful pretrial detention rests exclusively\non the Fourth Amendment.\n Lewis relies on Hurt v. Wise as support for his position\nthat pretrial detention based on fabricated evidence violates\nrights secured by two constitutional provisions—the Fourth\nAmendment and the Due Process Clause of the Fourteenth—\nand is actionable under § 1983 as two separate constitutional\nclaims. Hurt conflicts with Manuel I and II, so we take this\nopportunity to clear up the conflict.\n In Hurt the police arrested three siblings for their sus-\npected roles in the death of their uncle. “But one by one,\neach was absolved”: one sibling was never criminally\ncharged, the next saw the charges against her dropped after\nfour months in jail, and the third was acquitted at trial after\n\fNo. 17-1510 11\n\neight months in jail. Hurt, 880 F.3d at 835. The three siblings\nsued the officers accusing them of fabricating evidence—\nincluding confessions—and seeking relief under § 1983 and\nIllinois law. Id. The officers moved for summary judgment\nbased on qualified immunity. The district court denied the\nmotion, id. at 839, and we mostly affirmed.\n As relevant here, Hurt first rejected the officers’ qualified-\nimmunity defense on the Fourth Amendment claim, con-\ncluding that in light of the evidence in the summary-\njudgment record, a reasonable trier of fact could find that the\nplaintiffs “were arrested without even arguable probable\ncause[] and thus in violation of the Fourth Amendment.” Id.\nat 843 (citing Manuel I, 137 S. Ct. at 918–19).\n Two of the Hurt plaintiffs—the two that were held in jail\npending trial—argued that the same police misconduct\nsupported an additional claim for violation of their right to\ndue process, relying on the malicious-prosecution/due-\nprocess theory embedded in our circuit caselaw. See, e.g.,\nJulian v. Hanna, 732 F.3d 842 (7th Cir. 2013); Newsome,\n256 F.3d 747. Hurt determined that Manuel I had not dis-\nturbed the general rule of the Newsome line of cases: while\nthere is “no free-standing constitutional tort of malicious\nprosecution,” other constitutional rights protect people\nagainst “abusive arrests [and] fabrication of evidence.”\n880 F.3d at 843. What mattered was that the plaintiffs had\n“identified the constitutional right at issue”—the Due\nProcess Clause, which “forbids the [S]tate from depriving a\nperson of liberty (including by pre-trial detention) based on\nmanufactured evidence.” Id.\n But in Manuel II—decided nine months after Hurt—we\nexplained that all § 1983 claims for wrongful pretrial deten-\n\f12 No. 17-1510\n\ntion—whether based on fabricated evidence or some other\ndefect—sound in the Fourth Amendment. Like the plaintiffs\nin Hurt, Manuel relied on the tort of malicious prosecution\nas an analogy. 903 F.3d at 669. We explained that while this\n“might have seemed sensible before the Supreme Court\nspoke,” after Manuel I it is the “wrong characterization”;\nindeed, “the Justices deprecated the analogy to malicious\nprosecution.” Id. at 669–70 (citing Manuel I, 137 S. Ct. at 917–\n20). Instead, the constitutional right in question is the “right\nnot to be held in custody without probable cause,” the\nviolation of which gives rise to a “plain-vanilla Fourth\nAmendment” claim under § 1983 because the essential\nconstitutional wrong is the “absence of probable cause that\nwould justify the detention.” Id. at 670 (citing Manuel I,\n137 S. Ct. at 917–20). In other words, the Fourth Amend-\nment, not the Due Process Clause, is the source of the right\nin a § 1983 claim for unlawful pretrial detention, whether\nbefore or after the initiation of formal legal process.\n We overrule precedent only in limited circumstances; a\nclear intracircuit conflict is one of them. Glaser v. Wound Care\nConsultants, Inc., 570 F.3d 907, 915–16 (7th Cir. 2009).\nManuel II and Hurt cannot be reconciled. Indeed, Hurt is\nhard to square with Manuel I. The Supreme Court held that\nthe initiation of formal legal process following an arrest does\nnot convert a Fourth Amendment unreasonable-seizure\nclaim “into one founded on the Due Process Clause.”\n137 S. Ct. at 919. The injury of wrongful pretrial detention\nmay be remedied under § 1983 as a violation of the Fourth\nAmendment, not the Due Process Clause. To the extent Hurt\nholds otherwise, it is overruled.\n\fNo. 17-1510 13\n\n We close by noting the important point that a claim for\nwrongful pretrial detention based on fabricated evidence is\ndistinct from a claim for wrongful conviction based on fabri-\ncated evidence: “[C]onvictions premised on deliberately\nfabricated evidence will always violate the defendant’s right\nto due process.” Avery v. City of Milwaukee, 847 F.3d 433, 439\n(7th Cir. 2017) (emphasis added); see also Mooney v. Holohan,\n294 U.S. 103, 112 (1935) (explaining that the use of perjured\ntestimony “to procure the conviction and imprisonment of a\ndefendant is as inconsistent with the rudimentary demands\nof justice as is the obtaining of a like result by intimidation”);\nWhitlock v. Brueggemann, 682 F.3d 567, 580 (7th Cir. 2012).\nMoreover, misconduct of this type that results in a convic-\ntion might also violate the accused’s right to due process\nunder the rubric of Brady v. Maryland, 373 U.S. 83 (1963), and\nKyles v. Whitley, 514 U.S. 419 (1995), if government officials\nsuppressed evidence of the fabrication. Avery, 847 F.3d at\n443–44. We reiterate that we deal here only with a claim of\nwrongful pretrial detention, not a claim of wrongful convic-\ntion.\n * * *\n Applying Manuel I and II, we hold that Lewis timely filed\na viable Fourth Amendment claim for wrongful pretrial\ndetention. We therefore reverse the dismissal of that claim\nand remand for further proceedings. Under Manuel I and II,\nthe Due Process Clause does not apply, so the judgment is\notherwise affirmed.\n AFFIRMED in part and REVERSED AND REMANDED in part.\n[END_CASE]", "role": "user" } ]
4,584,013		Ray Fuller v. Matthew G. Whitaker	2019-01-23	17-3176	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before WOOD, Chief Judge, and MANION and ROVNER, Circuit Judges.", "parties": "", "opinions": [{"author": "Ilana Kara Diamond Rovner", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\nNo. 17-3176\n\nRAY FULLER,\n Petitioner,\n\n v.\n\n\nMATTHEW G. WHITAKER, Acting\nAttorney General of the United\nStates,\n Respondent.\n\n\n On Petition for Review of an Order\n of the Board of Immigration Appeals\n No. A077-811-635\n\n\n\n ARGUED NOVEMBER 1, 2018 — DECIDED JANUARY 23, 2019\n\n\n Before WOOD, Chief Judge, and MANION and ROVNER, Circuit\nJudges.\n ROVNER, Circuit Judge. Ray Fuller asked the Board of\nImmigration Appeals to exercise its authority to reopen his\nremoval proceeding sua sponte so that he could present new\n\n2 No. 17-3176\n\nevidence in support of his request to defer his removal from\nthis country under the Convention Against Torture (“CAT”).1\nFuller contends that he likely will face torture upon return to\nhis native Jamaica because he is bisexual. The Board previously\nhad sustained an Immigration Judge’s finding that Fuller had\nnot presented a credible case as to his alleged sexual orienta-\ntion and fear of torture. In support of his motion to reopen,\nFuller submitted to the Board several new letters of support\nfrom acquaintances attesting to prior incidents in which he was\nthe victim of violence in Jamaica owing to his sexual orienta-\ntion. In denying this request, the Board explained that\n“[Fuller’s] motion does not challenge our conclusions regard-\ning his credibility or his eligibility for deferral of removal, and\nwe do not find that his letters of support would materially alter\nthese findings.” A.R. 3 (internal record citation omitted).\nBecause the Board’s stated rationale for disposing of Fuller’s\nmotion reflects a misapprehension of the basis for his request,\nand because we cannot be confident that the Board’s mistake\ndid not taint the exercise of its otherwise unreviewable\ndiscretion over the merits of the motion, we conclude that the\nBoard committed legal error in denying his request for relief.\nOn that basis, we grant Fuller’s petition for review and remand\nto the Board for further proceedings.\n\n\n1\n We recognize that when the Board acts in response to a litigant’s request,\nit is not acting sua sponte. See Shah v. Holder, 736 F.3d 1125, 1126 (7th Cir.\n2013). We shall nonetheless refer to the Board’s authority to reopen a\nproceeding sua sponte in order to distinguish that power from the Board’s\ndistinct authority to entertain a one-time motion to reopen filed within 90\ndays of final agency action. Compare 8 C.F.R. § 1003.2(c)(2) with id.\n§ 1003.2(a).\n\nNo. 17-3176 3\n\n I.\n Our summary of the facts may be somewhat abbreviated,\nas this is the fourth time that Fuller’s case has come before us.\nWe refer the reader to our two prior published decisions for\nadditional background. See Fuller v. Lynch, 833 F.3d 866 (7th\nCir. 2016) (“Fuller I”); Fuller v. Sessions, 879 F.3d 265 (7th Cir.\n2018) (“Fuller II”).\n Fuller entered the country legally on a fiancé visa in 1999\nand married an American citizen the following year. In 2004,\nhe pleaded guilty to attempted criminal sexual assault and an\nIllinois court ordered him to serve a term of 30 months’\nprobation. After he later violated the terms of his probation,\nFuller was re-sentenced to a prison term of four years.\n Following Fuller’s release from prison in 2014, the Depart-\nment of Homeland Security (“DHS”) initiated removal\nproceedings against him. The government charged, and the\nBoard would later agree, that Fuller was removable from the\nUnited States pursuant to 8 U.S.C. § 1227(a)(1)(D)(i) because he\nhad lost his conditional permanent resident status. (In 2004,\nFuller and his wife, whom he divorced the following year,\nfailed to appear for a mandatory interview with immigration\nofficials, triggering the revocation of his conditional residency\nstatus.)2 And because, as the Board would also agree, Fuller’s\nconviction for attempted criminal sexual assault constituted a\n\n\n2\n The government alleged that Fuller was removable on other grounds, but\nthe Board found it unnecessary to reach these other grounds. Fuller does\nnot contest that he is removable on the ground that he lost his status as a\nconditional permanent resident of the United States.\n\n4 No. 17-3176\n\n“particularly serious crime,” he was disqualified from seeking\nwithholding of removal under both the Immigration and\nNationality Act and the CAT. See 8 U.S.C. § 1231(b)(3)(B)(ii).\n Fuller instead sought deferral of his removal under the\nCAT, alleging that he was likely to be tortured as a bisexual\nwere he returned to Jamaica. See 8 C.F.R. §§ 208.16(c)(4),\n208.17(a).3 In a hearing before the Immigration Judge (“IJ”),\nFuller testified to a history of sexual relationships with both\nmen and women beginning in his preteen years and continuing\nthrough his (by then dissolved) marriage to a U.S. citizen.\nFuller also recounted a number of incidents in Jamaica in\nwhich he was physically and verbally attacked by those who\nperceived him to be gay; one of these incidents involved a\nshooting by a homophobic mob in the gay-friendly resort town\nof Ocho Rios. Fuller further indicated that his sisters had\ndisowned him for his sexual orientation. In addition to his\ntestimony, Fuller presented the IJ with seven letters from his\nchildren and friends, attesting to both his bisexuality and to the\nviolence he had experienced in Jamaica on account of his\nsexual orientation.\n The IJ found that Fuller’s testimony was not credible; and\nbecause she disbelieved his testimony and also questioned the\nveracity of the letters he had submitted, the IJ concluded that\n\n\n3\n For purposes of the CAT, torture is defined to include “any act by which\nsevere pain or suffering, whether physical or mental, is intentionally\ninflicted on a person … for any reason based on discrimination of any kind,\nwhen such pain or suffering is inflicted by or at the instigation of or with\nthe consent or acquiescence of a public official or other person acting in an\nofficial capacity.” 8 C.F.R. § 208.18(a)(1).\n\nNo. 17-3176 5\n\nFuller had not established that he is bisexual and as such faces\na likelihood of torture if he is forced to return to Jamaica. She\nconsequently denied his request for relief under the CAT. A.R.\n181–202. In finding that Fuller’s testimony was not credible, the\nIJ cited discrepancies both as to certain basic facts (including\nthe number and names of sisters, as well as confusing his sister\nwith his mother in his testimony) and as to the details of the\nprior instances of violence he allegedly had experienced in\nJamaica (including a ten-year discrepancy as to the timing of\nthe Ocho Rios shooting and which of his former boyfriends\nwas present at the incident, as recounted in his written state-\nment versus his subsequent testimony in court). As for the\nsupporting letters from Fuller’s friends, the IJ noted that none\nof the authors were available to testify although two of them\nwere former boyfriends who lived in the United States. The\nletters also diverged in certain respects from Fuller’s testi-\nmony: one letter suggested that Fuller had been shot on\nmultiple occasions in Jamaica, whereas Fuller had only\ndescribed one shooting. And all of the letters contained the\nsame centered, dotted signature line, which caused the IJ to\ndoubt their provenance. A.R. 192–96. The IJ summarized:\n [Fuller’s] credibility is seriously lacking in this case.\n He is unable to recall many of the most important\n details of the events that he claims … had an impact\n on his life, particularly with respect to his claim of\n being bisexual. He has failed to provide the Court\n with many documents that could have clarified\n many of these inconsistencies, such as medical\n records, police reports, corroborating letters of\n support or witnesses. The letters that he has pre-\n\n6 No. 17-3176\n\n sented to the Court are given very little weight\n because the Court is unable to verify their authentic-\n ity and has not had an opportunity to cross-examine\n or to even hear testimony from any of the makers of\n these statements. The respondent has given very\n little corroborative evidence to evaluate his claim\n that he is in fact bisexual and that he was in fact\n harmed in Jamaica on account of his sexual orienta-\n tion in the past.\nA.R. 195.\n In 2015, the Board affirmed the denial of CAT relief to\nFuller based on the IJ’s adverse credibility findings. A.R. 61–62.\n“[Fuller] has shown no clear error in the Immigration Judge’s\ndetailed findings of fact, to include the findings that the\nrespondent did not credibly testify and did not establish that\nhe has ever been bisexual. The respondent’s inconsistent\nstatements and implausible explanations fully support an\nadverse credibility determination.” A.R. 62 (internal record\ncitation omitted).\n Fuller then appealed to this court, but we denied his\npetition for review in a divided opinion. Fuller I, 833 F.3d 866.\nWe concluded in relevant part that the IJ’s adverse credibility\ndetermination, as affirmed by the Board, was supported by\nsubstantial evidence. Id. at 871–72. Although we acknowledged\nthat some of the IJ’s stated reasons for disbelieving Fuller were\noff the mark (including, for example, the citation of his mar-\nriage to a woman and multiple other prior heterosexual\nrelationships as a reason to think he was not bisexual), others\nwere sound. The latter included the discrepancies between his\n\nNo. 17-3176 7\n\nwritten statement and his oral testimony as to when the Ocho\nRios shooting had occurred, his confusion as to the number\nand names of his sisters (and mixing up his mother with his\nsister), and a material lie he had told government officials in\n2001 in seeking permission to visit Jamaica. We were satisfied\nthat the IJ’s adverse credibility finding was amply supported\nin these respects. Id. We added that if Fuller were able to gather\nnew evidence demonstrating that the IJ was mistaken as to his\nsexual orientation, he could ask the IJ to sua sponte reopen the\nproceeding. Id. at 872. The dissent, unpersuaded that these\ndiscrepancies cast doubt on Fuller’s claims that he was bisexual\nand had suffered violence as a result, contended that the\npetition for review should have been granted. Id. at 872–74.\n In January 2017, Fuller filed a motion asking the Board to\nreconsider and/or reopen the proceedings. A.R. 48–54. The\nprincipal contention that Fuller advanced in his motion was\nthat the IJ had erred in rejecting his representation that he is\nbisexual and as such faces likely persecution and torture upon\nhis return to Jamaica. Among other points, Fuller argued that\nhe had testified without contradiction that he is bisexual and\nhas been rejected by his family members because of his sexual\norientation; that given the hostility and violence bisexual\nindividuals experience in Jamaica, he would have no reason to\nfalsely characterize himself as bisexual; that for the same\nreasons, it was difficult for him to locate gay or bisexual\nJamaicans who would put themselves at risk by giving\ntestimony that would confirm his bisexuality; that the inconsis-\ntencies and mistakes in his testimony before the IJ were due to\nhis fear of being returned to Jamaica; and that the IJ’s rationale\nfor discrediting his testimony betrayed her own misunder-\n\n8 No. 17-3176\n\nstandings about bisexuality. A.R. 50–52, 54. Fuller added that\nhe had been able to obtain affidavits—actually, letters—from\nindividuals who supported his claim that had not been\navailable to him previously. A.R. 53.\n The Board denied Fuller’s motion in February 2017. A.R. 43.\nThe Board noted both that the motion was untimely and that,\nalthough Fuller referenced new affidavits that were unavail-\nable to him previously, “he has not submitted such evidence\nwith the motion, nor has he shown that a different outcome\nmay be warranted based on the new evidence.” A.R. 43.\n On receipt of the Board’s order denying his motion, Fuller\nfiled what he styled as a “Statement of Notice to Appeal\n(motion to reopen).” A.R. 22. In that statement, Fuller chal-\nlenged the Board’s declaration that he had not submitted the\nnew evidence referred to in his motion to reopen, observing,\n“The new evidence was the cornerstone of my motion so there\nis no way that it would not be sent in with the motion. I think\nthat this was a clerical mishap that caused this and I am now\nmaking sure the new pieces of evidence are included.” A.R. 22.\nFuller went on to summarize briefly his basis for asking the\nBoard to reopen his removal proceeding (and on what grounds\nhe was seeking deferral of removal), and concluded his\nstatement with the following: “I have new evidence to submit\nto the court to help to prove my case. I pray that I will be given\nthe chance to prove my credibility in court with the help of the\nnew evidence, and garner a positive outcome to my situation.”\nA.R. 22. He attached to the statement copies of the three letters\nreferred to in his prior motion to reconsider and/or reopen.\n\nNo. 17-3176 9\n\n The Board treated Fuller’s “statement” as a second motion\nto reopen, and denied that motion. A.R. 3–4. The Board noted\nin the first instance that the motion was barred in both number\nand untimeliness, and that Fuller had not identified any\napplicable exception to those limits. Nor, in the Board’s view,\nhad Fuller demonstrated that the circumstances of his case\nwere so exceptional as to warrant the exercise of the Board’s\nauthority to sua sponte reopen the proceedings. A.R. 3. The\nBoard explained:\n Even accepting [Fuller’s] argument that he previ-\n ously submitted his proffered letters of support, we\n find no basis on which to alter our October 27, 2015\n dismissal of his appeal or our previous denial of his\n motion to reopen. [Fuller’s] motion does not chal-\n lenge our conclusions regarding his credibility or his\n eligibility for deferral of removal, and we do not\n find that his letters of support would materially alter\n these findings. …\nA.R. 3 (internal record citations omitted).\n Fuller then filed the instant petition for review of the\nBoard’s order, along with a request that we stay his removal\npending resolution of the merits of his petition. After first\ndenying Fuller a stay, see Fuller II, 879 F.3d 265, we ultimately\nagreed to stay his removal and appointed counsel to represent\nhim. With the benefit of briefing and argument, we now\nproceed to the merits of Fuller’s petition for review.\n\n10 No. 17-3176\n\n II.\n We begin by addressing the limits of our jurisdiction. With\nexceptions not applicable here, a petitioner is limited to one\nmotion to reopen filed within 90 days of the Board’s final\nadministrative decision. See 8 U.S.C. § 1229a(c)(7)(A) & (C)(i);\n8 C.F.R. § 1003.2(c)(2). Fuller sought reopening long after the\n90-day time limit had expired and, consequently, his only\nrecourse was to ask the Board to exercise its authority to\nreopen the removal proceeding sua sponte, see 8 C.F.R.\n§ 1003.2(a) (“The Board may at any time reopen on its own\nmotion any case in which it has rendered a decision.”), a power\nthe Board has said it will reserve for “exceptional situations,”\nIn re J– J–, 21 I. & N. Dec. 976, 984 (B.I.A. 1997); see also In re\nG– D–, 22 I. & N. Dec. 1132, 1133–34 (B.I.A. 1999). Because the\ngoverning regulation permits but does not require the Board\nto exercise this power and there is no law defining what\nsituations will qualify as “exceptional,” there is no meaningful\nstandard by which to evaluate the exercise of the Board’s\ndiscretion, and consequently the merits of the Board’s decision\nto deny a motion to reopen sua sponte are unreviewable. Anaya-\nAguilar v. Holder, 683 F.3d 369, 372 (7th Cir. 2012) (“Anaya-\nAguilar I”) (collecting cases); see also Fuller II, 879 F.3d at 268.\nBut we do possess the authority to recognize and address\nconstitutional transgressions and other legal errors that the\nBoard may have committed in disposing of such a motion, see\n8 U.S.C. § 1252(a)(2)(D); Fuller II, 879 F.3d at 268; Zambrano-\nReyes v. Holder, 725 F.3d 744, 751 (7th Cir. 2013); Anaya-Aguilar\nv. Holder, 697 F.3d 1189, 1190 (7th Cir. 2012) (clarifying Anaya-\nAguilar I on denial of rehearing), including whether Board’s\nstated rationale for denying such a motion indicates that it\n\nNo. 17-3176 11\n\nignored evidence that the alien tendered in support of his\nrequest, Fuller II, 879 F.3d at 268 (citing Joseph v. Lynch, 793 F.3d\n739, 741–42 (7th Cir. 2015)). Contrary to the government’s\nargument, the REAL ID Act of 2005, which stripped us of the\nauthority to review various discretionary decisions of the\nBoard, did not alter our ability to address such legal errors. See\n§ 1252(a)(2)(D); Cevilla v. Gonzales, 446 F.3d 658, 660 (7th Cir.\n2006).4\n Fuller charges the Board with two legal errors in disposing\nof his motion to reopen. He contends first that the Board\nmisapprehended the thrust of his motion to reopen and the\nsignificance of the additional letters of support he submitted in\nsupport of the motion. The Board understood Fuller not to be\nchallenging its conclusions as to his credibility or his eligibility\nfor deferral of removal. But that understanding cannot be\nsquared with the substance of his motion, which was a direct\nchallenge to these conclusions, Fuller argues. Fuller also\ncontends that the Board’s summary rejection of his new\nevidence as “insufficient to materially alter” its adverse\nfindings was so perfunctory as to preclude confirmation that\nthe Board gave meaningful consideration to his evidence.\n\n\n4\n At oral argument, the government’s counsel suggested that because Fuller\nis seeking reopening in order to renew his request for relief under the CAT,\nand because a denial of relief under the CAT itself is reviewable by this\ncourt, see Teneng v. Holder, 602 F. App’x 340, 347 (7th Cir. 2015) (non-\nprecedential decision); Wani Site v. Holder, 656 F.3d 590, 593 (7th Cir. 2011),\nsection 1252(a)(2)(D) does not apply to the Board’s refusal to exercise its\nauthority to sua sponte reopen the proceedings. Because that contention was\nnot raised in the government’s brief, we deem it waived. E.g., Pope v. Perdue,\n889 F.3d 410, 417 n.4 (7th Cir. 2018).\n\n12 No. 17-3176\n\nBecause we agree with Fuller that the Board mischaracterized\nthe basis for his motion, and because we can have no confi-\ndence that its error did not taint the exercise of its discretion as\nto the merits of the motion, we will remand the matter to the\nBoard on that basis, without deciding whether the Board,\nabsent that error, was obligated to say more than it did in\ndenying Fuller’s request that it reopen the removal proceeding\nsua sponte.\n We should note at the outset that we regard Fuller’s\n“Statement of Notice to Appeal (motion to reopen),” which the\nBoard treated as a second motion to reopen sua sponte, simply\nas an effort to supplement the record with the three new letters\nof support that were somehow missing from Fuller’s prior\nmotion. The “Statement,” as we read it, did not purport to\nmake any new arguments in favor of reopening or even to\naddress the Board’s rationale in denying his prior motion,\nbeyond tendering the letters that the Board had said were\nmissing from Fuller’s prior submission. Certainly it was within\nthe Board’s authority to characterize Fuller’s “Statement” as a\nsecond motion to reopen; we do not mean to suggest other-\nwise. But, in determining whether the Board committed any\nlegal error, we shall evaluate the Board’s order disposing of\nthat second motion in light of the arguments Fuller advanced\nboth in his “Statement” and in his first motion to reopen, which\nwere of one piece.\n The Board said in its order that Fuller was not challenging\nits prior conclusions regarding his credibility or his eligibility\nfor deferral of removal; but that declaration cannot be recon-\nciled with either the letter or the spirit of Fuller’s request for\nrelief. Nowhere in either his motion to reopen or in his follow-\n\nNo. 17-3176 13\n\nup “Statement” did Fuller purport to forgo a challenge to the\nIJ’s finding (as sustained by the Board) that he was not credible\nas to his sexual orientation and history of persecution in\nJamaica and that, consequently, he could not claim eligibility\nfor deferral of removal under the CAT as a bisexual who was\nlikely to be tortured. Indeed, considering that the Board’s 2015\norder had deemed Fuller ineligible for deferral of removal on\nthe strength of the IJ’s finding that he was not credible as to his\npurported sexual orientation, it would be surprising if Fuller’s\nmotion did not challenge the Board’s conclusions as to his\ncredibility and, in turn, his eligibility for deferral of removal. It\nis true that Fuller made statements in his motion to reopen to\nthe effect that the IJ’s adverse credibility determination “cannot\nand does not preclude him from being a bisexual” and “does\nnot change the fact that [t]he Respondent is bisexual.” A.R. 51.\nBut such statements cannot reasonably be construed as\naccepting, even for the sake of argument, the IJ’s credibility\nfinding. The entire thrust of the motion to reopen was that\nFuller is, in fact, bisexual and has in fact, experienced violence\nin Jamaica as a result of his sexual orientation; that the IJ’s\nrationale in discrediting him on these points was suspect; and\nthat the new letters of support tendered in support of his\nrequest to reopen would eliminate any doubt as to the likeli-\nhood that he will be tortured if forced to return to Jamaica. If\nFuller did not say so expressly, it was nonetheless clear from\nthe substance of his arguments that he meant to challenge the\nadverse credibility determination and the resulting finding that\nhe had no basis on which to seek deferral of removal. See A.R.\n51 (“The pertinent facts should be that [Fuller] testified without\ncontradiction that he [is] bisexual, [and] he was rejected by his\n\n14 No. 17-3176\n\nfamily because of this.”); A.R. 54 (“The Immigration Judge’s\nassertion that [Fuller] was not in danger if removed to Jamaica\nis clearly a decision made with the lack of in-depth investiga-\ntion by the fact-finders in this case.”). And, indeed, Fuller\nultimately did say this expressly in his “Statement”: “I have\nnew evidence to submit to the court to help to prove my case.\nI pray that I will be given the chance to prove my credibility in\ncourt with the help of the new evidence … .” A.R. 22.\n So the Board’s understanding of Fuller’s motion to\nreopen—and of what challenges he was purportedly forgo-\ning—was erroneous. And to the extent that misunderstanding\nnecessarily affected how the Board exercised its discretion as\nto the merits of his motion, it amounts to a legal error that\nentitles him to relief. We have repeatedly said that the Board\ncommits a legal error within our jurisdiction to address when\nit ignores, misapplies, or fails to meaningfully consider the\nevidence an alien has submitted in support of his motion to\nreopen sua sponte. See Arej v. Sessions, 852 F.3d 665, 667 (7th Cir.\n2017); Ni v. Holder, 715 F.3d 620, 630 (7th Cir. 2013); Moosa v.\nHolder, 644 F.3d 380, 386 (7th Cir. 2011). Contrary to the\ngovernment’s suggestion, our ability to recognize such an error\nis not dependent on the particular reasons why an alien is\nasking the Board to exercise its sua sponte authority, be it a\nsubsequent change in the law, see In re G– D–, supra, 22 I. & N.\nDec. at 1135, or (as here) the availability of new evidence\nsupporting the alien’s claim for relief. When the Board\nmischaracterizes the evidence tendered or misapprehends the\npurpose for which it is offered, it has not complied with its\nduty to recognize and consider the basis on which the alien has\n\nNo. 17-3176 15\n\nasked the Board to exercise its regulatory authority to reopen\nthe proceedings sua sponte. See Arej, 852 F.3d at 667.\n We acknowledge that the Board, after stating that Fuller\nwas not challenging its findings as to his credibility and\neligibility for deferral of removal, added that “we do not find\nthat his letters of support would materially alter these find-\nings,”(A.R. 3); but that addition does not convince us that we\nshould deny Fuller’s petition for review. Having misappre-\nhended or mischaracterized what findings Fuller was or was\nnot challenging in his motion to reopen, we cannot be confi-\ndent that the Board’s additional half-sentence as to the import\nof Fuller’s new evidence represents an independent and well-\nconsidered alternative ground for the Board’s judgment. We\nmight have more assurance in that regard had the Board said\nsomething more about the letters of support and why the\nBoard did not think they would materially alter its assessment\nof whether he is entitled to deferral of removal. But the Board’s\nfailure to elaborate on this point leaves us with no assurance\nthat the Board’s exercise of discretion was unaffected by its\nerror in appreciating the purpose of Fuller’s new evidence. To\nbe clear, our point is not that the Board must say enough to\nconvince us that the Board exercised its discretion “correctly”\non Fuller’s motion to reopen; the merits of its ruling are of\ncourse beyond the limited scope of our review. But in the\nimmediate wake of a grave mischaracterization of the basis for\nFuller’s motion, the Board’s additional boilerplate observation\nthat Fuller’s new letters would not materially alter its prior\nadverse findings cannot eradicate doubt as to whether the\nBoard actually considered Fuller’s evidence and understood\nwhat he was arguing based on that evidence. Wholly apart\n\n16 No. 17-3176\n\nfrom the question of how much the Board was obligated in the\nfirst instance to say in disposing of Fuller’s motion, the glaring\nerror in what it did say suggests it may never have given\nmeaningful consideration to Fuller’s evidence. The Board’s\norder as written leaves us in the same position we would be if\nits stated rationale indicated that it had altogether ignored the\nevidence and arguments Fuller put before it. See Joseph, 793\nF.3d at 741–42; Kiorkis v. Holder, 634 F.3d 924, 928 (7th Cir.\n2011); Iglesias v. Mukasey, 540 F.3d 528, 531 (7th Cir. 2008).\n The merits of Fuller’s case for the sua sponte reopening of\nhis removal proceeding are for the Board and the Board alone\nto judge. Nothing in our opinion should be construed as a\nsignal that we believe Fuller is entitled to reopening; our views\non that question are, in any event, irrelevant. Suffice it to say\nthat the Board in this case plainly misapprehended the basis for\nFuller’s motion and then dispensed with the merits of the\nmotion in a perfunctory half-sentence, giving us no assurance\nthat it genuinely exercised its discretion as to what Fuller was\nactually arguing. The Board’s legal error compels us to return\nthe matter to the Board for reconsideration.\n III.\n We GRANT the petition for review and REMAND the case\nto the Board for further proceedings consistent with this\nopinion.\n\n17 No. 17‐3176", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4361266/", "author_raw": "Ilana Kara Diamond Rovner"}, {"author": "MANION, Circuit Judge, dissenting", "type": "dissent", "text": "MANION, Circuit Judge, dissenting. The court’s opinion \nadmirably attempts to toe the thin line between reviewing a \ndecision of the Board of Immigration Appeals to ensure it \nexercised its discretion and reviewing the Board’s exercise of \ndiscretion itself. But it strays from the former into the latter. \nTherefore, I respectfully dissent. \n I. \n An immigration judge (IJ) found Ray Fuller lacked credi‐\nbility and denied him relief under the Convention Against \nTorture. The Board affirmed the decision, concluding Fuller \nfailed to show clear error concerning the IJ’s credibility de‐\ntermination. A.R. 62 (“[Fuller’s] inconsistent statements and \nimplausible explanations fully support an adverse credibility \ndetermination.”). We denied Fuller’s petition for review. See \nFuller v. Lynch (Fuller I), 833 F.3d 866, 872 (7th Cir. 2016). In \naccord with the deferential standard of review we apply in \nthese cases, we too concluded there was sufficient evidence \nto support the IJ’s credibility determination. Specifically, we \nconsidered “Fuller’s inability to recall significant details” of \nhis alleged shooting (such as the decade in which it oc‐\ncurred), his confusion concerning his sisters and his mother, \nthe suspiciousness of his letters of support, and his lie on his \n2001 immigration application. Id. at 869–71. \n Fuller then asked the Board to exercise its sua sponte au‐\nthority to reopen his removal proceedings, claiming he had \nattached new evidence to the motion. See 8 C.F.R. § 1003.2(a). \nThe Board declined, noting Fuller had not attached any new \nevidence to his motion. Fuller made another motion, this \ntime definitely attaching three new letters in support of his \nclaims. The Board declined again. The critical sentence of the \nBoard’s second decision is as follows: “The respondent’s mo‐\n\nNo. 17‐3176 18 \n\ntion does not challenge our conclusions regarding his credi‐\nbility or his eligibility for deferral of removal, and we do not \nfind that his letters of support would materially alter these \nfindings.” A.R. 3 (internal record citations omitted). Fuller \npetitions us again. \n II. \n Appellate review of the Board’s decisions concerning its \nsua sponte authority is severely limited. We have jurisdiction \nonly to review for legal or constitutional errors. Anaya‐\nAguilar v. Holder, 697 F.3d 1189, 1190 (7th Cir. 2012); see also \nArej v. Sessions, 852 F.3d 665, 668 (7th Cir. 2017) (Sykes, J., \nconcurring in the judgment) (“[W]e lack jurisdiction to re‐\nview how the [Board] evaluated and weighed [the petition‐\ner’s] evidence or to test its decision for abuse of discretion; \nwe may review its decision only for errors of law and consti‐\ntutional infirmities.”). We have defined “legal error” to in‐\nclude the Board’s failure “to exercise discretion at all by \ncompletely ignoring an argument.” Iglesias v. Mukasey, 540 \nF.3d 528, 530–31 (7th Cir. 2008). \n And that is the legal error the court finds here. The court \ngrants Fuller’s petition because of the Board’s statement that \nFuller was not challenging the Board’s “conclusions regard‐\ning his credibility or his eligibility for deferral.” The court \ncalls this “a grave mischaracterization” that “cannot be rec‐\nonciled with either the letter or the spirit of Fuller’s request \nfor relief.” Majority Op. at 12, 15. I disagree. \n First, Fuller’s second motion1 did not clearly challenge \nthe Board’s conclusions. Fuller’s pro se motion (his “State‐\n \n 1 The court treats Fuller’s first and second motions to reopen as “of \none piece.” Majority Op. at 12. But the court accepts the Board was well \n\n19 No. 17‐3176\n\nment”) contains three paragraphs. In the first paragraph, \nFuller asserts he attached the letters to the first motion and \nstates there must have been a clerical error. The second par‐\nagraph reiterates what he has said all along in these proceed‐\nings (he says he is bisexual, that he has experienced violence \nin Jamaica, and that he will experience more if he returns) \nand asks the Board to overturn the judgment in his case. The \nfinal paragraph asks for an opportunity “to present [his] case \nto the immigration court” and to “be given the chance to \nprove [his] credibility in court with the help of the new evi‐\ndence.” A.R. 22. Apart from that last statement, Fuller never \nmentions his credibility and never directly addresses his \ncredibility issues, which were the basis for the denial of his \npetition for deferral of removal. For instance, he does not \nexplain why his assertions should be trusted when he could \nnot keep straight whether he got shot in the 1980s or the \n1990s or when he has previously lied on an immigration ap‐\nplication. Neither does the restatement of his allegations \nnecessarily amount to a “challenge” to the Board’s earlier \ndeterminations. The IJ found Fuller did not testify credibly, \nand the Board concluded there was no clear error in that \nfinding. The Board was not required to treat Fuller’s re‐\nstatement of a summary of his own testimony as a “chal‐\nlenge” to that conclusion. Cf. Anderson v. Hardman, 241 F.3d \n544, 545–46 (7th Cir. 2001) (dismissing a pro se appeal where \nthe appellant “offer[ed] no articulable basis for disturbing \n\n\n \nwithin its power to treat Fuller’s second filing as an independent motion. \nId. If it was acceptable for the Board to do that, then we should not make \nit unacceptable by treating the two as one for the purposes of our review. \nTherefore, I treat the second motion on its own. \n\nNo. 17‐3176 20 \n\nthe district court’s judgment” and “simply repeat[ed] certain \nallegations of his complaint and cite[d] one irrelevant case”). \n So Fuller’s motion is ambiguous about whether it “chal‐\nlenges” the Board’s determinations, and this brings me to \nmy next point: we should not be in the business of interpret‐\ning “the spirit” of motions made to the Board. The resolution \nof ambiguities is a power that should lie with the entity ex‐\nercising discretion, not the one exercising an extremely lim‐\nited power of review. We are, after all, only concerned with \nwhether the Board completely ignored Fuller’s motion, not \nwith how the Board interpreted it. See Joseph v. Lynch, 793 \nF.3d 739, 742 (7th Cir. 2015) (“Joseph’s disagreement with \nthe Board about the significance of his and his brother’s \nstatements is simply an argument about how those state‐\nments were weighed. It does not clear the jurisdictional \nbar … .”).2 And the Board’s determination that Fuller’s mo‐\ntion did not challenge the Board’s earlier conclusions is a \nreasonable interpretation of the ambiguous pro se motion.3 \nAccordingly, there has been no showing the Board completely \nignored Fuller’s motion or arguments. \n \n\n\n \n 2 The majority in Arej v. Sessions conflated these considerations and \nheld the Board ignored the petitioner’s evidence because the Board \nreached a conclusion the majority deemed incorrect. 852 F.3d at 667 (ma‐\njority opinion). We should not allow that faulty rational to continue. \n 3 If the Board’s decision showed an absolute lack of understanding \nconcerning the contents of the motion, it would be appropriate for this \ncourt to question whether the Board actually considered the motion. But \nI conclude that is not what happened here. \n\n21 No. 17‐3176\n\n III. \n The court returns this case to the Board for it to exercise \nits discretion in resolving the merits—the court acknowledg‐\nes it has no authority to direct how the Board should exercise \nthat discretion. I completely agree with that description of \nour power. However, as I conclude the Board has already \ndemonstrated it exercised its discretion in resolving Fuller’s \nmotion, I respectfully dissent.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4361266/", "author_raw": "MANION, Circuit Judge, dissenting"}]}	WOOD	MANION	ROVNER	1		{"WOOD": ", Chief", "MANION": ", Circuit", "ROVNER": ", Circuit"}	2	1	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4584013/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Ray Fuller v. Matthew G. Whitaker\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-23\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\nNo. 17-3176\n\nRAY FULLER,\n Petitioner,\n\n v.\n\n\nMATTHEW G. WHITAKER, Acting\nAttorney General of the United\nStates,\n Respondent.\n\n\n On Petition for Review of an Order\n of the Board of Immigration Appeals\n No. A077-811-635\n\n\n\n ARGUED NOVEMBER 1, 2018 — DECIDED JANUARY 23, 2019\n\n\n Before WOOD, Chief Judge, and MANION and ROVNER, Circuit\nJudges.\n ROVNER, Circuit Judge. Ray Fuller asked the Board of\nImmigration Appeals to exercise its authority to reopen his\nremoval proceeding sua sponte so that he could present new\n\n2 No. 17-3176\n\nevidence in support of his request to defer his removal from\nthis country under the Convention Against Torture (“CAT”).1\nFuller contends that he likely will face torture upon return to\nhis native Jamaica because he is bisexual. The Board previously\nhad sustained an Immigration Judge’s finding that Fuller had\nnot presented a credible case as to his alleged sexual orienta-\ntion and fear of torture. In support of his motion to reopen,\nFuller submitted to the Board several new letters of support\nfrom acquaintances attesting to prior incidents in which he was\nthe victim of violence in Jamaica owing to his sexual orienta-\ntion. In denying this request, the Board explained that\n“[Fuller’s] motion does not challenge our conclusions regard-\ning his credibility or his eligibility for deferral of removal, and\nwe do not find that his letters of support would materially alter\nthese findings.” A.R. 3 (internal record citation omitted).\nBecause the Board’s stated rationale for disposing of Fuller’s\nmotion reflects a misapprehension of the basis for his request,\nand because we cannot be confident that the Board’s mistake\ndid not taint the exercise of its otherwise unreviewable\ndiscretion over the merits of the motion, we conclude that the\nBoard committed legal error in denying his request for relief.\nOn that basis, we grant Fuller’s petition for review and remand\nto the Board for further proceedings.\n\n\n1\n We recognize that when the Board acts in response to a litigant’s request,\nit is not acting sua sponte. See Shah v. Holder, 736 F.3d 1125, 1126 (7th Cir.\n2013). We shall nonetheless refer to the Board’s authority to reopen a\nproceeding sua sponte in order to distinguish that power from the Board’s\ndistinct authority to entertain a one-time motion to reopen filed within 90\ndays of final agency action. Compare 8 C.F.R. § 1003.2(c)(2) with id.\n§ 1003.2(a).\n\nNo. 17-3176 3\n\n I.\n Our summary of the facts may be somewhat abbreviated,\nas this is the fourth time that Fuller’s case has come before us.\nWe refer the reader to our two prior published decisions for\nadditional background. See Fuller v. Lynch, 833 F.3d 866 (7th\nCir. 2016) (“Fuller I”); Fuller v. Sessions, 879 F.3d 265 (7th Cir.\n2018) (“Fuller II”).\n Fuller entered the country legally on a fiancé visa in 1999\nand married an American citizen the following year. In 2004,\nhe pleaded guilty to attempted criminal sexual assault and an\nIllinois court ordered him to serve a term of 30 months’\nprobation. After he later violated the terms of his probation,\nFuller was re-sentenced to a prison term of four years.\n Following Fuller’s release from prison in 2014, the Depart-\nment of Homeland Security (“DHS”) initiated removal\nproceedings against him. The government charged, and the\nBoard would later agree, that Fuller was removable from the\nUnited States pursuant to 8 U.S.C. § 1227(a)(1)(D)(i) because he\nhad lost his conditional permanent resident status. (In 2004,\nFuller and his wife, whom he divorced the following year,\nfailed to appear for a mandatory interview with immigration\nofficials, triggering the revocation of his conditional residency\nstatus.)2 And because, as the Board would also agree, Fuller’s\nconviction for attempted criminal sexual assault constituted a\n\n\n2\n The government alleged that Fuller was removable on other grounds, but\nthe Board found it unnecessary to reach these other grounds. Fuller does\nnot contest that he is removable on the ground that he lost his status as a\nconditional permanent resident of the United States.\n\n4 No. 17-3176\n\n“particularly serious crime,” he was disqualified from seeking\nwithholding of removal under both the Immigration and\nNationality Act and the CAT. See 8 U.S.C. § 1231(b)(3)(B)(ii).\n Fuller instead sought deferral of his removal under the\nCAT, alleging that he was likely to be tortured as a bisexual\nwere he returned to Jamaica. See 8 C.F.R. §§ 208.16(c)(4),\n208.17(a).3 In a hearing before the Immigration Judge (“IJ”),\nFuller testified to a history of sexual relationships with both\nmen and women beginning in his preteen years and continuing\nthrough his (by then dissolved) marriage to a U.S. citizen.\nFuller also recounted a number of incidents in Jamaica in\nwhich he was physically and verbally attacked by those who\nperceived him to be gay; one of these incidents involved a\nshooting by a homophobic mob in the gay-friendly resort town\nof Ocho Rios. Fuller further indicated that his sisters had\ndisowned him for his sexual orientation. In addition to his\ntestimony, Fuller presented the IJ with seven letters from his\nchildren and friends, attesting to both his bisexuality and to the\nviolence he had experienced in Jamaica on account of his\nsexual orientation.\n The IJ found that Fuller’s testimony was not credible; and\nbecause she disbelieved his testimony and also questioned the\nveracity of the letters he had submitted, the IJ concluded that\n\n\n3\n For purposes of the CAT, torture is defined to include “any act by which\nsevere pain or suffering, whether physical or mental, is intentionally\ninflicted on a person … for any reason based on discrimination of any kind,\nwhen such pain or suffering is inflicted by or at the instigation of or with\nthe consent or acquiescence of a public official or other person acting in an\nofficial capacity.” 8 C.F.R. § 208.18(a)(1).\n\nNo. 17-3176 5\n\nFuller had not established that he is bisexual and as such faces\na likelihood of torture if he is forced to return to Jamaica. She\nconsequently denied his request for relief under the CAT. A.R.\n181–202. In finding that Fuller’s testimony was not credible, the\nIJ cited discrepancies both as to certain basic facts (including\nthe number and names of sisters, as well as confusing his sister\nwith his mother in his testimony) and as to the details of the\nprior instances of violence he allegedly had experienced in\nJamaica (including a ten-year discrepancy as to the timing of\nthe Ocho Rios shooting and which of his former boyfriends\nwas present at the incident, as recounted in his written state-\nment versus his subsequent testimony in court). As for the\nsupporting letters from Fuller’s friends, the IJ noted that none\nof the authors were available to testify although two of them\nwere former boyfriends who lived in the United States. The\nletters also diverged in certain respects from Fuller’s testi-\nmony: one letter suggested that Fuller had been shot on\nmultiple occasions in Jamaica, whereas Fuller had only\ndescribed one shooting. And all of the letters contained the\nsame centered, dotted signature line, which caused the IJ to\ndoubt their provenance. A.R. 192–96. The IJ summarized:\n [Fuller’s] credibility is seriously lacking in this case.\n He is unable to recall many of the most important\n details of the events that he claims … had an impact\n on his life, particularly with respect to his claim of\n being bisexual. He has failed to provide the Court\n with many documents that could have clarified\n many of these inconsistencies, such as medical\n records, police reports, corroborating letters of\n support or witnesses. The letters that he has pre-\n\n6 No. 17-3176\n\n sented to the Court are given very little weight\n because the Court is unable to verify their authentic-\n ity and has not had an opportunity to cross-examine\n or to even hear testimony from any of the makers of\n these statements. The respondent has given very\n little corroborative evidence to evaluate his claim\n that he is in fact bisexual and that he was in fact\n harmed in Jamaica on account of his sexual orienta-\n tion in the past.\nA.R. 195.\n In 2015, the Board affirmed the denial of CAT relief to\nFuller based on the IJ’s adverse credibility findings. A.R. 61–62.\n“[Fuller] has shown no clear error in the Immigration Judge’s\ndetailed findings of fact, to include the findings that the\nrespondent did not credibly testify and did not establish that\nhe has ever been bisexual. The respondent’s inconsistent\nstatements and implausible explanations fully support an\nadverse credibility determination.” A.R. 62 (internal record\ncitation omitted).\n Fuller then appealed to this court, but we denied his\npetition for review in a divided opinion. Fuller I, 833 F.3d 866.\nWe concluded in relevant part that the IJ’s adverse credibility\ndetermination, as affirmed by the Board, was supported by\nsubstantial evidence. Id. at 871–72. Although we acknowledged\nthat some of the IJ’s stated reasons for disbelieving Fuller were\noff the mark (including, for example, the citation of his mar-\nriage to a woman and multiple other prior heterosexual\nrelationships as a reason to think he was not bisexual), others\nwere sound. The latter included the discrepancies between his\n\nNo. 17-3176 7\n\nwritten statement and his oral testimony as to when the Ocho\nRios shooting had occurred, his confusion as to the number\nand names of his sisters (and mixing up his mother with his\nsister), and a material lie he had told government officials in\n2001 in seeking permission to visit Jamaica. We were satisfied\nthat the IJ’s adverse credibility finding was amply supported\nin these respects. Id. We added that if Fuller were able to gather\nnew evidence demonstrating that the IJ was mistaken as to his\nsexual orientation, he could ask the IJ to sua sponte reopen the\nproceeding. Id. at 872. The dissent, unpersuaded that these\ndiscrepancies cast doubt on Fuller’s claims that he was bisexual\nand had suffered violence as a result, contended that the\npetition for review should have been granted. Id. at 872–74.\n In January 2017, Fuller filed a motion asking the Board to\nreconsider and/or reopen the proceedings. A.R. 48–54. The\nprincipal contention that Fuller advanced in his motion was\nthat the IJ had erred in rejecting his representation that he is\nbisexual and as such faces likely persecution and torture upon\nhis return to Jamaica. Among other points, Fuller argued that\nhe had testified without contradiction that he is bisexual and\nhas been rejected by his family members because of his sexual\norientation; that given the hostility and violence bisexual\nindividuals experience in Jamaica, he would have no reason to\nfalsely characterize himself as bisexual; that for the same\nreasons, it was difficult for him to locate gay or bisexual\nJamaicans who would put themselves at risk by giving\ntestimony that would confirm his bisexuality; that the inconsis-\ntencies and mistakes in his testimony before the IJ were due to\nhis fear of being returned to Jamaica; and that the IJ’s rationale\nfor discrediting his testimony betrayed her own misunder-\n\n8 No. 17-3176\n\nstandings about bisexuality. A.R. 50–52, 54. Fuller added that\nhe had been able to obtain affidavits—actually, letters—from\nindividuals who supported his claim that had not been\navailable to him previously. A.R. 53.\n The Board denied Fuller’s motion in February 2017. A.R. 43.\nThe Board noted both that the motion was untimely and that,\nalthough Fuller referenced new affidavits that were unavail-\nable to him previously, “he has not submitted such evidence\nwith the motion, nor has he shown that a different outcome\nmay be warranted based on the new evidence.” A.R. 43.\n On receipt of the Board’s order denying his motion, Fuller\nfiled what he styled as a “Statement of Notice to Appeal\n(motion to reopen).” A.R. 22. In that statement, Fuller chal-\nlenged the Board’s declaration that he had not submitted the\nnew evidence referred to in his motion to reopen, observing,\n“The new evidence was the cornerstone of my motion so there\nis no way that it would not be sent in with the motion. I think\nthat this was a clerical mishap that caused this and I am now\nmaking sure the new pieces of evidence are included.” A.R. 22.\nFuller went on to summarize briefly his basis for asking the\nBoard to reopen his removal proceeding (and on what grounds\nhe was seeking deferral of removal), and concluded his\nstatement with the following: “I have new evidence to submit\nto the court to help to prove my case. I pray that I will be given\nthe chance to prove my credibility in court with the help of the\nnew evidence, and garner a positive outcome to my situation.”\nA.R. 22. He attached to the statement copies of the three letters\nreferred to in his prior motion to reconsider and/or reopen.\n\nNo. 17-3176 9\n\n The Board treated Fuller’s “statement” as a second motion\nto reopen, and denied that motion. A.R. 3–4. The Board noted\nin the first instance that the motion was barred in both number\nand untimeliness, and that Fuller had not identified any\napplicable exception to those limits. Nor, in the Board’s view,\nhad Fuller demonstrated that the circumstances of his case\nwere so exceptional as to warrant the exercise of the Board’s\nauthority to sua sponte reopen the proceedings. A.R. 3. The\nBoard explained:\n Even accepting [Fuller’s] argument that he previ-\n ously submitted his proffered letters of support, we\n find no basis on which to alter our October 27, 2015\n dismissal of his appeal or our previous denial of his\n motion to reopen. [Fuller’s] motion does not chal-\n lenge our conclusions regarding his credibility or his\n eligibility for deferral of removal, and we do not\n find that his letters of support would materially alter\n these findings. …\nA.R. 3 (internal record citations omitted).\n Fuller then filed the instant petition for review of the\nBoard’s order, along with a request that we stay his removal\npending resolution of the merits of his petition. After first\ndenying Fuller a stay, see Fuller II, 879 F.3d 265, we ultimately\nagreed to stay his removal and appointed counsel to represent\nhim. With the benefit of briefing and argument, we now\nproceed to the merits of Fuller’s petition for review.\n\n10 No. 17-3176\n\n II.\n We begin by addressing the limits of our jurisdiction. With\nexceptions not applicable here, a petitioner is limited to one\nmotion to reopen filed within 90 days of the Board’s final\nadministrative decision. See 8 U.S.C. § 1229a(c)(7)(A) & (C)(i);\n8 C.F.R. § 1003.2(c)(2). Fuller sought reopening long after the\n90-day time limit had expired and, consequently, his only\nrecourse was to ask the Board to exercise its authority to\nreopen the removal proceeding sua sponte, see 8 C.F.R.\n§ 1003.2(a) (“The Board may at any time reopen on its own\nmotion any case in which it has rendered a decision.”), a power\nthe Board has said it will reserve for “exceptional situations,”\nIn re J– J–, 21 I. & N. Dec. 976, 984 (B.I.A. 1997); see also In re\nG– D–, 22 I. & N. Dec. 1132, 1133–34 (B.I.A. 1999). Because the\ngoverning regulation permits but does not require the Board\nto exercise this power and there is no law defining what\nsituations will qualify as “exceptional,” there is no meaningful\nstandard by which to evaluate the exercise of the Board’s\ndiscretion, and consequently the merits of the Board’s decision\nto deny a motion to reopen sua sponte are unreviewable. Anaya-\nAguilar v. Holder, 683 F.3d 369, 372 (7th Cir. 2012) (“Anaya-\nAguilar I”) (collecting cases); see also Fuller II, 879 F.3d at 268.\nBut we do possess the authority to recognize and address\nconstitutional transgressions and other legal errors that the\nBoard may have committed in disposing of such a motion, see\n8 U.S.C. § 1252(a)(2)(D); Fuller II, 879 F.3d at 268; Zambrano-\nReyes v. Holder, 725 F.3d 744, 751 (7th Cir. 2013); Anaya-Aguilar\nv. Holder, 697 F.3d 1189, 1190 (7th Cir. 2012) (clarifying Anaya-\nAguilar I on denial of rehearing), including whether Board’s\nstated rationale for denying such a motion indicates that it\n\nNo. 17-3176 11\n\nignored evidence that the alien tendered in support of his\nrequest, Fuller II, 879 F.3d at 268 (citing Joseph v. Lynch, 793 F.3d\n739, 741–42 (7th Cir. 2015)). Contrary to the government’s\nargument, the REAL ID Act of 2005, which stripped us of the\nauthority to review various discretionary decisions of the\nBoard, did not alter our ability to address such legal errors. See\n§ 1252(a)(2)(D); Cevilla v. Gonzales, 446 F.3d 658, 660 (7th Cir.\n2006).4\n Fuller charges the Board with two legal errors in disposing\nof his motion to reopen. He contends first that the Board\nmisapprehended the thrust of his motion to reopen and the\nsignificance of the additional letters of support he submitted in\nsupport of the motion. The Board understood Fuller not to be\nchallenging its conclusions as to his credibility or his eligibility\nfor deferral of removal. But that understanding cannot be\nsquared with the substance of his motion, which was a direct\nchallenge to these conclusions, Fuller argues. Fuller also\ncontends that the Board’s summary rejection of his new\nevidence as “insufficient to materially alter” its adverse\nfindings was so perfunctory as to preclude confirmation that\nthe Board gave meaningful consideration to his evidence.\n\n\n4\n At oral argument, the government’s counsel suggested that because Fuller\nis seeking reopening in order to renew his request for relief under the CAT,\nand because a denial of relief under the CAT itself is reviewable by this\ncourt, see Teneng v. Holder, 602 F. App’x 340, 347 (7th Cir. 2015) (non-\nprecedential decision); Wani Site v. Holder, 656 F.3d 590, 593 (7th Cir. 2011),\nsection 1252(a)(2)(D) does not apply to the Board’s refusal to exercise its\nauthority to sua sponte reopen the proceedings. Because that contention was\nnot raised in the government’s brief, we deem it waived. E.g., Pope v. Perdue,\n889 F.3d 410, 417 n.4 (7th Cir. 2018).\n\n12 No. 17-3176\n\nBecause we agree with Fuller that the Board mischaracterized\nthe basis for his motion, and because we can have no confi-\ndence that its error did not taint the exercise of its discretion as\nto the merits of the motion, we will remand the matter to the\nBoard on that basis, without deciding whether the Board,\nabsent that error, was obligated to say more than it did in\ndenying Fuller’s request that it reopen the removal proceeding\nsua sponte.\n We should note at the outset that we regard Fuller’s\n“Statement of Notice to Appeal (motion to reopen),” which the\nBoard treated as a second motion to reopen sua sponte, simply\nas an effort to supplement the record with the three new letters\nof support that were somehow missing from Fuller’s prior\nmotion. The “Statement,” as we read it, did not purport to\nmake any new arguments in favor of reopening or even to\naddress the Board’s rationale in denying his prior motion,\nbeyond tendering the letters that the Board had said were\nmissing from Fuller’s prior submission. Certainly it was within\nthe Board’s authority to characterize Fuller’s “Statement” as a\nsecond motion to reopen; we do not mean to suggest other-\nwise. But, in determining whether the Board committed any\nlegal error, we shall evaluate the Board’s order disposing of\nthat second motion in light of the arguments Fuller advanced\nboth in his “Statement” and in his first motion to reopen, which\nwere of one piece.\n The Board said in its order that Fuller was not challenging\nits prior conclusions regarding his credibility or his eligibility\nfor deferral of removal; but that declaration cannot be recon-\nciled with either the letter or the spirit of Fuller’s request for\nrelief. Nowhere in either his motion to reopen or in his follow-\n\nNo. 17-3176 13\n\nup “Statement” did Fuller purport to forgo a challenge to the\nIJ’s finding (as sustained by the Board) that he was not credible\nas to his sexual orientation and history of persecution in\nJamaica and that, consequently, he could not claim eligibility\nfor deferral of removal under the CAT as a bisexual who was\nlikely to be tortured. Indeed, considering that the Board’s 2015\norder had deemed Fuller ineligible for deferral of removal on\nthe strength of the IJ’s finding that he was not credible as to his\npurported sexual orientation, it would be surprising if Fuller’s\nmotion did not challenge the Board’s conclusions as to his\ncredibility and, in turn, his eligibility for deferral of removal. It\nis true that Fuller made statements in his motion to reopen to\nthe effect that the IJ’s adverse credibility determination “cannot\nand does not preclude him from being a bisexual” and “does\nnot change the fact that [t]he Respondent is bisexual.” A.R. 51.\nBut such statements cannot reasonably be construed as\naccepting, even for the sake of argument, the IJ’s credibility\nfinding. The entire thrust of the motion to reopen was that\nFuller is, in fact, bisexual and has in fact, experienced violence\nin Jamaica as a result of his sexual orientation; that the IJ’s\nrationale in discrediting him on these points was suspect; and\nthat the new letters of support tendered in support of his\nrequest to reopen would eliminate any doubt as to the likeli-\nhood that he will be tortured if forced to return to Jamaica. If\nFuller did not say so expressly, it was nonetheless clear from\nthe substance of his arguments that he meant to challenge the\nadverse credibility determination and the resulting finding that\nhe had no basis on which to seek deferral of removal. See A.R.\n51 (“The pertinent facts should be that [Fuller] testified without\ncontradiction that he [is] bisexual, [and] he was rejected by his\n\n14 No. 17-3176\n\nfamily because of this.”); A.R. 54 (“The Immigration Judge’s\nassertion that [Fuller] was not in danger if removed to Jamaica\nis clearly a decision made with the lack of in-depth investiga-\ntion by the fact-finders in this case.”). And, indeed, Fuller\nultimately did say this expressly in his “Statement”: “I have\nnew evidence to submit to the court to help to prove my case.\nI pray that I will be given the chance to prove my credibility in\ncourt with the help of the new evidence … .” A.R. 22.\n So the Board’s understanding of Fuller’s motion to\nreopen—and of what challenges he was purportedly forgo-\ning—was erroneous. And to the extent that misunderstanding\nnecessarily affected how the Board exercised its discretion as\nto the merits of his motion, it amounts to a legal error that\nentitles him to relief. We have repeatedly said that the Board\ncommits a legal error within our jurisdiction to address when\nit ignores, misapplies, or fails to meaningfully consider the\nevidence an alien has submitted in support of his motion to\nreopen sua sponte. See Arej v. Sessions, 852 F.3d 665, 667 (7th Cir.\n2017); Ni v. Holder, 715 F.3d 620, 630 (7th Cir. 2013); Moosa v.\nHolder, 644 F.3d 380, 386 (7th Cir. 2011). Contrary to the\ngovernment’s suggestion, our ability to recognize such an error\nis not dependent on the particular reasons why an alien is\nasking the Board to exercise its sua sponte authority, be it a\nsubsequent change in the law, see In re G– D–, supra, 22 I. & N.\nDec. at 1135, or (as here) the availability of new evidence\nsupporting the alien’s claim for relief. When the Board\nmischaracterizes the evidence tendered or misapprehends the\npurpose for which it is offered, it has not complied with its\nduty to recognize and consider the basis on which the alien has\n\nNo. 17-3176 15\n\nasked the Board to exercise its regulatory authority to reopen\nthe proceedings sua sponte. See Arej, 852 F.3d at 667.\n We acknowledge that the Board, after stating that Fuller\nwas not challenging its findings as to his credibility and\neligibility for deferral of removal, added that “we do not find\nthat his letters of support would materially alter these find-\nings,”(A.R. 3); but that addition does not convince us that we\nshould deny Fuller’s petition for review. Having misappre-\nhended or mischaracterized what findings Fuller was or was\nnot challenging in his motion to reopen, we cannot be confi-\ndent that the Board’s additional half-sentence as to the import\nof Fuller’s new evidence represents an independent and well-\nconsidered alternative ground for the Board’s judgment. We\nmight have more assurance in that regard had the Board said\nsomething more about the letters of support and why the\nBoard did not think they would materially alter its assessment\nof whether he is entitled to deferral of removal. But the Board’s\nfailure to elaborate on this point leaves us with no assurance\nthat the Board’s exercise of discretion was unaffected by its\nerror in appreciating the purpose of Fuller’s new evidence. To\nbe clear, our point is not that the Board must say enough to\nconvince us that the Board exercised its discretion “correctly”\non Fuller’s motion to reopen; the merits of its ruling are of\ncourse beyond the limited scope of our review. But in the\nimmediate wake of a grave mischaracterization of the basis for\nFuller’s motion, the Board’s additional boilerplate observation\nthat Fuller’s new letters would not materially alter its prior\nadverse findings cannot eradicate doubt as to whether the\nBoard actually considered Fuller’s evidence and understood\nwhat he was arguing based on that evidence. Wholly apart\n\n16 No. 17-3176\n\nfrom the question of how much the Board was obligated in the\nfirst instance to say in disposing of Fuller’s motion, the glaring\nerror in what it did say suggests it may never have given\nmeaningful consideration to Fuller’s evidence. The Board’s\norder as written leaves us in the same position we would be if\nits stated rationale indicated that it had altogether ignored the\nevidence and arguments Fuller put before it. See Joseph, 793\nF.3d at 741–42; Kiorkis v. Holder, 634 F.3d 924, 928 (7th Cir.\n2011); Iglesias v. Mukasey, 540 F.3d 528, 531 (7th Cir. 2008).\n The merits of Fuller’s case for the sua sponte reopening of\nhis removal proceeding are for the Board and the Board alone\nto judge. Nothing in our opinion should be construed as a\nsignal that we believe Fuller is entitled to reopening; our views\non that question are, in any event, irrelevant. Suffice it to say\nthat the Board in this case plainly misapprehended the basis for\nFuller’s motion and then dispensed with the merits of the\nmotion in a perfunctory half-sentence, giving us no assurance\nthat it genuinely exercised its discretion as to what Fuller was\nactually arguing. The Board’s legal error compels us to return\nthe matter to the Board for reconsideration.\n III.\n We GRANT the petition for review and REMAND the case\nto the Board for further proceedings consistent with this\nopinion.\n\n17 No. 17‐3176\n[END_CASE]", "role": "user" } ]
4,584,015		Maurice Lewis v. City of Chicago	2019-01-23	17-1510	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before RIPPLE, SYKES, and BARRETT, Circuit Judges.", "parties": "", "opinions": [{"author": "Diane S. Sykes", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-1510\nMAURICE LEWIS,\n Plaintiff-Appellant,\n\n v.\n\nCITY OF CHICAGO, et al.,\n Defendants-Appellees.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 16-CV-7592 — Amy J. St. Eve, Judge.\n ____________________\n\n ARGUED FEBRUARY 6, 2018 — DECIDED JANUARY 23, 2019\n ____________________\n\n\n Before RIPPLE, SYKES, and BARRETT, Circuit Judges.\n SYKES, Circuit Judge. Maurice Lewis spent more than two\nyears in pretrial detention in the Cook County Jail based on\npolice reports falsely implicating him for unlawfully pos-\nsessing a firearm. After the charges against him were\ndropped, Lewis sued the City of Chicago and six police\nofficers under 42 U.S.C. § 1983 seeking damages for violation\n\f2 No. 17-1510\n\nof his rights under the Fourth Amendment and the Due\nProcess Clause of the Fourteenth Amendment.\n The district court dismissed the suit, ruling that both\nclaims were time-barred. Lewis appealed. Twelve days later\nthe Supreme Court decided Manuel v. City of Joliet\n(“Manuel I”), 137 S. Ct. 911, 920 (2017), clarifying that deten-\ntion without probable cause violates the Fourth Amendment\n“when it precedes, but also when it follows, the start of legal\nprocess in a criminal case.” Id. at 918. The Court declined to\ndecide when such claims accrue, instead remanding the case\nto this court to resolve that issue. Id. at 922. In September the\nManuel panel held that a Fourth Amendment claim for\nwrongful pretrial detention accrues on the date the detention\nends. Manuel v. City of Joliet (“Manuel II”), 903 F.3d 667, 670\n(7th Cir. 2018).\n The combined effect of Manuel I and II saves part of\nLewis’s case. Consistent with Manuel I, Lewis pleaded a\nviable Fourth Amendment claim for unlawful pretrial\ndetention. And Manuel II confirms that the claim is timely\nbecause Lewis filed it within two years of his release from\ndetention.\n The due-process claim is another matter. Manuel I makes\nclear that the Fourth Amendment, not the Due Process\nClause, governs a claim for wrongful pretrial detention. To\nthe extent Hurt v. Wise, 880 F.3d 831, 843–44 (7th Cir. 2018),\nholds otherwise, it is incompatible with Manuel I and II and\nis overruled. 1 We therefore reverse the dismissal of the\n\n\n\n1 Because this opinion resolves a conflict in our circuit caselaw, it was\ncirculated to all judges in active service. See 7TH CIR. R. 40(e). None\n\fNo. 17-1510 3\n\nFourth Amendment claim and affirm the dismissal of the\ndue-process claim, though on different grounds.\n I. Background\n On September 12, 2013, Chicago police officers searched\nan apartment on West Walton Street where they encoun-\ntered Lewis and two others. During the search, the officers\ndiscovered a handgun. Lewis alleges that the officers had no\nbasis to believe the gun was his. He claims that he didn’t live\nat the apartment and never told the officers otherwise. He\nfurther alleges that the officers never found anything in the\napartment indicating that he lived there.\n The officers arrested Lewis for illegally possessing the\nfirearm. Lewis claims that the officers prepared police\nreports falsely stating that he “had admitted to residing in\nthe Walton Street Apartment” and that the officers “had\nfound and seized evidence establishing that [Lewis] resided\nin the Walton Street Apartment.”\n The day after Lewis’s arrest, a state-court judge held a\nprobable-cause hearing and found cause to believe that\nLewis illegally possessed the weapon, 720 ILL. COMP. STAT.\n5/24-1.1(a), and violated Illinois’s armed habitual criminal\nstatute, id. § 5/24-1.7(a). The judge ordered Lewis held for\ntrial. Two weeks later a prosecutor amended the charges,\nand a different judge held a probable-cause hearing on the\nnew charges. Officer Abraham Mora testified that the search\nof the apartment uncovered a handgun and two documents\naddressed to Lewis at the Walton Street address. The judge\n\n\nfavored a hearing en banc. Circuit Judge Amy J. St. Eve did not partici-\npate.\n\f4 No. 17-1510\n\nfound probable cause to detain Lewis for trial. He sat in the\nCook County Jail for two years until the charges were\ndropped on September 29, 2015.\n On July 26, 2016, Lewis sued the City and six officers un-\nder § 1983 alleging that he was held in jail pending trial\nbased on falsified evidence, violating his rights under the\nFourth Amendment and the Fourteenth Amendment’s Due\nProcess Clause. He also raised a claim under Illinois law for\nmalicious prosecution.\n The defendants moved to dismiss the complaint under\nRule 12(b)(6) of the Federal Rules of Civil Procedure. The\njudge granted the motion, dismissing the constitutional\nclaims with prejudice after finding them time-barred under\nthe two-year statute of limitations applicable to § 1983 claims\nin Illinois. The judge then relinquished supplemental juris-\ndiction over the state-law claim, dismissing it without\nprejudice.\n II. Discussion\n We review a Rule 12(b)(6) dismissal de novo. Jakupovic v.\nCurran, 850 F.3d 898, 901 (7th Cir. 2017). To survive a motion\nto dismiss, a complaint must contain “factual content that\nallows the court to draw the reasonable inference that the\ndefendant is liable for the misconduct alleged.” Ashcroft v.\nIqbal, 556 U.S. 662, 678 (2009).\nA. Fourth Amendment Claim\n Lewis maintains that he pleaded a viable Fourth\nAmendment claim for unlawful pretrial detention based on\nfalsified evidence. He also argues that the claim is timely.\nUnder Manuel I and II, he is correct on both points.\n\fNo. 17-1510 5\n\n The Fourth Amendment protects “[t]he right of the peo-\nple to be secure in their persons … against unreasonable …\nseizures.” U.S. CONST. amend. IV. A person is “seized”\nwhenever an official “restrains his freedom of movement”\nsuch that he is “not free to leave.” Brendlin v. California,\n551 U.S. 249, 254–55 (2007). “[T]he general rule [is] that\nFourth Amendment seizures are ‘reasonable’ only if based\non probable cause to believe that the individual has commit-\nted a crime.” Bailey v. United States, 568 U.S. 186, 192 (2013)\n(internal quotation marks omitted).\n Lewis alleges that he was detained—that is to say,\n“seized”—in the Cook County Jail for two years based on\nfalsified police reports and that this injury is actionable\nunder § 1983 as a violation of his Fourth Amendment right\nto be free from unreasonable seizure. Our circuit caselaw\nonce foreclosed this theory. See, e.g., Newsome v. McCabe,\n256 F.3d 747, 750 (7th Cir. 2001). Prior to Manuel I, our cases\nheld that “once detention by reason of arrest turns into\ndetention by way of arraignment—once police action gives\nway to legal process—the Fourth Amendment falls out of\nthe picture and the detainee’s claim that the detention is\nimproper becomes a claim of malicious prosecution violative\nof due process.” Llovet v. City of Chicago, 761 F.3d 759, 763\n(7th Cir. 2014).\n The Supreme Court superseded this circuit precedent in\nManuel I. Elijah Manuel was arrested for possession of\nunlawful drugs. After a probable-cause hearing based on\nevidence allegedly fabricated by the police, a local judge\nfound probable cause and sent Manuel to the county jail to\nawait trial. There he sat for 48 days until the prosecutor\ndismissed the charge. Manuel I, 137 S. Ct. at 915–16. He\n\f6 No. 17-1510\n\nsought damages under § 1983 alleging that his pretrial\ndetention violated the Fourth Amendment. The district court\ndismissed the claim based on binding circuit precedent and\nwe affirmed. Id. at 916. The Supreme Court reversed, hold-\ning that Manuel stated a Fourth Amendment claim when he\nsought relief “not merely for his (pre-legal-process) arrest,\nbut also for his (post-legal process) pretrial detention.” Id. at\n919.\n The Court jettisoned the malicious-prosecution analogy\nand the due-process source of the right, instead grounding\nthe claim in long-established Fourth Amendment doctrine:\n The Fourth Amendment prohibits government\n officials from detaining a person in the absence\n of probable cause. That can happen when the\n police hold someone without any reason before\n the formal onset of a criminal proceeding. But\n it can also occur when legal process itself goes\n wrong—when, for example, a judge’s\n probable-cause determination is predicated\n solely on a police officer’s false statements.\n Then, too, a person is confined without consti-\n tutionally adequate justification. Legal process\n has gone forward, but it has done nothing to\n satisfy the Fourth Amendment’s probable-\n cause requirement. And for that reason, it can-\n not extinguish the detainee’s Fourth Amend-\n ment claim—or somehow, as the Seventh\n Circuit has held, convert that claim into one\n founded on the Due Process Clause.\nId. at 918–19 (citations omitted).\n\fNo. 17-1510 7\n\n Manuel I thus clarified that the constitutional injury aris-\ning from a wrongful pretrial detention rests on the funda-\nmental Fourth Amendment principle that a pretrial\ndetention is a “seizure”—both before formal legal process\nand after—and is justified only on probable cause. Id. at 918.\nManuel alleged that his detention was not supported by\nprobable cause because the judge’s order holding him for\ntrial was based only on “police fabrications.” Id. at 919. If\nthat proved to be true, his detention was unreasonable in\nviolation of the Fourth Amendment. Id.\n Put another way, the initiation of formal legal process\n“did not expunge Manuel’s Fourth Amendment claim\nbecause the process he received failed to establish what that\nAmendment makes essential for pretrial detention—\nprobable cause to believe he committed a crime.” Id. at 919–\n20. As we explained in our decision on remand in Manuel II,\na Fourth Amendment claim for wrongful pretrial detention\nis concerned with “the detention rather than the existence of\ncriminal charges.” 903 F.3d at 670.\n Lewis’s allegations are materially indistinguishable from\nManuel’s. He has therefore pleaded a plausible Fourth\nAmendment claim. The officers respond with an assertion of\nqualified immunity. “Qualified immunity attaches when an\nofficial’s conduct does not violate clearly established statuto-\nry or constitutional rights of which a reasonable person\nwould have known.” Kisela v. Hughes, 138 S. Ct. 1148, 1151\n(2018) (per curiam) (quoting White v. Pauly, 137 S. Ct. 548,\n551 (2017) (per curiam)). Qualified immunity requires a two-\npart inquiry: we must determine (1) whether facts alleged or\nshown by a plaintiff make out a violation of a constitutional\nright, and (2) if so, whether that right was clearly established\n\f8 No. 17-1510\n\nat the time of the defendant’s alleged misconduct. Pearson v.\nCallahan, 555 U.S. 223, 232 (2009).\n It has been clear since at least Franks v. Delaware, 438 U.S.\n154 (1978), that falsifying the factual basis for a judicial\nprobable-cause determination violates the Fourth Amend-\nment. A judicial determination of probable cause is normally\nentitled to a presumption of validity, but\n this presumption is premised on an “assump-\n tion … that there will be a truthful showing” of\n probable cause. [Franks, 438 U.S.] at 164–65, 98\n S. Ct. 2674 (emphasis in original). Accordingly,\n the presumption may give way on a showing\n that the officer who sought the warrant “know-\n ingly or intentionally or with a reckless disre-\n gard for the truth, made false statements to the\n judicial officer, and that the false statements\n were necessary to the judicial officer’s deter-\n mination that probable cause existed for the ar-\n rest.” Beauchamp v. City of Noblesville, Ind.,\n 320 F.3d 733, 742–43 (7th Cir. 2003) (citing\n Franks, 438 U.S. at 155–56, 98 S. Ct. 2674).\nWhitlock v. Brown, 596 F.3d 406, 410 (7th Cir. 2010) (omission\nin original) (alterations omitted).\n Lewis alleges that the officers falsely asserted, both in\ntheir police reports and in testimony at the probable-cause\nhearing, that he admitted residing at the apartment where\nthe gun was found and that they found evidence showing\nthat he lived there. Accepting these allegations as true, as we\nmust at this stage, no reasonable officer could have thought\nthis conduct was constitutionally permissible. It makes no\n\fNo. 17-1510 9\n\ndifference that our circuit caselaw situated the constitutional\nviolation in the Due Process Clause rather than the Fourth\nAmendment.\n The question remains whether the claim is timely. A\n§ 1983 claim borrows the statute of limitations for analogous\npersonal-injury claims in the forum state; in Illinois that\nperiod is two years. 735 ILL. COMP. STAT. 5/13-202; Wallace v.\nKato, 549 U.S. 384, 388–89 (2007). But federal law determines\nwhen the claim accrues. Wallace, 549 U.S. at 388–89.\n Manuel II addressed the accrual question the Supreme\nCourt remanded in Manuel I, holding that a Fourth Amend-\nment claim for wrongful pretrial detention accrues when the\ndetention ceases. 903 F.3d at 669. Two considerations sup-\nported this conclusion. First, because the constitutional\nviolation is “ongoing” rather than “discrete,” the claim\naccrues when the ongoing violation ends. Id. Second, “a\nclaim cannot accrue until the would-be plaintiff is entitled to\nsue, yet the existence of detention forbids a suit for damages\ncontesting that detention’s validity.” Id. at 670 (citing Preiser\nv. Rodriguez, 411 U.S. 475 (1973), and Heck v. Humphrey,\n512 U.S. 477 (1994)).\n Under Manuel II, Lewis’s Fourth Amendment claim is\ntimely. Lewis remained in jail until the charges against him\nwere dropped on September 29, 2015. He filed this § 1983\nsuit less than a year later on July 26, 2016, well within the\ntwo-year statute of limitations. 2 He is entitled to move\nforward on his Fourth Amendment claim.\n\n2 We note that the Supreme Court has granted certiorari to resolve a\ncircuit split on the claim-accrual question reserved in Manuel I. See\nMcDonough v. Smith, No. 18-485, 2019 WL 166879 (Mem.) (Jan. 11, 2019).\n\f10 No. 17-1510\n\nB. Due-Process Claim\n Lewis argues that this same misconduct by law enforce-\nment—falsifying the police reports that led to his pretrial\ndetention—also violated his right to due process, giving rise\nto an additional constitutional claim under § 1983. Manuel I\nholds otherwise, as does our decision on remand in\nManuel II.\n To reiterate, Manuel I explained that “[i]f the complaint is\nthat a form of legal process resulted in pretrial detention\nunsupported by probable cause, then the right allegedly\ninfringed lies in the Fourth Amendment.” 137 S. Ct. at 919.\nAs we’ve noted above, Manuel I clarified that the initiation of\nformal legal process “cannot extinguish the detainee’s\nFourth Amendment claim—or somehow, as the Seventh Circuit\nhas held, convert that claim into one founded on the Due Process\nClause.” Id. at 918–19 (emphasis added). It’s now clear that a\n§ 1983 claim for unlawful pretrial detention rests exclusively\non the Fourth Amendment.\n Lewis relies on Hurt v. Wise as support for his position\nthat pretrial detention based on fabricated evidence violates\nrights secured by two constitutional provisions—the Fourth\nAmendment and the Due Process Clause of the Fourteenth—\nand is actionable under § 1983 as two separate constitutional\nclaims. Hurt conflicts with Manuel I and II, so we take this\nopportunity to clear up the conflict.\n In Hurt the police arrested three siblings for their sus-\npected roles in the death of their uncle. “But one by one,\neach was absolved”: one sibling was never criminally\ncharged, the next saw the charges against her dropped after\nfour months in jail, and the third was acquitted at trial after\n\fNo. 17-1510 11\n\neight months in jail. Hurt, 880 F.3d at 835. The three siblings\nsued the officers accusing them of fabricating evidence—\nincluding confessions—and seeking relief under § 1983 and\nIllinois law. Id. The officers moved for summary judgment\nbased on qualified immunity. The district court denied the\nmotion, id. at 839, and we mostly affirmed.\n As relevant here, Hurt first rejected the officers’ qualified-\nimmunity defense on the Fourth Amendment claim, con-\ncluding that in light of the evidence in the summary-\njudgment record, a reasonable trier of fact could find that the\nplaintiffs “were arrested without even arguable probable\ncause[] and thus in violation of the Fourth Amendment.” Id.\nat 843 (citing Manuel I, 137 S. Ct. at 918–19).\n Two of the Hurt plaintiffs—the two that were held in jail\npending trial—argued that the same police misconduct\nsupported an additional claim for violation of their right to\ndue process, relying on the malicious-prosecution/due-\nprocess theory embedded in our circuit caselaw. See, e.g.,\nJulian v. Hanna, 732 F.3d 842 (7th Cir. 2013); Newsome,\n256 F.3d 747. Hurt determined that Manuel I had not dis-\nturbed the general rule of the Newsome line of cases: while\nthere is “no free-standing constitutional tort of malicious\nprosecution,” other constitutional rights protect people\nagainst “abusive arrests [and] fabrication of evidence.”\n880 F.3d at 843. What mattered was that the plaintiffs had\n“identified the constitutional right at issue”—the Due\nProcess Clause, which “forbids the [S]tate from depriving a\nperson of liberty (including by pre-trial detention) based on\nmanufactured evidence.” Id.\n But in Manuel II—decided nine months after Hurt—we\nexplained that all § 1983 claims for wrongful pretrial deten-\n\f12 No. 17-1510\n\ntion—whether based on fabricated evidence or some other\ndefect—sound in the Fourth Amendment. Like the plaintiffs\nin Hurt, Manuel relied on the tort of malicious prosecution\nas an analogy. 903 F.3d at 669. We explained that while this\n“might have seemed sensible before the Supreme Court\nspoke,” after Manuel I it is the “wrong characterization”;\nindeed, “the Justices deprecated the analogy to malicious\nprosecution.” Id. at 669–70 (citing Manuel I, 137 S. Ct. at 917–\n20). Instead, the constitutional right in question is the “right\nnot to be held in custody without probable cause,” the\nviolation of which gives rise to a “plain-vanilla Fourth\nAmendment” claim under § 1983 because the essential\nconstitutional wrong is the “absence of probable cause that\nwould justify the detention.” Id. at 670 (citing Manuel I,\n137 S. Ct. at 917–20). In other words, the Fourth Amend-\nment, not the Due Process Clause, is the source of the right\nin a § 1983 claim for unlawful pretrial detention, whether\nbefore or after the initiation of formal legal process.\n We overrule precedent only in limited circumstances; a\nclear intracircuit conflict is one of them. Glaser v. Wound Care\nConsultants, Inc., 570 F.3d 907, 915–16 (7th Cir. 2009).\nManuel II and Hurt cannot be reconciled. Indeed, Hurt is\nhard to square with Manuel I. The Supreme Court held that\nthe initiation of formal legal process following an arrest does\nnot convert a Fourth Amendment unreasonable-seizure\nclaim “into one founded on the Due Process Clause.”\n137 S. Ct. at 919. The injury of wrongful pretrial detention\nmay be remedied under § 1983 as a violation of the Fourth\nAmendment, not the Due Process Clause. To the extent Hurt\nholds otherwise, it is overruled.\n\fNo. 17-1510 13\n\n We close by noting the important point that a claim for\nwrongful pretrial detention based on fabricated evidence is\ndistinct from a claim for wrongful conviction based on fabri-\ncated evidence: “[C]onvictions premised on deliberately\nfabricated evidence will always violate the defendant’s right\nto due process.” Avery v. City of Milwaukee, 847 F.3d 433, 439\n(7th Cir. 2017) (emphasis added); see also Mooney v. Holohan,\n294 U.S. 103, 112 (1935) (explaining that the use of perjured\ntestimony “to procure the conviction and imprisonment of a\ndefendant is as inconsistent with the rudimentary demands\nof justice as is the obtaining of a like result by intimidation”);\nWhitlock v. Brueggemann, 682 F.3d 567, 580 (7th Cir. 2012).\nMoreover, misconduct of this type that results in a convic-\ntion might also violate the accused’s right to due process\nunder the rubric of Brady v. Maryland, 373 U.S. 83 (1963), and\nKyles v. Whitley, 514 U.S. 419 (1995), if government officials\nsuppressed evidence of the fabrication. Avery, 847 F.3d at\n443–44. We reiterate that we deal here only with a claim of\nwrongful pretrial detention, not a claim of wrongful convic-\ntion.\n * * *\n Applying Manuel I and II, we hold that Lewis timely filed\na viable Fourth Amendment claim for wrongful pretrial\ndetention. We therefore reverse the dismissal of that claim\nand remand for further proceedings. Under Manuel I and II,\nthe Due Process Clause does not apply, so the judgment is\notherwise affirmed.\n AFFIRMED in part and REVERSED AND REMANDED in part.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4361268/", "author_raw": "Diane S. Sykes"}]}	RIPPLE	SYKES	BARRETT	1		{"RIPPLE": ", Circuit", "SYKES": ", Circuit", "BARRETT": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4584015/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Maurice Lewis v. City of Chicago\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-23\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-1510\nMAURICE LEWIS,\n Plaintiff-Appellant,\n\n v.\n\nCITY OF CHICAGO, et al.,\n Defendants-Appellees.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 16-CV-7592 — Amy J. St. Eve, Judge.\n ____________________\n\n ARGUED FEBRUARY 6, 2018 — DECIDED JANUARY 23, 2019\n ____________________\n\n\n Before RIPPLE, SYKES, and BARRETT, Circuit Judges.\n SYKES, Circuit Judge. Maurice Lewis spent more than two\nyears in pretrial detention in the Cook County Jail based on\npolice reports falsely implicating him for unlawfully pos-\nsessing a firearm. After the charges against him were\ndropped, Lewis sued the City of Chicago and six police\nofficers under 42 U.S.C. § 1983 seeking damages for violation\n\f2 No. 17-1510\n\nof his rights under the Fourth Amendment and the Due\nProcess Clause of the Fourteenth Amendment.\n The district court dismissed the suit, ruling that both\nclaims were time-barred. Lewis appealed. Twelve days later\nthe Supreme Court decided Manuel v. City of Joliet\n(“Manuel I”), 137 S. Ct. 911, 920 (2017), clarifying that deten-\ntion without probable cause violates the Fourth Amendment\n“when it precedes, but also when it follows, the start of legal\nprocess in a criminal case.” Id. at 918. The Court declined to\ndecide when such claims accrue, instead remanding the case\nto this court to resolve that issue. Id. at 922. In September the\nManuel panel held that a Fourth Amendment claim for\nwrongful pretrial detention accrues on the date the detention\nends. Manuel v. City of Joliet (“Manuel II”), 903 F.3d 667, 670\n(7th Cir. 2018).\n The combined effect of Manuel I and II saves part of\nLewis’s case. Consistent with Manuel I, Lewis pleaded a\nviable Fourth Amendment claim for unlawful pretrial\ndetention. And Manuel II confirms that the claim is timely\nbecause Lewis filed it within two years of his release from\ndetention.\n The due-process claim is another matter. Manuel I makes\nclear that the Fourth Amendment, not the Due Process\nClause, governs a claim for wrongful pretrial detention. To\nthe extent Hurt v. Wise, 880 F.3d 831, 843–44 (7th Cir. 2018),\nholds otherwise, it is incompatible with Manuel I and II and\nis overruled. 1 We therefore reverse the dismissal of the\n\n\n\n1 Because this opinion resolves a conflict in our circuit caselaw, it was\ncirculated to all judges in active service. See 7TH CIR. R. 40(e). None\n\fNo. 17-1510 3\n\nFourth Amendment claim and affirm the dismissal of the\ndue-process claim, though on different grounds.\n I. Background\n On September 12, 2013, Chicago police officers searched\nan apartment on West Walton Street where they encoun-\ntered Lewis and two others. During the search, the officers\ndiscovered a handgun. Lewis alleges that the officers had no\nbasis to believe the gun was his. He claims that he didn’t live\nat the apartment and never told the officers otherwise. He\nfurther alleges that the officers never found anything in the\napartment indicating that he lived there.\n The officers arrested Lewis for illegally possessing the\nfirearm. Lewis claims that the officers prepared police\nreports falsely stating that he “had admitted to residing in\nthe Walton Street Apartment” and that the officers “had\nfound and seized evidence establishing that [Lewis] resided\nin the Walton Street Apartment.”\n The day after Lewis’s arrest, a state-court judge held a\nprobable-cause hearing and found cause to believe that\nLewis illegally possessed the weapon, 720 ILL. COMP. STAT.\n5/24-1.1(a), and violated Illinois’s armed habitual criminal\nstatute, id. § 5/24-1.7(a). The judge ordered Lewis held for\ntrial. Two weeks later a prosecutor amended the charges,\nand a different judge held a probable-cause hearing on the\nnew charges. Officer Abraham Mora testified that the search\nof the apartment uncovered a handgun and two documents\naddressed to Lewis at the Walton Street address. The judge\n\n\nfavored a hearing en banc. Circuit Judge Amy J. St. Eve did not partici-\npate.\n\f4 No. 17-1510\n\nfound probable cause to detain Lewis for trial. He sat in the\nCook County Jail for two years until the charges were\ndropped on September 29, 2015.\n On July 26, 2016, Lewis sued the City and six officers un-\nder § 1983 alleging that he was held in jail pending trial\nbased on falsified evidence, violating his rights under the\nFourth Amendment and the Fourteenth Amendment’s Due\nProcess Clause. He also raised a claim under Illinois law for\nmalicious prosecution.\n The defendants moved to dismiss the complaint under\nRule 12(b)(6) of the Federal Rules of Civil Procedure. The\njudge granted the motion, dismissing the constitutional\nclaims with prejudice after finding them time-barred under\nthe two-year statute of limitations applicable to § 1983 claims\nin Illinois. The judge then relinquished supplemental juris-\ndiction over the state-law claim, dismissing it without\nprejudice.\n II. Discussion\n We review a Rule 12(b)(6) dismissal de novo. Jakupovic v.\nCurran, 850 F.3d 898, 901 (7th Cir. 2017). To survive a motion\nto dismiss, a complaint must contain “factual content that\nallows the court to draw the reasonable inference that the\ndefendant is liable for the misconduct alleged.” Ashcroft v.\nIqbal, 556 U.S. 662, 678 (2009).\nA. Fourth Amendment Claim\n Lewis maintains that he pleaded a viable Fourth\nAmendment claim for unlawful pretrial detention based on\nfalsified evidence. He also argues that the claim is timely.\nUnder Manuel I and II, he is correct on both points.\n\fNo. 17-1510 5\n\n The Fourth Amendment protects “[t]he right of the peo-\nple to be secure in their persons … against unreasonable …\nseizures.” U.S. CONST. amend. IV. A person is “seized”\nwhenever an official “restrains his freedom of movement”\nsuch that he is “not free to leave.” Brendlin v. California,\n551 U.S. 249, 254–55 (2007). “[T]he general rule [is] that\nFourth Amendment seizures are ‘reasonable’ only if based\non probable cause to believe that the individual has commit-\nted a crime.” Bailey v. United States, 568 U.S. 186, 192 (2013)\n(internal quotation marks omitted).\n Lewis alleges that he was detained—that is to say,\n“seized”—in the Cook County Jail for two years based on\nfalsified police reports and that this injury is actionable\nunder § 1983 as a violation of his Fourth Amendment right\nto be free from unreasonable seizure. Our circuit caselaw\nonce foreclosed this theory. See, e.g., Newsome v. McCabe,\n256 F.3d 747, 750 (7th Cir. 2001). Prior to Manuel I, our cases\nheld that “once detention by reason of arrest turns into\ndetention by way of arraignment—once police action gives\nway to legal process—the Fourth Amendment falls out of\nthe picture and the detainee’s claim that the detention is\nimproper becomes a claim of malicious prosecution violative\nof due process.” Llovet v. City of Chicago, 761 F.3d 759, 763\n(7th Cir. 2014).\n The Supreme Court superseded this circuit precedent in\nManuel I. Elijah Manuel was arrested for possession of\nunlawful drugs. After a probable-cause hearing based on\nevidence allegedly fabricated by the police, a local judge\nfound probable cause and sent Manuel to the county jail to\nawait trial. There he sat for 48 days until the prosecutor\ndismissed the charge. Manuel I, 137 S. Ct. at 915–16. He\n\f6 No. 17-1510\n\nsought damages under § 1983 alleging that his pretrial\ndetention violated the Fourth Amendment. The district court\ndismissed the claim based on binding circuit precedent and\nwe affirmed. Id. at 916. The Supreme Court reversed, hold-\ning that Manuel stated a Fourth Amendment claim when he\nsought relief “not merely for his (pre-legal-process) arrest,\nbut also for his (post-legal process) pretrial detention.” Id. at\n919.\n The Court jettisoned the malicious-prosecution analogy\nand the due-process source of the right, instead grounding\nthe claim in long-established Fourth Amendment doctrine:\n The Fourth Amendment prohibits government\n officials from detaining a person in the absence\n of probable cause. That can happen when the\n police hold someone without any reason before\n the formal onset of a criminal proceeding. But\n it can also occur when legal process itself goes\n wrong—when, for example, a judge’s\n probable-cause determination is predicated\n solely on a police officer’s false statements.\n Then, too, a person is confined without consti-\n tutionally adequate justification. Legal process\n has gone forward, but it has done nothing to\n satisfy the Fourth Amendment’s probable-\n cause requirement. And for that reason, it can-\n not extinguish the detainee’s Fourth Amend-\n ment claim—or somehow, as the Seventh\n Circuit has held, convert that claim into one\n founded on the Due Process Clause.\nId. at 918–19 (citations omitted).\n\fNo. 17-1510 7\n\n Manuel I thus clarified that the constitutional injury aris-\ning from a wrongful pretrial detention rests on the funda-\nmental Fourth Amendment principle that a pretrial\ndetention is a “seizure”—both before formal legal process\nand after—and is justified only on probable cause. Id. at 918.\nManuel alleged that his detention was not supported by\nprobable cause because the judge’s order holding him for\ntrial was based only on “police fabrications.” Id. at 919. If\nthat proved to be true, his detention was unreasonable in\nviolation of the Fourth Amendment. Id.\n Put another way, the initiation of formal legal process\n“did not expunge Manuel’s Fourth Amendment claim\nbecause the process he received failed to establish what that\nAmendment makes essential for pretrial detention—\nprobable cause to believe he committed a crime.” Id. at 919–\n20. As we explained in our decision on remand in Manuel II,\na Fourth Amendment claim for wrongful pretrial detention\nis concerned with “the detention rather than the existence of\ncriminal charges.” 903 F.3d at 670.\n Lewis’s allegations are materially indistinguishable from\nManuel’s. He has therefore pleaded a plausible Fourth\nAmendment claim. The officers respond with an assertion of\nqualified immunity. “Qualified immunity attaches when an\nofficial’s conduct does not violate clearly established statuto-\nry or constitutional rights of which a reasonable person\nwould have known.” Kisela v. Hughes, 138 S. Ct. 1148, 1151\n(2018) (per curiam) (quoting White v. Pauly, 137 S. Ct. 548,\n551 (2017) (per curiam)). Qualified immunity requires a two-\npart inquiry: we must determine (1) whether facts alleged or\nshown by a plaintiff make out a violation of a constitutional\nright, and (2) if so, whether that right was clearly established\n\f8 No. 17-1510\n\nat the time of the defendant’s alleged misconduct. Pearson v.\nCallahan, 555 U.S. 223, 232 (2009).\n It has been clear since at least Franks v. Delaware, 438 U.S.\n154 (1978), that falsifying the factual basis for a judicial\nprobable-cause determination violates the Fourth Amend-\nment. A judicial determination of probable cause is normally\nentitled to a presumption of validity, but\n this presumption is premised on an “assump-\n tion … that there will be a truthful showing” of\n probable cause. [Franks, 438 U.S.] at 164–65, 98\n S. Ct. 2674 (emphasis in original). Accordingly,\n the presumption may give way on a showing\n that the officer who sought the warrant “know-\n ingly or intentionally or with a reckless disre-\n gard for the truth, made false statements to the\n judicial officer, and that the false statements\n were necessary to the judicial officer’s deter-\n mination that probable cause existed for the ar-\n rest.” Beauchamp v. City of Noblesville, Ind.,\n 320 F.3d 733, 742–43 (7th Cir. 2003) (citing\n Franks, 438 U.S. at 155–56, 98 S. Ct. 2674).\nWhitlock v. Brown, 596 F.3d 406, 410 (7th Cir. 2010) (omission\nin original) (alterations omitted).\n Lewis alleges that the officers falsely asserted, both in\ntheir police reports and in testimony at the probable-cause\nhearing, that he admitted residing at the apartment where\nthe gun was found and that they found evidence showing\nthat he lived there. Accepting these allegations as true, as we\nmust at this stage, no reasonable officer could have thought\nthis conduct was constitutionally permissible. It makes no\n\fNo. 17-1510 9\n\ndifference that our circuit caselaw situated the constitutional\nviolation in the Due Process Clause rather than the Fourth\nAmendment.\n The question remains whether the claim is timely. A\n§ 1983 claim borrows the statute of limitations for analogous\npersonal-injury claims in the forum state; in Illinois that\nperiod is two years. 735 ILL. COMP. STAT. 5/13-202; Wallace v.\nKato, 549 U.S. 384, 388–89 (2007). But federal law determines\nwhen the claim accrues. Wallace, 549 U.S. at 388–89.\n Manuel II addressed the accrual question the Supreme\nCourt remanded in Manuel I, holding that a Fourth Amend-\nment claim for wrongful pretrial detention accrues when the\ndetention ceases. 903 F.3d at 669. Two considerations sup-\nported this conclusion. First, because the constitutional\nviolation is “ongoing” rather than “discrete,” the claim\naccrues when the ongoing violation ends. Id. Second, “a\nclaim cannot accrue until the would-be plaintiff is entitled to\nsue, yet the existence of detention forbids a suit for damages\ncontesting that detention’s validity.” Id. at 670 (citing Preiser\nv. Rodriguez, 411 U.S. 475 (1973), and Heck v. Humphrey,\n512 U.S. 477 (1994)).\n Under Manuel II, Lewis’s Fourth Amendment claim is\ntimely. Lewis remained in jail until the charges against him\nwere dropped on September 29, 2015. He filed this § 1983\nsuit less than a year later on July 26, 2016, well within the\ntwo-year statute of limitations. 2 He is entitled to move\nforward on his Fourth Amendment claim.\n\n2 We note that the Supreme Court has granted certiorari to resolve a\ncircuit split on the claim-accrual question reserved in Manuel I. See\nMcDonough v. Smith, No. 18-485, 2019 WL 166879 (Mem.) (Jan. 11, 2019).\n\f10 No. 17-1510\n\nB. Due-Process Claim\n Lewis argues that this same misconduct by law enforce-\nment—falsifying the police reports that led to his pretrial\ndetention—also violated his right to due process, giving rise\nto an additional constitutional claim under § 1983. Manuel I\nholds otherwise, as does our decision on remand in\nManuel II.\n To reiterate, Manuel I explained that “[i]f the complaint is\nthat a form of legal process resulted in pretrial detention\nunsupported by probable cause, then the right allegedly\ninfringed lies in the Fourth Amendment.” 137 S. Ct. at 919.\nAs we’ve noted above, Manuel I clarified that the initiation of\nformal legal process “cannot extinguish the detainee’s\nFourth Amendment claim—or somehow, as the Seventh Circuit\nhas held, convert that claim into one founded on the Due Process\nClause.” Id. at 918–19 (emphasis added). It’s now clear that a\n§ 1983 claim for unlawful pretrial detention rests exclusively\non the Fourth Amendment.\n Lewis relies on Hurt v. Wise as support for his position\nthat pretrial detention based on fabricated evidence violates\nrights secured by two constitutional provisions—the Fourth\nAmendment and the Due Process Clause of the Fourteenth—\nand is actionable under § 1983 as two separate constitutional\nclaims. Hurt conflicts with Manuel I and II, so we take this\nopportunity to clear up the conflict.\n In Hurt the police arrested three siblings for their sus-\npected roles in the death of their uncle. “But one by one,\neach was absolved”: one sibling was never criminally\ncharged, the next saw the charges against her dropped after\nfour months in jail, and the third was acquitted at trial after\n\fNo. 17-1510 11\n\neight months in jail. Hurt, 880 F.3d at 835. The three siblings\nsued the officers accusing them of fabricating evidence—\nincluding confessions—and seeking relief under § 1983 and\nIllinois law. Id. The officers moved for summary judgment\nbased on qualified immunity. The district court denied the\nmotion, id. at 839, and we mostly affirmed.\n As relevant here, Hurt first rejected the officers’ qualified-\nimmunity defense on the Fourth Amendment claim, con-\ncluding that in light of the evidence in the summary-\njudgment record, a reasonable trier of fact could find that the\nplaintiffs “were arrested without even arguable probable\ncause[] and thus in violation of the Fourth Amendment.” Id.\nat 843 (citing Manuel I, 137 S. Ct. at 918–19).\n Two of the Hurt plaintiffs—the two that were held in jail\npending trial—argued that the same police misconduct\nsupported an additional claim for violation of their right to\ndue process, relying on the malicious-prosecution/due-\nprocess theory embedded in our circuit caselaw. See, e.g.,\nJulian v. Hanna, 732 F.3d 842 (7th Cir. 2013); Newsome,\n256 F.3d 747. Hurt determined that Manuel I had not dis-\nturbed the general rule of the Newsome line of cases: while\nthere is “no free-standing constitutional tort of malicious\nprosecution,” other constitutional rights protect people\nagainst “abusive arrests [and] fabrication of evidence.”\n880 F.3d at 843. What mattered was that the plaintiffs had\n“identified the constitutional right at issue”—the Due\nProcess Clause, which “forbids the [S]tate from depriving a\nperson of liberty (including by pre-trial detention) based on\nmanufactured evidence.” Id.\n But in Manuel II—decided nine months after Hurt—we\nexplained that all § 1983 claims for wrongful pretrial deten-\n\f12 No. 17-1510\n\ntion—whether based on fabricated evidence or some other\ndefect—sound in the Fourth Amendment. Like the plaintiffs\nin Hurt, Manuel relied on the tort of malicious prosecution\nas an analogy. 903 F.3d at 669. We explained that while this\n“might have seemed sensible before the Supreme Court\nspoke,” after Manuel I it is the “wrong characterization”;\nindeed, “the Justices deprecated the analogy to malicious\nprosecution.” Id. at 669–70 (citing Manuel I, 137 S. Ct. at 917–\n20). Instead, the constitutional right in question is the “right\nnot to be held in custody without probable cause,” the\nviolation of which gives rise to a “plain-vanilla Fourth\nAmendment” claim under § 1983 because the essential\nconstitutional wrong is the “absence of probable cause that\nwould justify the detention.” Id. at 670 (citing Manuel I,\n137 S. Ct. at 917–20). In other words, the Fourth Amend-\nment, not the Due Process Clause, is the source of the right\nin a § 1983 claim for unlawful pretrial detention, whether\nbefore or after the initiation of formal legal process.\n We overrule precedent only in limited circumstances; a\nclear intracircuit conflict is one of them. Glaser v. Wound Care\nConsultants, Inc., 570 F.3d 907, 915–16 (7th Cir. 2009).\nManuel II and Hurt cannot be reconciled. Indeed, Hurt is\nhard to square with Manuel I. The Supreme Court held that\nthe initiation of formal legal process following an arrest does\nnot convert a Fourth Amendment unreasonable-seizure\nclaim “into one founded on the Due Process Clause.”\n137 S. Ct. at 919. The injury of wrongful pretrial detention\nmay be remedied under § 1983 as a violation of the Fourth\nAmendment, not the Due Process Clause. To the extent Hurt\nholds otherwise, it is overruled.\n\fNo. 17-1510 13\n\n We close by noting the important point that a claim for\nwrongful pretrial detention based on fabricated evidence is\ndistinct from a claim for wrongful conviction based on fabri-\ncated evidence: “[C]onvictions premised on deliberately\nfabricated evidence will always violate the defendant’s right\nto due process.” Avery v. City of Milwaukee, 847 F.3d 433, 439\n(7th Cir. 2017) (emphasis added); see also Mooney v. Holohan,\n294 U.S. 103, 112 (1935) (explaining that the use of perjured\ntestimony “to procure the conviction and imprisonment of a\ndefendant is as inconsistent with the rudimentary demands\nof justice as is the obtaining of a like result by intimidation”);\nWhitlock v. Brueggemann, 682 F.3d 567, 580 (7th Cir. 2012).\nMoreover, misconduct of this type that results in a convic-\ntion might also violate the accused’s right to due process\nunder the rubric of Brady v. Maryland, 373 U.S. 83 (1963), and\nKyles v. Whitley, 514 U.S. 419 (1995), if government officials\nsuppressed evidence of the fabrication. Avery, 847 F.3d at\n443–44. We reiterate that we deal here only with a claim of\nwrongful pretrial detention, not a claim of wrongful convic-\ntion.\n * * *\n Applying Manuel I and II, we hold that Lewis timely filed\na viable Fourth Amendment claim for wrongful pretrial\ndetention. We therefore reverse the dismissal of that claim\nand remand for further proceedings. Under Manuel I and II,\nthe Due Process Clause does not apply, so the judgment is\notherwise affirmed.\n AFFIRMED in part and REVERSED AND REMANDED in part.\n[END_CASE]", "role": "user" } ]
4,584,016	Dale E. KLEBER, Plaintiff-Appellant, v. CAREFUSION CORPORATION, Defendant-Appellee.	Dale Kleber v. CareFusion Corporation	2019-01-23	17-1206	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Wood, Bauer, Flaum, Easterbrook, Kanne, Rovner, Sykes, Hamilton, Barrett, Brennan, Scudder, Eve", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9887902/", "author_raw": ""}, {"author": "", "type": "040dissent", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9887903/", "author_raw": ""}, {"author": "by EASTERBROOK, Circuit Judge.", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-1206\nDALE E. KLEBER,\n Plaintiff-Appellant,\n v.\n\nCAREFUSION CORPORATION,\n Defendant-Appellee.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 1:15-cv-1994 — Sharon Johnson Coleman, Judge.\n ____________________\n\n ARGUED SEPTEMBER 6, 2018 — DECIDED JANUARY 23, 2019\n ____________________\n\n Before WOOD, Chief Judge, and BAUER, FLAUM,\nEASTERBROOK, KANNE, ROVNER, SYKES, HAMILTON, BARRETT,\nBRENNAN, SCUDDER, and ST. EVE, Circuit Judges.\n SCUDDER, Circuit Judge. After Dale Kleber unsuccessfully\napplied for a job at CareFusion Corporation, he sued for age\ndiscrimination on a theory of disparate impact liability. The\ndistrict court dismissed his claim, concluding that § 4(a)(2) of\nthe Age Discrimination in Employment Act did not authorize\njob applicants like Kleber to bring a disparate impact claim\n\n2 No. 17-1206\n\nagainst a prospective employer. A divided panel of this court\nreversed. We granted en banc review and, aﬃrming the dis-\ntrict court, now hold that the plain language of § 4(a)(2) makes\nclear that Congress, while protecting employees from dispar-\nate impact age discrimination, did not extend that same pro-\ntection to outside job applicants. While our conclusion is\ngrounded in § 4(a)(2)’s plain language, it is reinforced by the\nADEA’s broader structure and history.\n I\n In March 2014, Kleber, an attorney, applied for a senior in-\nhouse position in CareFusion’s law department. The job de-\nscription required applicants to have “3 to 7 years (no more\nthan 7 years) of relevant legal experience.” Kleber was 58 at\nthe time he applied and had more than seven years of perti-\nnent experience. CareFusion passed over Kleber and instead\nhired a 29-year-old applicant who met but did not exceed the\nprescribed experience requirement.\n Kleber responded by bringing this action and pursuing\nclaims for both disparate treatment and disparate impact un-\nder § 4(a)(1) and § 4(a)(2) of the ADEA. Relying on our prior\ndecision in EEOC v. Francis W. Parker School, 41 F.3d 1073 (7th\nCir. 1994), the district court granted CareFusion’s motion to\ndismiss Kleber’s disparate impact claim, reasoning that the\ntext of § 4(a)(2) did not extend to outside job applicants.\nKleber then voluntarily dismissed his separate claim for dis-\nparate treatment liability under § 4(a)(1). This appeal fol-\nlowed.\n\nNo. 17-1206 3\n\n II\n A\n We begin with the plain language of § 4(a)(2). “If the stat-\nutory language is plain, we must enforce it according to its\nterms.” King v. Burwell, 135 S. Ct. 2480, 2489 (2015). This pre-\ncept reinforces the constitutional principle of separation of\npowers, for our role is to interpret the words Congress enacts\ninto law without altering a statute’s clear limits. See Puerto\nRico v. Franklin Cal. Tax-Free Trust, 136 S. Ct. 1938, 1949 (2016).\n Section 4(a)(2) makes it unlawful for an employer\n to limit, segregate, or classify his employees in\n any way which would deprive or tend to de-\n prive any individual of employment opportuni-\n ties or otherwise adversely aﬀect his status as an\n employee, because of such individual’s age.\n29 U.S.C. § 623(a)(2).\n By its terms, § 4(a)(2) proscribes certain conduct by em-\nployers and limits its protection to employees. The prohibited\nconduct entails an employer acting in any way to limit, segre-\ngate, or classify its employees based on age. The language of\n§ 4(a)(2) then goes on to make clear that its proscriptions ap-\nply only if an employer’s actions have a particular impact—\n“depriv[ing] or tend[ing] to deprive any individual of em-\nployment opportunities or otherwise adversely aﬀect[ing] his\nstatus as an employee.” This language plainly demonstrates\nthat the requisite impact must befall an individual with “sta-\ntus as an employee.” Put most simply, the reach of § 4(a)(2)\ndoes not extend to applicants for employment, as common\ndictionary definitions confirm that an applicant has no “status\nas an employee.” See Merriam-Webster’s Collegiate\n\n4 No. 17-1206\n\nDictionary 60, 408 (11th ed. 2003) (defining “applicant” as\n“one who applies,” including, for example, “a job [appli-\ncant],” while defining “employee” as “one employed by an-\nother usu[ally] for wages or salary and in a position below the\nexecutive level”).\n Subjecting the language of § 4(a)(2) to even closer scrutiny\nreinforces our conclusion. Congress did not prohibit just con-\nduct that “would deprive or tend to deprive any individual of\nemployment opportunities.” It went further. Section 4(a)(2)\nemploys a catchall formulation—“or otherwise adversely af-\nfect his status as an employee”—to extend the proscribed con-\nduct. Congress’s word choice is significant and has a unifying\neﬀect: the use of “or otherwise” serves to stitch the prohibi-\ntions and scope of § 4(a)(2) into a whole, first by making clear\nthat the proscribed acts cover all conduct “otherwise af-\nfect[ing] his status as an employee,” and, second, by limiting\nthe reach of the statutory protection to an individual with\n“status as an employee.” See Villarreal v. R.J. Reynolds Tobacco\nCo., 839 F.3d 958, 964 (11th Cir. 2016) (en banc) (interpreting\n§ 4(a)(2) the same way and explaining that the “or otherwise”\nlanguage “operates as a catchall: the specific items that pre-\ncede it are meant to be subsumed by what comes after the ‘or\notherwise’”).\n Kleber begs to diﬀer, arguing that § 4(a)(2)’s coverage\nextends beyond employees to applicants for employment. He\ngets there by focusing on the language in the middle of\n§ 4(a)(2)—“deprive or tend to deprive any individual of\nemployment opportunities”—and contends that the use of\nthe expansive term “any individual” shows that Congress\nwished to cover outside job applicants. If the only question\nwere whether a job applicant counts as “any individual,”\n\nNo. 17-1206 5\n\nKleber would be right. But time and again the Supreme Court\nhas instructed that statutory interpretation requires reading a\ntext as a whole, and here that requires that we refrain from\nisolating two words when the language surrounding those\ntwo words supplies essential meaning and resolves the\nquestion before us. See, e.g., United Sav. Ass’n of Tex. v. Timbers\nof Inwood Forest Assocs., Ltd., 484 U.S. 365, 371 (1988)\n(describing statutory construction as a “holistic endeavor”);\nsee also K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988)\n(directing courts to consider “the language and design of the\nstatute as a whole”); Trustees of Chicago Truck Drivers v.\nLeaseway Transp. Corp., 76 F.3d 824, 828 (7th Cir. 1996)\n(emphasizing the same points and explaining that the\nmeaning of statutory text comes from reading language in\ncontext and not words in insolation).\n Reading § 4(a)(2) in its entirety shows that Congress em-\nployed the term “any individual” as a shorthand reference to\nsomeone with “status as an employee.” This construction is\nclear from Congress’s use of language telling us that the pro-\nvision covers “any individual” deprived of an employment\nopportunity because such conduct “adversely aﬀects his sta-\ntus as an employee.” Put diﬀerently, ordinary principles of\ngrammatical construction require connecting “any individ-\nual” (the antecedent) with the subsequent personal possessive\npronoun “his,” and upon doing so we naturally read “any in-\ndividual” as referring and limited to someone with “status as\nan employee.” See Flora v. United States, 362 U.S. 145, 150\n(1960) (“This Court naturally does not review congressional\nenactments as a panel of grammarians; but neither do we re-\ngard ordinary principles of English prose as irrelevant to a\nconstruction of those enactments.”). The clear takeaway is\nthat a covered individual must be an employee.\n\n6 No. 17-1206\n\n Our conclusion becomes ironclad the moment we look be-\nyond § 4(a)(2) and ask whether other provisions of the ADEA\ndistinguish between employees and applicants. See Mount\nLemmon Fire Dist. v. Guido, 139 S. Ct. 22, 24 (2018) (endorsing\nthis same approach when interpreting the ADEA’s various\ndefinitions of “employer”). We do not have to look far to see\nthat the answer is yes.\n Right next door to § 4(a)(2) is § 4(a)(1), the ADEA’s dispar-\nate treatment provision. In § 4(a)(1), Congress made it unlaw-\nful for an employer “to fail or refuse to hire or to discharge any\nindividual or otherwise discriminate against any individual\nwith respect to his compensation, terms, conditions, or privi-\nleges of employment, because of such individual’s age.” 29\nU.S.C. § 623(a)(1) (emphasis added). All agree that § 4(a)(1),\nby its terms, covers both employees and applicants. See, e.g.,\nKralman v. Ill. Dep’t of Veterans’ Aﬀairs, 23 F.3d 150, 152–53 (7th\nCir. 1994) (treating an applicant’s right to bring a claim under\n§ 4(a)(1) as unquestioned). Compelling this consensus is\n§ 4(a)(1)’s use of the words “to fail or refuse to hire or to dis-\ncharge,” which make clear that “any individual” includes\nsomeone seeking to be hired. 29 U.S.C. § 623(a)(1).\n Yet a side-by-side comparison of § 4(a)(1) with § 4(a)(2)\nshows that the language in the former plainly covering appli-\ncants is conspicuously absent from the latter. Section 4(a)(2)\nsays nothing about an employer’s decision “to fail or refuse to\nhire … any individual” and instead speaks only in terms of\nan employer’s actions that “adversely aﬀect his status as an\nemployee.” We cannot conclude this diﬀerence means noth-\ning: “when ‘Congress includes particular language in one sec-\ntion of a statute but omits it in another’—let alone in the very\nnext provision—the Court presumes that Congress intended\n\nNo. 17-1206 7\n\na diﬀerence in meaning.” Loughrin v. United States, 573 U.S.\n351, 358 (2014) (quoting Russello v. United States, 464 U.S. 16,\n23 (1983)).\n There is even more. A short distance away from § 4(a)(2)\nis § 4(c)(2), which disallows labor organizations from engag-\ning in particular conduct. Section 4(c)(2), in pertinent part,\nmakes it unlawful for a labor organization\n to limit, segregate, or classify its membership …\n in any way which would deprive or tend to de-\n prive any individual of employment opportuni-\n ties … or otherwise adversely aﬀect his status as\n an employee or as an applicant for employment, be-\n cause of such individualʹs age.\n29 U.S.C. § 623(c)(2) (emphasis added).\n The parallel with § 4(a)(2) is striking: both provisions de-\nfine the prohibited conduct in terms of action that “would de-\nprive or tend to deprive any individual of employment op-\nportunities,” only then to include the “or otherwise adversely\naﬀect” catchall language. But there is a big diﬀerence between\nthe two provisions: § 4(c)(2)’s protection extends to any indi-\nvidual with “status as an employee or as an applicant for em-\nployment,” whereas Congress limited § 4(a)(2)’s reach only to\nsomeone with “status as an employee.”\n Consider yet another example. In § 4(d), Congress ad-\ndressed employer retaliation by making it “unlawful for an\nemployer to discriminate against any of his employees or appli-\ncants for employment” because such an individual has opposed\ncertain unlawful practices of age discrimination. 29 U.S.C.\n§ 623(d) (emphasis added). Here, too, the distinction between\n“employees” and “applicants” jumps oﬀ the page.\n\n8 No. 17-1206\n\n Each of these provisions distinguishes between employees\nand applicants. It is implausible that Congress intended no\nsuch distinction in § 4(a)(2), however, and instead used the\nterm employees to cover both employees and applicants. To\nconclude otherwise runs afoul of the Supreme Court’s ad-\nmonition to take statutes as we find them by giving eﬀect to\ndiﬀerences in meaning evidenced by diﬀerences in language.\nSee Mount Lemmon Fire Dist., 139 S. Ct. at 26 (declining the\ndefendant’s invitation to take language from one part of a sen-\ntence and then “reimpose it for the portion” of the sentence in\nwhich Congress omitted the same language); see also Dep’t of\nHomeland Sec. v. MacLean, 135 S. Ct. 913, 919 (2015) (explaining\nthat “Congress generally acts intentionally when it uses par-\nticular language in one section of a statute but omits it in an-\nother”).\n In the end, the plain language of § 4(a)(2) leaves room for\nonly one interpretation: Congress authorized only employees\nto bring disparate impact claims.\n B\n Kleber urges a diﬀerent conclusion in no small part on the\nbasis of the Supreme Court’s 1971 decision in Griggs v. Duke\nPower Co., 401 U.S. 424, where the Court interpreted\n§ 703(a)(2) of Title VII and held that disparate impact was a\nviable theory of liability. Indeed, Kleber goes so far as to say\nGriggs—a case where the Court considered language in Title\nVII that at the time paralleled the language we consider\nhere—controls and mandates a decision in his favor. We dis-\nagree.\n A commonsense observation is warranted at the outset. If\nKleber is right that Griggs, a Title VII case, compels the\n\nNo. 17-1206 9\n\nconclusion that § 4(a)(2) of the ADEA authorizes outside job\napplicants to bring a disparate impact claim, we find it very\ndiﬃcult to explain why it took the Supreme Court 34 years to\nresolve whether anyone—employee or applicant—could sue\non a disparate impact theory under the ADEA, as it did in\nSmith v. City of Jackson, 544 U.S. 228 (2005). There was no need\nfor the Court to decide Smith if (all or part of) the answer came\nin Griggs. And when the Court did decide Smith the Justices’\nseparate opinions recognized the imperative of showing\nimpact to an individual’s “status as an employee” when\ndiscerning the reach of § 4(a)(2). See id. at 235–36, 236 n.6\n(plurality opinion); see id. at 266 (O’Connor, J., concurring,\njoined by Kennedy & Thomas, JJ.).\n Kleber’s position fares no better within the four corners of\nGriggs itself. Several African-American employees of Duke\nPower challenged the company’s practice of conditioning cer-\ntain job transfers and promotions on graduating from high\nschool and passing a standardized aptitude test. See 401 U.S.\nat 426. The employees sued under § 703(a) of Title VII, a pro-\nvision that in 1971 mirrored the present language of § 4(a)(2)\nof the ADEA. See id. at 426 n.1. The Court held that § 703(a)(2)\nprohibits disparate impact discrimination by proscribing\n“practices that are fair in form, but discriminatory in opera-\ntion” unless an employer can show that the challenged prac-\ntice is “related to job performance” and thus a “business ne-\ncessity.” Id. at 431.\n Kleber would have us read Griggs beyond its facts by fo-\ncusing on language in a couple of places in the Court’s opin-\nion that he sees as covering employees and applicants alike.\nWe decline the invitation. Nowhere in Griggs did the Court\nstate that its holding extended to job applicants. And that\n\n10 No. 17-1206\n\nmakes perfect sense because nothing about the case, brought\nas it was by employees of Duke Power and not outside appli-\ncants, required the Court to answer that question. The lan-\nguage that Kleber insists on reading in isolation must be read\nin context, and the totality of the Griggs opinion makes clear\nthat the Court answered whether Duke Power’s African-\nAmerican employees could bring a claim for disparate impact\nliability based on practices that kept them from pursuing dif-\nferent, higher-paying jobs within the company.\n What happened a year after Griggs cements our conclu-\nsion. In 1972, Congress amended § 703(a)(2) of Title VII—the\nprovision at issue in Griggs—by adding language to expressly\ninclude “applicants for employment.” Pub. L. No. 92-261,\n§ 8(a), 86 Stat. 109 (1972). This amendment occurred in the im-\nmediate wake of Griggs and, in this way, reflected Congress’s\nswift and clear desire to extend Title VII’s disparate impact\nprotection to job applicants. There was no need for Congress\nto amend § 703(a)(2) if the provision had always covered job\napplicants and especially if the Supreme Court had just said\nso in Griggs. To conclude otherwise renders the 1972 amend-\nment a meaningless act of the 92nd Congress, and we are re-\nluctant to conclude that substantive changes to statutes reflect\nidle acts.\n The Supreme Court endorsed this precise course of analy-\nsis—giving eﬀect to “Congress’s decision to amend Title VII’s\nrelevant provisions but not make similar changes to the\nADEA”—in Gross v. FBL Financial Servs., Inc., 557 U.S. 167, 174\n(2009). The Court there considered whether a plaintiﬀ suing\nunder § 4(a)(1) of the ADEA must establish that age was the\nbut-for cause of an employer’s adverse action. See id. at 173.\nThe plaintiﬀ urged the Court to adopt Title VII’s lesser\n\nNo. 17-1206 11\n\nstandard of race being only a motivating factor in the chal-\nlenged decision. See id. Paramount to the Court’s conclusion\nthat an ADEA plaintiﬀ must prove but-for causation were tex-\ntual diﬀerences between the ADEA and Title VII brought\nabout by Congress’s amendments to Title VII. See id. at 174\n(explaining that “Congress neglected to add such a [motivat-\ning-factor] provision to the ADEA when it amended Title VII\n[in 1991]” and emphasizing that “[w]hen Congress amends\none statutory provision but not another, it is presumed to\nhave acted intentionally”). The Court’s instruction was clear:\nprior decisions interpreting Title VII “do not control our con-\nstruction of the ADEA” where the text of the two statutes are\n“materially diﬀerent.” Id. at 173.\n And so it is here. Congress’s choice to add “applicants” to\n§ 703(a)(2) of Title VII but not to amend § 4(a)(2) of the ADEA\nin the same way is meaningful. Gross teaches that we cannot\nignore such diﬀerences in language between the two enact-\nments. And, at the risk of understatement, Gross is far from an\naberration in statutory construction. A mountain of precedent\nsupports giving eﬀect to statutory amendments. See, e.g.,\nUnited States v. Quality Stores, Inc., 572 U.S. 141, 148 (2014)\n(quoting Stone v. INS, 514 U.S. 386, 397 (1995)) (“When Con-\ngress acts to amend a statute, we presume it intends its\namendment to have real and substantial eﬀect.”); Fidelity Fin.\nServs., Inc. v. Fink, 522 U.S. 211, 220–21 (1998) (explaining that\nafter Congress modified the federal statute controlling when\na transfer of a security interest was perfected, “we see no basis\nto say that subsequent amendments removing references to\nstate-law options had the counterintuitive eﬀect of deferring\nto such [state law] options” without unwinding the statutory\namendments); United States v. Wells, 519 U.S. 482, 492–93\n(1997) (explaining that after Congress amended the federal\n\n12 No. 17-1206\n\ncriminal statute pertinent to false representations to remove\nany express reference to materiality, “the most likely infer-\nence in these circumstances is that Congress deliberately\ndropped the term ‘materiality’ without intending materiality\nto be an element of [18 U.S.C.] § 1014”); Stone, 514 U.S. at 397–\n98 (explaining that after Congress amended the Immigration\nand Naturalization Act, “[t]he reasonable construction [was]\nthat the amendment was enacted as an exception, not just to\nstate an already existing rule”).\n In no way does this analysis downplay Griggs, as our dis-\nsenting colleagues contend. We have approached Griggs as\nbinding precedent and construed its holding not only by\nreading what the Supreme Court’s opinion says (and does not\nsay), but also in light of Congress’s immediately amending\nTitle VII (but not § 4(a)(2) of the ADEA) to cover “applicants”\nas well as the broader development in the law ever since, in-\ncluding with precedents like Smith in 2005 and Gross in 2009.\n The upshot is clear: while Congress amended § 703(a)(2)\nof Title VII in 1972 to cover “applicants for employment,” it\nhas never followed suit and modified § 4(a)(2) of the ADEA in\nthe same way. And this is so despite Congress’s\ndemonstrating, just a few years after Griggs, that it knew how\nto amend the ADEA to expressly include outside job\napplicants. See Villarreal, 839 F.3d at 979–80 (Rosenbaum, J.,\nconcurring) (observing that Congress amended the ADEA in\n1974 to extend the statute’s reach to federal-government\nemployment, and in doing so, explicitly referenced both\n“employees and applicants for employment” in the new\nprovision, 29 U.S.C. § 633a).\n Today, then, § 703(a)(2) of Title VII diﬀers from § 4(a)(2) in\nat least one material respect: the protections of the former\n\nNo. 17-1206 13\n\nextend expressly to “applicants for employment,” while the\nlatter covers only individuals with “status as an employee.”\nWe underscored this exact diﬀerence 14 years ago in our opin-\nion in Francis W. Parker, and we do so again today. See 41 F.3d\nat 1077 (“The ‘mirror’ provision in the ADEA omits from its\ncoverage, ‘applicants for employment.’”). The plain language\nof § 4(a)(2) controls and compels judgment in CareFusion’s\nfavor.\n C\n Beyond his reliance on Griggs, Kleber invites us to read the\nADEA against the backdrop of Congress’s clear purpose of\nbroadly prohibiting age discrimination. On this score, he\npoints us to the Supreme Court’s decision in Robinson v. Shell\nOil Company, 519 U.S. 337 (1997) and to the report of the\nformer Secretary of the Department of Labor, Willard Wirtz.\n In Robinson, the Court held that § 704(a) of Title VII ex-\ntended not just to “employees” (a term used in § 704(a)), but\nalso to former employees. See id. at 346. The Court empha-\nsized that, while the meaning of “employees” was ambigu-\nous, Title VII’s broader structure made plain that Congress\nintended the term to cover former employees, a construction\nthat furthered Title VII’s broader purposes. None of this helps\nKleber. (Indeed, if anything, Robinson’s clear observation of\nthe distinct and separate meaning of “employees” and “appli-\ncants for employment” in § 704(a) severely undermines\nKleber’s textual argument. See id. at 344.) Robinson, in short,\nprovides direction on how courts— if confronted with statu-\ntory ambiguity—should resolve such ambiguity. There being\nno ambiguity in the meaning of § 4(a)(2) of the ADEA, our\nrole ends—an outcome on all fours with Robinson.\n\n14 No. 17-1206\n\n The Wirtz Report reflected the Labor Department’s\nresponse to Congress’s request for recommended age\ndiscrimination legislation, and a plurality of the Supreme\nCourt in Smith treated the Report as an authoritative signal of\nCongress’s intent when enacting the ADEA. See Smith, 544\nU.S. at 238. We do too.\n Nobody disputes that the Wirtz Report reinforces\nCongress’s clear aim of enacting the ADEA to prevent age\ndiscrimination in the workplace by encouraging the\nemployment of older persons, including older job applicants.\nBut we decline to resolve the question presented here on the\nbasis of broad statutory purposes or, more specifically, to\nforce an interpretation of but one provision of the ADEA\n(here, § 4(a)(2)) to advance the enactment’s full objectives.\n Our responsibility is to interpret § 4(a)(2) as it stands in the\nU.S. Code and to ask whether the provision covers outside job\napplicants. We cannot say it does and remain faithful to the\nprovision’s plain meaning. It remains the province of\nCongress to choose where to draw legislative lines and to\nmark those lines with language. Our holding gives eﬀect to\nthe plain limits embodied in the text of § 4(a)(2).\n The ADEA, moreover, is a wide-ranging statutory scheme,\nmade up of many provisions beyond § 4(a)(2). And a broader\nlook at the statute shows that outside job applicants have\nother provisions at their disposal to respond to age discrimi-\nnation. Section 4(a)(1), for example, prevents an employer\nfrom disparately treating both job applicants and employees\non the basis of age. See 29 U.S.C. § 623(a)(1). Section 4(c)(2),\nprevents a labor organization’s potential age discrimination\nagainst both job applicants and employees. See 29 U.S.C.\n§ 623(c)(2).\n\nNo. 17-1206 15\n\n Today’s decision, while unfavorable to Kleber, leaves\nteeth in § 4(a)(2). The provision protects older employees who\nencounter age-based disparate impact discrimination in the\nworkplace. And Congress, of course, remains free to do what\nthe judiciary cannot—extend § 4(a)(2) to outside job appli-\ncants, as it did in amending Title VII.\n For these reasons, we AFFIRM.\n\n16 No. 17-1206", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4361269/", "author_raw": "by EASTERBROOK, Circuit Judge."}, {"author": "EASTERBROOK, Circuit Judge, dissenting", "type": "dissent", "text": "EASTERBROOK, Circuit Judge, dissenting. I do not join the\nmajority’s opinion, because the statute lacks a plain mean-\ning. Robinson v. Shell Oil Corp., 519 U.S. 337 (1997), held that\nthe word “employees” in one part of Title VII includes ex-\nemployees. Robinson interpreted text in context. Here, too,\nthe judiciary must look outside one subsection to tell wheth-\ner “individual” in 29 U.S.C. §623(a)(2) includes applicants\nfor employment.\n But neither do I join all of Judge Hamilton’s dissent,\nwhich relies on legislative purpose. The purpose of a law is\nimputed by judges; it is not a thing to be mined out of a stat-\nute. Even when we know what direction the legislature\nwanted to move, we must know how far to go—and making\nthat choice is a legislative task. See, e.g., Rodriguez v. United\nStates, 480 U.S. 522, 525–26 (1987). Our job is to apply the en-\nacted text, the only thing to which the House, the Senate,\nand the President all subscribed, not to plumb legislators’\nhopes and goals.\n Section 623(a) provides:\n It shall be unlawful for an employer—\n (1) to fail or refuse to hire or to discharge any individual or\n otherwise discriminate against any individual with respect\n to his compensation, terms, conditions, or privileges of em-\n ployment, because of such individual’s age;\n (2) to limit, segregate, or classify his employees in any way\n which would deprive or tend to deprive any individual of\n employment opportunities or otherwise adversely aﬀect his\n status as an employee, because of such individual’s age; or\n (3) to reduce the wage rate of any employee in order to com-\n ply with this chapter.\n\nNo. 17-1206 17\n\nThe word “individual” in paragraph (1) includes applicants\nfor employment; everyone agrees on this much. “Individual”\nreappears in paragraph (2), and normally one word used in\nadjacent paragraphs means a single thing. See Antonin Scalia\n& Bryan A. Garner, Reading Law: The Interpretation of Legal\nTexts (2011) (Canon 25: Presumption of Consistent Usage).\nMaybe the trailing phrase in paragraph (2)—”otherwise ad-\nversely aﬀect his status as an employee”—implies that the\nword “individual” in paragraph (2) means only employees.\nThat’s what the majority believes. But maybe, as Part I.C of\nJudge Hamilton’s dissent suggests, this phrase establishes an\nindependent set of rights for employees, without implying\nthat applicants for employment are not “individuals.”\n The statutory context does not point ineluctably to one\nunderstanding. The majority does not explain why the stat-\nute would use “individual” in dramatically diﬀerent ways\nwithin the space of a few words. But the principal dissent\ndoes not explain how we can read “individual” in paragraph\n(2) to include “applicant” without causing paragraphs (1)\nand (2) to converge. If that happens, then paragraph (2) ap-\nplies disparate-impact analysis to all employment actions.\nThat leaves little or nothing for paragraph (1) to do, for par-\nagraph (2), no less than paragraph (1), prohibits disparate\ntreatment.\n Smith v. Jackson, 544 U.S. 228, 236 n.6 (2005) (plurality\nopinion), tells us that paragraphs (1) and (2) have diﬀerent\nscopes and that only paragraph (2) provides disparate-\nimpact liability. That conclusion is enough by itself to expose\nproblems in Part III of Judge Hamilton’s dissent, which in\nthe name of legislative purpose would extend disparate-\nimpact analysis across the board. Yet this does not help us to\n\n18 No. 17-1206\n\nknow what “individual” in paragraph (2) does mean. Per-\nhaps Justice O’Connor was right in Smith, 544 U.S. at 247–68\n(concurring opinion), and we should not impute disparate-\nimpact liability to paragraph (2). The question we are ad-\ndressing today may have no answer; it may be an artifact of\nthe way the plurality in Smith distinguished paragraph (1)\nfrom paragraph (2), and if Justice O’Connor is right there’s\nno need to search for that nonexistent answer. But that mode\nof resolving this suit is not open to a court of appeals.\n Because neither text nor purpose oﬀers a satisfactory so-\nlution, we should stop with precedent. Griggs v. Duke Power\nCo., 401 U.S. 424 (1971), treats the word “individual” in 42\nU.S.C. §2000e–2(a)(2), as it stood before an amendment in\n1972, as including applicants for employment. The pre-1972\nversion of that statute is identical to the existing text in\n§623(a); Congress copied this part of the ADEA from that\npart of Title VII. It may be that the Court in Griggs was care-\nless to treat outside applicants for employment as “individ-\nuals” in paragraph (2), but that is what the Justices did. Part\nII of Judge Hamilton’s opinion shows how this came to hap-\npen and also shows that many of the Supreme Court’s later\ndecisions read Griggs to hold that paragraph (2) in the pre-\n1972 version of Title VII applies disparate-impact theory to\noutside applicants for employment. If the Justices think that\nthis topic (or Smith itself) needs a new look, the matter is for\nthem to decide. I therefore join Part II of Judge Hamilton’s\ndissenting opinion.\n\nNo. 17-1206 19", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4361269/", "author_raw": "EASTERBROOK, Circuit Judge, dissenting"}, {"author": "HAMILTON, Circuit Judge, dissenting", "type": "dissent", "text": "HAMILTON, Circuit Judge, dissenting, joined by WOOD,\nChief Judge, and ROVNER, Circuit Judge, and joined as to Part II\nby EASTERBROOK, Circuit Judge.\n We should reverse the district court’s Rule 12(b)(6) dismis-\nsal of plaintiff Dale Kleber’s disparate impact claim and re-\nmand for further proceedings. The key provision of the Age\nDiscrimination in Employment Act prohibits both employ-\nment practices that discriminate intentionally against older\nworkers and those that have disparate impacts on older work-\ners. 29 U.S.C. § 623(a); Smith v. City of Jackson, 544 U.S. 228\n(2005). The central issue in this appeal is whether the dispar-\nate-impact provision, § 623(a)(2), protects only current em-\nployees or whether it protects current employees and outside\njob applicants.\n We should hold that the disparate-impact language in\n§ 623(a)(2) protects both outside job applicants and current\nemployees. Part I of this opinion explains why that’s the better\nreading of the statutory text that is at worst ambiguous on\ncoverage of job applicants. While other ADEA provisions pro-\ntect job applicants more clearly, the Supreme Court guides us\naway from the majority’s word-matching and toward a more\nsensible and less arbitrary reading. See Robinson v. Shell Oil\nCo., 519 U.S. 337, 341–46 (1997).\n Part II explains that protecting outside job applicants\ntracks the Supreme Court’s reading of identical statutory lan-\nguage in Title VII of the Civil Rights Act of 1964. In Griggs v.\nDuke Power Co., 401 U.S. 424, 426 n.1, 431 (1971), the Court\nfound that this same disparate-treatment language protects\nnot only current employees but also “the job-seeker”—people\nlike plaintiff Kleber. We should read the same language the\n\n20 No. 17-1206\n\nsame way. The majority tries to avoid this reasoning by nar-\nrowing Griggs and attributing significance to the 1972 amend-\nment of the Title VII disparate-impact provision. As detailed\nin Part II, the actual facts of both the Griggs litigation and the\n1972 amendment flatly contradict the majority’s glib and un-\nsupported theories.\n Part III explains that protecting both outside applicants\nand current employees is also more consistent with the pur-\npose of the Act (as set forth in the statute itself) and avoids\ndrawing an utterly arbitrary line. Neither the defendant nor\nits amici have offered a plausible policy reason why Congress\nmight have chosen to allow disparate-impact claims by cur-\nrent employees, including internal job applicants, while ex-\ncluding outside job applicants. The en banc majority does not\neven try to do so, following instead a deliberately naïve ap-\nproach to an ambiguous statutory text, closing its eyes to fifty\nyears of history, context, and application.\nI. The Text of the ADEA’s Disparate-Impact Provision\n A. Statutory Text of Disputed Provision\n We begin with the statutory language, of course. We ana-\nlyze the specific words and phrases Congress used, but we\ncannot lose sight of their “place in the overall statutory\nscheme,” since we “construe statutes, not isolated provi-\nsions.” King v. Burwell, 135 S. Ct. 2480, 2489 (2015), quoting\nFDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133\n(2000), and Graham County Soil and Water Conservation Dist. v.\nUnited States ex rel. Wilson, 559 U.S. 280, 290 (2010). As the Su-\npreme Court explained in dealing with a similar issue in Title\nVII: “The plainness or ambiguity of statutory language is de-\n\nNo. 17-1206 21\n\ntermined by reference to the language itself, the specific con-\ntext in which that language is used, and the broader context\nof the statute as a whole.” Robinson, 519 U.S. at 341, 346 (pro-\ntection of “employees” from retaliation included former em-\nployees).\n The key provision of the ADEA, 29 U.S.C. § 623(a), reads:\n It shall be unlawful for an employer—\n (1) to fail or refuse to hire or to discharge any\n individual or otherwise discriminate against\n any individual with respect to his compensa-\n tion, terms, conditions, or privileges of employ-\n ment, because of such individual’s age;\n (2) to limit, segregate, or classify his employ-\n ees in any way which would deprive or tend to\n deprive any individual of employment oppor-\n tunities or otherwise adversely affect his status\n as an employee, because of such individual’s\n age; or\n (3) to reduce the wage rate of any employee\n in order to comply with this chapter.\nThe disparate-treatment provision, paragraph (a)(1), does not\nrefer to job applicants, but it clearly applies to them by mak-\ning it unlawful for the employer “to fail or refuse to hire …\nany individual … because of such individual’s age.” The dis-\nparate-impact provision, paragraph (a)(2), also does not refer\nspecifically to applicants or hiring decisions, but its broad lan-\nguage easily reaches employment practices that hurt older job\napplicants as well as current older employees.\n\n22 No. 17-1206\n\n Start with the critical statutory language, which includes\ntwo parallel provisions that prohibit employers from engag-\ning in certain behavior. Under paragraph (a)(1), an employer\nmay not intentionally discriminate against an older individ-\nual by firing or failing to hire or promote her because she is\nolder—i.e., engage in disparate treatment of older individu-\nals. Paragraph (a)(2) prohibits an employer from creating an\ninternal employee classification or limitation that has the ef-\nfect of depriving “any individual of employment opportuni-\nties” or adversely affecting his or her status as an employee\nbecause of age—i.e., creating an internal classification system\nwith a disparate impact against older individuals.\n If an employer classifies a position as one that must be\nfilled by someone with certain minimum or maximum expe-\nrience requirements, it is classifying its employees within the\nmeaning of paragraph (a)(2). If that classification “would de-\nprive or tend to deprive any individual of employment op-\nportunities” because of the person’s age, paragraph (a)(2) can\nreach that classification. The broad phrase “any individual”\nreaches job applicants, so the focus turns to the employer’s\naction and its effects—i.e., whether the employer has classi-\nfied jobs in a way that tends to limit any individual’s employ-\nment opportunities based on age. See Smith, 544 U.S. at 234,\n235–38 (plurality) (explaining that this “text focuses on the ef-\nfects of the action” and not the employer’s motive); id. at 243\n(Scalia, J., concurring).1 The defendant’s maximum-experi-\nence requirement in this case certainly limited plaintiff\nKleber’s employment opportunities.\n\n\n 1Justice Scalia joined Parts I, II, and IV of the Smith opinion by Justice\nStevens and wrote that he also agreed with Justice Stevens’s reasoning in\nPart III. 544 U.S. at 243. I therefore treat all parts of the Smith opinion by\n\nNo. 17-1206 23\n\n B. The Majority’s Cramped Reading\n To avoid this conclusion, the majority emphasizes the\nphrase “or otherwise adversely affect his status as an em-\nployee,” reading it to limit the statute’s disparate-impact pro-\ntection “to an individual with ‘status as an employee.’” Ante\nat 4. Note that the key “with” in that phrase—repeated several\ntimes in the majority opinion—comes only from the majority,\nnot from the statute itself. It’s not correct. The antecedent of\n“his” is “any individual,” and “otherwise adversely affect” is\neven broader than “deprive or tend to deprive any individual\nof employment opportunities.”\n The crux of the majority’s argument is that if “any individ-\nual” is not already employed by the employer in question, the\nindividual does not yet have “status as an employee” and so\nis not protected from policies or practices that have disparate\nimpacts because of age. The majority thus concludes that a\n“person’s status as an employee” cannot be affected unless\nthe person is already an employee. If that’s true, then para-\ngraph (a)(2) subtly limits its protections from disparate im-\npacts to people who already possess “status as an employee”\nwith the defendant-employer.\n The majority’s analysis nullifies the two uses of the broad\nword “individual,” which certainly reaches job applicants.\nWhat Congress meant to say, the majority argues, is that it’s\nunlawful for an employer “to limit, segregate, or classify his\nemployees in any way which would deprive or tend to de-\nprive any current employee [not “any individual”] of employ-\nment opportunities or otherwise adversely affect his status as\n\nJustice Stevens as authoritative without repeatedly citing Justice Scalia’s\nconcurrence as well.\n\n24 No. 17-1206\n\nan employee, because of such employee’s [not “individual’s”]\nage.”\n How does one read a bar against depriving “any individ-\nual” of “employment opportunities” to exclude all cases\nwhere a person is looking for a job? And if Congress meant to\nlimit the provision’s coverage only to current employees, why\ndidn’t it just use the word “employee”? It had used that word\ntwice in this provision already. Courts are generally loath to\nread statutory terms out of a textual provision and to insert\nlimitations that are not evident in the text. See Mount Lemmon\nFire District v. Guido, 139 S. Ct. 22, 26 (2018) (refusing to read\nlimitation into ADEA’s coverage that is not apparent from\ntext, noting that “[t]his Court is not at liberty to insert the ab-\nsent qualifier”).\n C. The Better Reading\n If we look at the language of paragraph (a)(2) in isolation,\nthe majority’s mechanical reading has some superficial plau-\nsibility, but it should be rejected. At the textual level, there are\nthree distinct and fundamental problems.\n First, as Judge Easterbrook points out, the majority’s the-\nory gives the phrase “any individual” very different mean-\nings in adjoining paragraphs (a)(1) and (a)(2) of § 623. Ante at\n17. See also, e.g., Mohasco Corp. v. Silver, 447 U.S. 807, 826\n(1980) (declining to interpret § 706 of Title VII so that the word\n“filed” would have different meanings in different subsec-\ntions).\n Second, the majority merely assumes that “affect his status\nas an employee” necessarily limits the already broad phrase,\n“deprive or tend to deprive any individual of employment\nopportunities.” It is not self-evident—at least as a matter of\n\nNo. 17-1206 25\n\nplain meaning—that the latter “status” phrase must be read as\nlimiting the former. A list culminating in an “or otherwise”\nterm can instead direct the reader to consider the last phrase\nas a catch-all alternative, “in addition to” what came before,\nto capture prohibited actions that might otherwise escape the\nstatute’s reach. For example, an employer can violate the\nADEA by adversely affecting the status of its employees (e.g.,\nby giving bigger raises to junior employees, as alleged in\nSmith, 544 U.S. at 231) without depriving an individual of em-\nployment opportunities such as better jobs and promotions.\nIn this sense, paragraph (a)(2) “enumerates various factual\nmeans of committing a single element”—imposing employ-\nment policies that have disparate impacts on older workers.\nSee Mathis v. United States, 136 S. Ct. 2243, 2249 (2016) (dis-\ncussing various ways to write an “alternatively phrased\nlaw”).\n In Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA, Inc.,\n139 S. Ct. —, — (2019), the Supreme Court rejected a remark-\nably similar argument that attempted to use an “otherwise”\nphrase to limit what came before. Much like the majority here,\nthe patentee argued that “otherwise available to the public”\nin the Patent Act’s “on sale” bar meant that the preceding lan-\nguage also required public availability after a sale. The pa-\ntentee “places too much weight on [the] catchall phrase. Like\nother such phrases, ‘otherwise available to the public’ cap-\ntures material that does not fit neatly into the statute’s enu-\nmerated categories but is nevertheless meant to be covered.”\nSee also Republic of Iraq v. Beaty, 556 U.S. 848, 860 (2009) (ex-\nplaining that “the whole value of a generally phrased residual\nclause, like the one used in the second proviso, is that it serves\nas a catchall for matters not specifically contemplated—\nknown unknowns”). If “otherwise adversely affect his status\n\n26 No. 17-1206\n\nas an employee” does not necessarily limit the entire disparate-\nimpact phrase—if it is instead a catch-all phrase for known\nunknowns, as the Supreme Court explained in Texas Dep’t of\nHousing & Community Affairs v. Inclusive Communities Project,\nInc., 135 S. Ct. 2507, 2519 (2015) (linking “otherwise” phrases\nin ADEA, Title VII, and Fair Housing Act as establishing tex-\ntual foundations for disparate-impact protection)—the major-\nity’s textual analysis collapses.\n Third, even if “status as an employee” must be affected to\nstate a disparate-impact claim under (a)(2), the majority’s con-\nclusion also depends entirely on the unlikely notion that “sta-\ntus as an employee” is not “adversely affected” when an em-\nployer denies an individual the opportunity to become an em-\nployee in the first place. Refusing to hire an individual has the\nmost dramatic possible adverse effect on that individual’s\n“status as an employee.” Reading “status as an employee”\nbroadly, to include whether the individual is an employee or\nnot, is consistent with the actual words Congress used in re-\npeatedly referring to “individuals,” and with ordinary usage.\nCourts often speak of “denying status” of one sort or another.2\n\n\n 2Judge Martin’s dissent in Villarreal v. R.J. Reynolds Tobacco Company\ncollected several examples. 839 F.3d 958, 983 & n.2 (11th Cir. 2016) (en\nbanc), citing Howard Delivery Serv., Inc. v. Zurich Am. Ins. Co., 547 U.S. 651,\n656 (2006) (bankruptcy claimant could be “denied priority status”);\nChandris, Inc. v. Latsis, 515 U.S. 347, 372 (1995) (maritime worker could “be\ndenied seaman status”); McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479,\n496 (1991) (person trying to do seasonal work could be “denied SAW\n[special agricultural worker] status”); Clark v. Gabriel, 393 U.S. 256, 264\n(1968) (draft registrant could be “denied CO [conscientious objector]\nstatus”).\n We have also used this “denial of status” phrasing in a variety of\ncontexts. Bell v. Kay, 847 F.3d 866, 868 (7th Cir. 2017) (plaintiff objected to\n\nNo. 17-1206 27\n\nAnd the word “status” is not necessarily limited to status as\nof any particular moment. 1 U.S.C. § 1 (Dictionary Act provid-\ning that “unless the context indicates otherwise … words used\nin the present tense include the future as well as the present”).\n In short, the effect of the phrase “otherwise adversely af-\nfects his status as an employee” on job applicants is at worst\nambiguous for applicants like Kleber. The majority loads onto\nthat phrase more weight than it can bear. If Congress really\nmeant to exclude job applicants from disparate-impact pro-\ntection, the phrase “status as an employee” was a remarkably\nobscure and even obtuse way to express that meaning.\n D. Comparing § 623(a)(2) to Other ADEA Provisions\n Congress no doubt could have written § 623(a)(2) to make\nclearer its protection of outside job applicants, as it did in\nother ADEA provisions and other statutes. As explained by\nJustice Thomas for a unanimous Supreme Court in Robinson\nv. Shell Oil, however, that observation does not prove that\nCongress chose not to provide that protection. 519 U.S. at 341–\n\n“the order denying him pauper status”); McMahon v. LVNV Funding, LLC,\n807 F.3d 872, 875 (7th Cir. 2015) (observing that “the denial of class status\nis likely to be fatal to this litigation”); Moranski v. General Motors Corp., 433\nF.3d 537, 538 (7th Cir. 2005) (analyzing “denial of Affinity Group status”\naffecting a proposed group of employees); Hileman v. Maze, 367 F.3d 694,\n697 (7th Cir. 2004) (plaintiff alleged injury resulting “from the denial of\nher status” as candidate in local election); Resser v. Comm’r of Internal\nRevenue, 74 F.3d 1528, 1532 (7th Cir. 1996) (appealing Tax Court’s “denial\nof ‘innocent spouse’ status”); Williams v. Katz, 23 F.3d 190, 191 (7th Cir.\n1994) (spurned intervenor permanently “denied the status of a party” in\nlitigation); Lister v. Hoover, 655 F.2d 123, 124–25 (7th Cir. 1981) (plaintiffs\n“who were denied resident status and the accompanying reduced tuition”\nat a state university). In all of these cases, “status” was surely “adversely\naffected,” to use the phrasing of § 623(a)(2).\n\n28 No. 17-1206\n\n42 (language in other statutes “proves only that Congress can\nuse the unqualified term ‘employees’ to refer only to current\nemployees, not that it did so in this particular statute”).\n The first statutory text that provides guidance on how to\nread § 623(a)(2) is the statute’s stated purpose, which the ma-\njority largely disregards. Congress told us it set out to address\n“the incidence of unemployment, especially long-term unem-\nployment” among older workers. 29 U.S.C. § 621(a)(3). In the\nstatute, Congress said it was “especially” concerned about the\ndifficulty older workers faced in trying to “regain employ-\nment when displaced from jobs”—in other words, when older\nworkers were applying for jobs. See § 621(a)(1). Unemployment\nends when a person who is not currently employed applies\nsuccessfully for a job. As the ADEA itself provides, “it is …\nthe purpose of this chapter to promote employment of older\npersons based on their ability rather than age.” § 621(b).\n The majority, however, focuses on comparing § 623(a)(2)\nto several neighboring provisions in the ADEA that distin-\nguish clearly between current employees and job applicants.\nThe majority, to support its improbable result, reads too much\ninto the differences in wording.\n The unlawful employment practices section of the ADEA\nbegins with three subsections prohibiting age discrimination\nin employment by three different kinds of actors—private and\npublic employers, employment agencies, and labor organiza-\ntions. 29 U.S.C. § 623(a)–(c); see also § 630(b) (defining “em-\nployer”). Subsections (a), (b), and (c) are all worded slightly\ndifferently. In the following subsection (d), the ADEA prohib-\nits retaliation by any of these private-sector actors. In another\nsection, the ADEA provides for a different and even broader\n\nNo. 17-1206 29\n\npolicy prohibiting age discrimination in federal hiring and\nemployment. § 633a(a).\n The majority compares three of those ADEA provisions:\nthe labor union provision in § 623(c)(2), the retaliation provi-\nsion in § 623(d), and the federal government provision in\n§ 633a(a). All three of these provisions use the phrase “appli-\ncant for employment.” The majority invokes the common pre-\nsumption that a difference in statutory wording signals a dif-\nference in Congressional intent and meaning. That presump-\ntion, however, is only a tool, not an inflexible rule. We need\nsome basis beyond simple word-matching to believe that\nthese particular differences in language were intended to dis-\ntinguish the ADEA’s disparate-impact provision from these\nother provisions to produce such an improbable result as ex-\ncluding older job applicants from disparate-impact protec-\ntion.\n Instructive here is the Supreme Court’s approach to inter-\npreting the term “employee” in Title VII’s anti-retaliation pro-\nvision. Robinson v. Shell Oil, 519 U.S. at 339–41. Title VII makes\nit unlawful “for an employer to discriminate against any of\nhis employees or applicants for employment” who have ei-\nther availed themselves of Title VII’s protections or assisted\nothers in doing so. 42 U.S.C. § 2000e-3(a). The issue in Robin-\nson was whether this language prohibits retaliation against\nformer employees. As in this case, the Court had to interpret\na provision that was not as clear as other related provisions.\nThe fact that “Congress also could have used the phrase ‘cur-\nrent employees,’” or “expressly included the phrase ‘former\nemployees’ does not aid our inquiry.” 519 U.S. at 341. That\n“the term ‘employees’ may have a plain meaning in the con-\ntext of a particular section,” or that “other statutes have been\n\n30 No. 17-1206\n\nmore specific in their coverage of ‘employees’ and ‘former\nemployees,’ … proves only that Congress can use the unqual-\nified term ‘employees’ to refer only to current employees”—\n“not that the term has the same meaning in all other sections\nand in all other contexts.” Id. at 341–43.\n Adopting an approach that fits here, the Court wrote: “Be-\ncause the term ‘applicants’ in § 704(a) is not synonymous with\nthe phrase ‘future employees,’ there is no basis for engaging\nin the further (and questionable) negative inference that in-\nclusion of the term ‘applicants’ demonstrations intentional ex-\nclusion of former employees.” Id. at 344–45. In fact, the Court\nreasoned, to hold that the term “employee” does not include\nformer employees “would effectively vitiate much of the pro-\ntection afforded by § 704(a),” and “undermine the effective-\nness of Title VII by allowing the threat of postemployment re-\ntaliation to deter victims of discrimination from complaining\nto the EEOC, and would provide a perverse incentive for em-\nployers to fire employees who might bring Title VII claims.”\nId. at 345–46.\n In short, the Court concluded, an “inclusive interpretation\nof ‘employees’ in § 704(a) that is already suggested by the\nbroader context of Title VII”—and that is not “destructive of\n[the] purpose” of the statute by allowing an employer to es-\ncape liability for “an entire class of acts”—“carry persuasive\nforce given their coherence and their consistency with a pri-\nmary purpose” of the statutory provision. Id. at 346. We\nshould use the same approach here.\n Instead, the majority’s reading of § 623(a)(2) creates a\nstrange incongruity. All actors who regularly recruit job ap-\nplicants—employment agencies, labor unions, and federal\n\nNo. 17-1206 31\n\nagencies—are prohibited from engaging in age discrimina-\ntion, including disparate-impact discrimination. See 29 U.S.C.\n§§ 623(b), 623(c)(2), & 633a(a). Yet the majority concludes that\nCongress chose to allow private employers to use practices\nwith disparate impacts on older job applicants. This is a truly\nodd reading, especially in light of the statute’s stated purpose\nand the rest of § 623, where Congress grouped employers,\nemployment agencies, and labor organizations together with\nrespect to retaliation, job advertisements, and the use of bona\nfide occupational qualifications and reasonable factors other\nthan age. See Pub. L. 90-202, § 4(d)–(f), 81 Stat. 603 (1967).\n Half a century after the ADEA was enacted, we can see\nthat Congress could have been more precise in phrasing the\ndisputed provision. The majority errs, though, in concluding\nboldly that the text “leaves room for only one interpretation.”\nAnte at 8. The majority naively puts on blinders, considers\nonly the language of the ADEA in isolation, and, as we’ll see,\nignores precedent, legislative history, and practical conse-\nquences to offer one cramped reading for the scope of\n§ 623(a). The text alone does not provide sufficient grounds\nfor choosing between two readings of one of the statute’s most\nimportant protections, one that protects outside job appli-\ncants, and one that excludes them.\nII. Griggs, Title VII, and the ADEA\n A. Griggs and “Job-Seekers”\n The most reliable basis for choosing between these two\nreadings of the statutory text is to follow the Supreme Court’s\ninterpretation of identical language in Title VII of the Civil\nRights Act of 1964 in Griggs v. Duke Power, 401 U.S. at 430–31.\n\n32 No. 17-1206\n\nIn Griggs, the Court held that the language of Title VII as en-\nacted in 1964 included disparate-impact protection for both\njob-seekers and current employees seeking promotions. That\nauthoritative construction of identical language should con-\ntrol here. See Smith, 544 U.S. at 233–38 (applying Griggs to\n§ 623(a)(2) in ADEA); Texas Dep’t of Housing and Community\nAffairs, 135 S. Ct. at 2518 (applying analysis of identical statu-\ntory language in Griggs (Title VII) and Smith (ADEA) to inter-\npret parallel disparate-impact provision in Fair Housing Act);\nsee also, e.g., Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 65\n(1987) (field preemption applies to ERISA because Congress\ncopied ERISA’s jurisdictional language from Labor Manage-\nment Relations Act, to which field preemption applied).\n 1. Parallel Statutory Texts\n The ADEA’s § 623(a)(2) tracks word-for-word the parallel\nprovision for race, sex, religious, and national origin discrim-\nination in Title VII of the Civil Rights Act of 1964, as it was\nenacted in 1964, as it stood when the ADEA was enacted, and\nas it stood when Griggs was decided. Here’s the original lan-\nguage of Title VII’s parallel disparate-treatment and dispar-\nate-impact provisions:\n (a) It shall be an unlawful employment practice\n for an employer—\n (1) to fail or refuse to hire or to discharge any\n individual, or otherwise to discriminate against\n any individual with respect to his compensa-\n tion, terms, conditions, or privileges of employ-\n ment, because of such individual’s race, color,\n religion, sex, or national origin; or\n\nNo. 17-1206 33\n\n (2) to limit, segregate, or classify his employ-\n ees in any way which would deprive or tend to\n deprive any individual of employment oppor-\n tunities or otherwise adversely affect his status\n as an employee, because of such individual’s\n race, color, religion, sex, or national origin.\n78 Stat. 255, quoted in Griggs, 401 U.S. at 426 n.1. The only dif-\nference between Title VII’s § 703(a)(2) and the ADEA’s\n§ 623(a)(2) is the substitution of “age” for “race, color, reli-\ngion, sex, or national origin.” That’s why Smith v. City of Jack-\nson described Griggs as “a precedent of compelling im-\nportance” in interpreting the ADEA’s disparate-impact lan-\nguage. 544 U.S. at 234.\n In Griggs, the Supreme Court unanimously held that Title\nVII “proscribes not only overt discrimination but also prac-\ntices that are fair in form, but discriminatory in operation”—\ne.g., practices with disparate impacts against protected\ngroups. Griggs, 401 U.S. at 431. “The touchstone is business\nnecessity,” the Court explained, as “the very purpose of title\nVII is to promote hiring on the basis of job qualifications, ra-\nther than on the basis of race or color.” Id. at 431, 434, quoting\n110 Cong. Rec. 7247 (1964).\n The majority contends Griggs offers no guidance here be-\ncause “nothing about the case, brought as it was by employees\nof Duke Power and not outside applicants, required the Court\nto answer th[e] question” whether Title VII’s disparate impact\nprovision extended to job applicants. Ante at 10. The majority\ntreats the Supreme Court’s references in Griggs to hiring as\ncareless slips of the pen. As a general rule, that is not how\nlower federal courts should read Supreme Court opinions.\n\n34 No. 17-1206\n\nMore specifically, a closer look at Griggs shows that the ma-\njority’s approach is 180 degrees off course.\n 2. The Facts of Griggs\n Beyond reasonable dispute, the Griggs holding included\njob applicants. The majority ignores the fact that Griggs was a\nclass action. The district court had certified a class “defined as\nthose Negroes presently employed, and who subsequently\nmay be employed, at [Duke Power’s plant] and all Negroes\nwho may hereafter seek employment”—i.e., job applicants. Griggs\nv. Duke Power Co., 292 F. Supp. 243, 244 (M.D.N.C. 1968) (em-\nphasis added). After remand from the Supreme Court, the\ndistrict court enjoined Duke Power from, among other prac-\ntices, “administering any personnel or aptitude tests or re-\nquiring any formal educational background … as a condition\nof consideration for employment or promotion or transfer.”\nGriggs v. Duke Power Co., 1972 WL 215 at 1 (Sept. 25, 1972)\n(emphasis added). Of course the Supreme Court’s holding ap-\nplied to job applicants.\n And that was for good reason. The Griggs class challenged\nemployment practices that had the effect of segregating the\nworkforce. Duke Power classified its employees into two\nmain groups: (1) the “inside departments,” historically staffed\nby white employees, with higher pay and responsible for\ntasks such as operating the boilers and maintaining the plant\nequipment; and (2) the Labor Department, the lowest-wage\nunit, “responsible generally for the janitorial services” and\nhistorically staffed by black employees. Griggs v. Duke Power\nCo., 420 F.2d 1225, 1245–46 (4th Cir. 1970) (Sobeloff, J., dissent-\ning); id. at 1228–29 (majority). Before the civil rights move-\nment, white and black employees (within their respective seg-\nregated departments) had been hired and promoted with\n\nNo. 17-1206 35\n\nmiddle school levels of education or less, and certainly with-\nout high school diplomas; there was no indication that any\nparticular level of formal education was needed to work at the\npower plant. Id. at 1245–46 (dissent).\n As the civil rights movement picked up steam, Duke\nPower “initiated a new policy as to hiring and advancement,”\nrequiring “a high school education or its equivalent … for all\nnew employees, except as to those in the Labor Department.”\nId. at 1228–29 (majority) (emphasis added). On the day Title\nVII took effect, Duke Power “added a further requirement for\nnew employees”—the passage of “two professionally prepared\naptitude tests, as well as to have a high school diploma.”\nGriggs, 401 U.S. at 428 (emphasis added). All existing employ-\nees (white and black) were grandfathered in. Only new Labor\nDepartment employees could still be hired without having to\nmeet the requirements. Griggs, 420 F.2d at 1245–46 (dissent).3\n Notwithstanding the new rule, if an “inside” position\nopened, the grandfathered white employees from “inside de-\npartments” without high school diplomas faced “no re-\nstriction on transfer from any of the inside departments to the\nother two inside departments.” Id. at 1246 (Sobeloff, J., dis-\nsenting). It was “only the outsiders” (e.g., entirely new appli-\ncants or black Labor Department employees) who “must meet\nthe questioned criteria.” Id. This internal employee classifica-\n\n\n\n 3 To be precise, the coal handling department was the one unit staffed\n\nby white employees that had been subject to the high school diploma re-\nquirement for transfer. The aptitude tests were offered at the coal employ-\nees’ request as “a means of escaping from that department” and were then\nmade available to employees in the Labor Department. Griggs, 420 F.2d at\n1229; Griggs, 401 U.S. at 427–28.\n\n36 No. 17-1206\n\ntion policy therefore put the black Labor Department employ-\nees in the same position as outside applicants. Consequently,\n“four years after the passage of Title VII, [the Duke power\nplant] look[ed] substantially like it did before 1965. The Labor\nDepartment [wa]s all black; the rest [wa]s virtually lily-\nwhite.” Id. at 1247.\n Thus, it made no legal difference that the named class rep-\nresentatives were existing Labor Department employees chal-\nlenging their restricted ability to transfer (read: apply) to the\nhigher-paying units staffed with white employees. The\nCourt’s legal analysis was not limited to intra-company trans-\nfers: all new applicants and the Labor Department plaintiffs\nhad to meet Duke’s educational and testing standards to ap-\nply for non-janitorial open positions. Griggs, 401 U.S. at 425–\n28.\n 3. The Supreme Court’s Analysis\n Thus it was neither accidental nor surprising that the Su-\npreme Court framed the issue as whether an employer could\nrequire a high school education or passing a general intelli-\ngence test as “a condition of employment in or transfer to\njobs,” id. at 426, signaling that the disparate-impact provision\napplied to both current employees and outside job applicants.\nThe opinion also referred to the “hiring and assigning of em-\nployees” and to “tests or criteria for employment or promo-\ntion.” Id. at 427, 431 (emphasis added). Even more clearly,\nwriting for the unanimous Court, Chief Justice Burger ex-\nplained:\n Congress has now provided that tests or cri-\n teria for employment or promotion may not\n provide equality of opportunity merely in the\n\nNo. 17-1206 37\n\n sense of the fabled offer of milk to the stork and\n the fox. On the contrary, Congress has now re-\n quired that the posture and condition of the job-\n seeker be taken into account. It has—to resort\n again to the fable—provided that the vessel in\n which the milk is proffered be one all seekers can\n use. The Act proscribes not only overt discrimi-\n nation but also practices that are fair in form,\n but discriminatory in operation.\nId. at 431 (emphasis added). The Court framed the issue and\nits holding as applying to the use of aptitude and personality\ntests for both hiring and promotion decisions because those\nwere the facts at issue. A decision that applied only to intra-\nDuke transfers, as the majority reads it now, would have\nmissed the whole point of plaintiffs’ case.\n Everyone understood that Griggs was the case testing dis-\nparate-impact coverage nationally. Given the class definition\nthat included future job applicants, all judicial officers, par-\nties, and amici understood that the stakes included protection\nfor job applicants.4 The amicus brief for the United States ar-\ngued that the Court should hold that Title VII did not permit\n\n\n 4 Judge Sobeloff’s dissent in the Fourth Circuit was prescient: “The\ndecision we make today is likely to be as pervasive in its effect as any we\nhave been called upon to make in recent years.” Griggs, 420 F.2d at 1237.\nHe continued: “The statute is unambiguous” in prohibiting “‘objective’ or\n‘neutral’ standards that favor whites but do not serve business needs.” Id.\nat 1238. After all, “[n]o one can doubt that [a] requirement would be inva-\nlid” if an employer issued the “neutral” criteria that “all applicants for em-\nployment shall have attended a particular type of school,” but “the speci-\nfied schools were only open to whites” and “taught nothing of particular\nsignificance to the employer’s needs.” Id. (emphasis added).\n\n38 No. 17-1206\n\n“an employer to require completion of high school or passage\nof certain general intelligence tests as a condition of eligibility\nfor employment in, or transfer to, jobs formerly reserved only\nfor whites” when these new requirements “disqualif[ied] Ne-\ngroes at a substantially higher rate than whites” and were not\n“shown to be necessary for successful performance of the\njobs.” Griggs v. Duke Power Co., Brief for the United States as\nAmicus Curiae at 2, 1970 WL 122637 (Sept. 4, 1970) (emphasis\nadded). On the other side, the Chamber of Commerce cau-\ntioned that the “subject matter of the instant case—the utili-\nzation of educational or test requirements to select employees\nfor hiring or promotion—is a matter of significant national\nconcern.” Brief Amicus Curiae on Behalf of the Chamber of\nCommerce of the United States of America at 1–2, 1970 WL\n122547 (Oct. 14, 1970) (emphasis added).5\n Against this background, there can be no serious doubt\nthat Griggs recognized disparate-impact protection for both\ncurrent employees and job applicants. Even the Court’s take-\naway instructions for employers also addressed hiring: “Con-\ngress has now required that the posture and condition of the\njob-seeker be taken into account. … If an employment practice\nwhich operates to exclude Negroes cannot be shown to be re-\nlated to job performance, the practice is prohibited.” 401 U.S.\nat 431. And this was so despite the fact that the Court was\nconfronted with the same textual differences in Title VII that\n\n\n 5The Chamber of Commerce attorney also talked about hiring in oral\nargument: “We’re talking about objective means of choosing which em-\nployee should fit in to a particular job or which employee should be hired in\nthe first place….” Transcript of Oral Argument, Griggs, 401 U.S. 424 (No.\n70-124), available at http://www.oyez.org/cases/1970-1979/1970/1970_124\n(emphasis added).\n\nNo. 17-1206 39\n\nwe face in the ADEA today: the explicit reference to “hiring”\nin paragraph (a)(1), its omission in (a)(2), and the phrase “or\notherwise adversely affect his status as an employee” in (a)(2).\n The majority in this case therefore has its facts exactly\nbackwards in asserting that “[n]owhere in Griggs did the\nCourt state that its holding extended to job applicants.” Ante\nat 9. One cannot reasonably read hiring and job applicants out\nof the opinion. After Griggs, no competent lawyer would have\ncounseled employers that they were prohibited from basing\nonly intra-company transfers and promotions on “neutral”\nbut non-job-related tests, but remained free to use the same\ntests when hiring new employees.\n B. Griggs’ Aftermath and Title VII’s 1972 Amendment\n 1. Later Judicial Treatment of Griggs\n Unlike the majority here, courts, employers, and scholars\ntook Griggs at its word that its holding was broad and not lim-\nited to intra-company transfers and promotions. Within two\nyears, a “plethora of prominent and forceful federal court rul-\nings—from district court judges to the Supreme Court but\nperhaps most pointedly from the courts of appeal—\nhad already won … sweepingly wide proactive employer\ncompliance with Title VII’s strictures.” David J. Garrow, To-\nward a Definitive History of Griggs v. Duke Power Co., 67 Vand.\nL. Rev. 197, 230 (2014).\n Later Supreme Court decisions continued to read Griggs\nas governing hiring practices. E.g., Albemarle Paper Co. v.\nMoody, 422 U.S. 405, 427 (1975) (“Like the employer in Griggs,”\nthe paper company defendant required “[a]pplicants for hire”\nto achieve certain test scores); id. at 425 (after Griggs, the “com-\nplaining party or class” must show “that the tests in question\n\n40 No. 17-1206\n\nselect applicants for hire or promotion in a racial pattern”) (em-\nphasis added); Dothard v. Rawlinson, 433 U.S. 321, 329 (1977)\n(explaining that Griggs and Albemarle Paper “make clear that\nto establish a prima facie case of discrimination, a plaintiff\nneed only show that the facially neutral standards in question\nselect applicants for hire in a significantly discriminatory pat-\ntern”); Connecticut v. Teal, 457 U.S. 440, 446 (1982) (although\nrequirements in Griggs “applied equally to white and black\nemployees and applicants, they barred employment opportu-\nnities to a disproportionate number of blacks” and were\ntherefore invalid); Texas Dep’t of Housing, 135 S. Ct. at 2517 (ex-\nplaining that Griggs “held that ‘business necessity’ constitutes\na defense to disparate-impact claims” and did “not prohibit\nhiring criteria with a ‘manifest relationship’ to job perfor-\nmance”) (emphasis added), quoting Griggs, 401 U.S. at 432. In\nshort, lower federal courts have no business dismissing as\ncareless dicta the Griggs references to job applicants.\n 2. Title VII’s 1972 Revision\n None of the Court’s later references to Griggs’ application\nto hiring even mention, let alone rely on, the fact that, as part\nof a major 1972 revision to Title VII, Congress also engaged in\nsome statutory housekeeping and added an express reference\nto “applicants for employment” to the disparate-impact pro-\nvision, § 2000e-2(a)(2). Pub. L. No. 92-261, § 8(a), 86 Stat. 109\n(1972). But the majority, apparently without engaging with\nthe facts of the Griggs litigation or the legislation, opines that\nthe 1972 Amendment actually “reflected Congress’s swift and\nclear desire to extend Title VII’s disparate impact protection to\njob applicants.” Ante at 10 (emphasis added). The facts show\nagain that the majority has it exactly wrong.\n\nNo. 17-1206 41\n\n The year after Griggs, Congress enacted the Equal Employ-\nment Opportunity Act of 1972. It was a major bill designed to\nexpand the powers of the EEOC and the scope of Title VII. But\nnot every provision was important or controversial. The Act\nincluded this minor amendment not to change the law but to\ncodify existing law as decided in Griggs.\n The 1964 Act had confined the EEOC’s role to “investiga-\ntion, persuasion, and conciliation,” and unlike other major\nagencies, it “lacked the authority to issue cease-and-desist or-\nders or to initiate legal action in the federal courts.” Herbert\nHill, The Equal Employment Opportunity Acts of 1964 and 1972,\n2 Berkeley J. Emp. & Labor L. 1, 7–8 (1977). The Department\nof Justice, which did have authority to sue to enjoin employ-\nment discrimination, filed “few suits” and “obtain[ed] only\nminimal benefits for the complainants.” Id. at 29. By the end\nof 1971, the year Griggs was decided, the EEOC was already\n“handicapped by a backlog of more than 23,000 unresolved\ncomplaints of discrimination” and was subject to withering\ncriticism. Id. at 31–33. There was concern that Title VII’s re-\nsults had been “disappointing” and “in most respects, proved\nto be a cruel joke to those complainants who have in good\nfaith turned toward the Federal Government [which] cannot\ncompel compliance”; thus there was general resolve that\n“promises of equal job opportunity made in 1964 must be\nmade realities in 1971.” Id. at 47–48, quoting S. Rep. No. 415,\n92nd Cong., 1st Sess. 8 (1971).\n The EEOC’s limited powers were noted early. Efforts to\nstrengthen it began almost immediately after the 1964 enact-\nment. Id. at 32–33. It was clear, however, “that employers were\nvigorously opposed to any measure designed to increase the\neffectiveness of the law,” and “[b]usiness interests conducted\n\n42 No. 17-1206\n\nan intensive lobbying campaign against the various proposals\nto extend Title VII coverage, provide enforcement power to\nthe EEOC, or strengthen the antidiscrimination statute in any\nway.” Id. at 33.\n This years-long battle culminated in the 1972 Act. The\nAct’s major provisions: authorized the EEOC “to initiate civil\nsuits in federal district courts”; retained the then-controver-\nsial private right of action; created a new Office of General\nCounsel; expanded coverage to a larger number of private\nemployers, most state and local government employees, and\nfederal employees; and deleted the exemption for educational\ninstitutions. Id. at 50–58; Conf. Rep. on H.R. 1746, reprinted in\n118 Cong. Rec. 7166, 7166–69 (March 6, 1972).\n 3. Clarifying the Title VII Disparate-Impact Provision\n Along with these major changes, § 8(a) of the 1972 Act\namended Title VII’s disparate-impact language in § 2000e-\n2(a)(2) to add the reference to “applicants for employment.”\nPub. L. No. 92-261, § 8(a), 86 Stat. 109 (1972). The majority ar-\ngues that, in light of this addition, concluding that Griggs had\nalready covered job applicants “renders the 1972 amendment\na meaningless act of the 92nd Congress.” Ante at 10. Without\nconsidering the facts of the 1972 legislation as a whole, the\nmajority has leaped to the wrong conclusion. It has over-\nlooked the long-recognized difference between substantive\nand clarifying statutory amendments.\n First, Congress was well aware of Griggs. The Court’s\nopinion was mentioned several times in the lengthy legisla-\ntive history—always favorably and typically described in\nterms tracking the discussion of Griggs above. One House re-\nport quoted Griggs to emphasize the importance of disparate\n\nNo. 17-1206 43\n\nimpact protections for “the job seeker” before noting that the\n“provisions of the bill are fully in accord with the decision of\nthe Court.” H.R. Rep. 92-899 at 21–22, reprinted in 118 Cong.\nRec. 2156–57 (March 2, 1972), quoting Griggs, 401 U.S. at 431.\nAnother House report described Griggs as a case “where the\nCourt held that the use of employment tests as determinants\nof an applicant’s job qualification … was in violation of Title\nVII if such tests work a discriminatory effect in hiring pat-\nterns” without a “showing of an overriding business neces-\nsity.” H.R. Rep. 92-238 at 8, reprinted at 1972 U.S.C.C.A.N. at\n2144 (emphasis added).\n Amid the major policy changes in the 1972 Act, the addi-\ntion of “applicants for employment” to the disparate-impact\nprovision was a minor change, mentioned only briefly as in-\ncorporating existing law. The conference committee report to\nthe Senate said that this addition was “merely declaratory of\npresent laws.” 118 Cong. Rec. at 7169. Congress noted its in-\ntention to “make it clear that discrimination against appli-\ncants for employment … is an unlawful employment prac-\ntice” under both clauses of Title VII’s § 2000e-2(a). 118 Cong.\nRec. at 7169. This conference committee report to the Senate\nwas the final report on § 8(a) of H.R. 1746, which added “or\napplicants for employment” to the provision, see 86 Stat. 103,\n109 (approved March 24, 1972), essentially repeating an ear-\nlier Senate report that said this clarifying amendment “would\nmerely be declaratory of present law.” S. Rep. 92-415 at 43\n(Oct. 28, 1971). Beyond these brief mentions, the addition of\n“applicants for employment” appeared not worthy of expla-\nnation at all.6\n\n 6 The House version of the conference committee report contained the\n\ntext of § 8(a) but provided no explanation. See H.R. Rep. 92-899 at 8, 19–\n\n44 No. 17-1206\n\n Consider these sparse comments in context. The recogni-\ntion of disparate-impact liability in Griggs had been contro-\nversial and hard-fought between civil rights advocates and\nemployers. If Congress thought in 1972 that it was changing\nthe law to extend disparate-impact protection to reach job ap-\nplicants, that change surely would have been significant\nenough to mention in the detailed committee reports.\n And beyond Congress’s silence about such a supposedly\nmajor change in the legislation, it beggars belief to think that\nemployer groups would have let such an amendment pass\nwithout mention.7 If, as the majority claims here, Griggs had\nactually left open whether job applicants were covered by Ti-\ntle VII’s disparate impact provision, the Chamber and other\nemployer groups would not have been silent. But they had\nalready fought that battle, and they knew they had lost.\n The majority is right that courts often assume that statu-\ntory amendments are intended to change the law. Ante at 11,\nciting, e.g., United States v. Quality Stores, Inc., 572 U.S. 141, 148\n\n20, reprinted in 92nd Cong., 118 Cong. Rec. 6643, 6645, 6648 (March 2,\n1972). An earlier House report mentioned § 8(a) only in passing in the sec-\ntion-by-section analysis. See id. at 20–22, 30, reprinted in 1972\nU.S.C.C.A.N. at 2155–57, 2165.\n 7\n Just months earlier, the Chamber of Commerce’s attorney had\nargued to the Griggs Court:\n This case is one which is a vital concern to employers, both small and\n large throughout the United States. In today’s labor market, there are\n often many applicants for the job, just as there are many employees\n who desire to be promoted [and] the employer must make a choice …\n often a difficult one.\nTranscript of Oral Argument, Griggs, 401 U.S. 424 (No. 70-124), available\nat http://www.oyez.org/cases/1970-1979/1970/1970_124.\n\nNo. 17-1206 45\n\n(2014). But the majority overlooks the long-recognized reality\nthat many statutory amendments are intended only to clarify\nexisting law, not to change it. E.g., Singer, 1A Sutherland Stat-\nutes and Statutory Construction § 22:34 (7th ed. 2010).\n The distinction is relevant most often in disputes over\nwhether to give an amendment retroactive effect. Substantive\namendments that change the law are rarely given retroactive\neffect, while “clarifying” amendments are routinely given\nsuch effect. See, e.g., United States ex rel. Garbe v. Kmart Corp.,\n824 F.3d 632, 642 (7th Cir. 2016) (collecting cases). In this case,\nthe distinction has a dramatic effect on what the 1972 amend-\nment tells us about the scope of Griggs and the proper inter-\npretation of the original Title VII language, which is identical\nto the ADEA language we interpret here.\n How to tell when an amendment is substantive and when\nonly clarifying? We explained in Garbe:\n In deciding whether an amendment is clarifying\n rather than substantive, we consider\n “[1] whether the enacting body declared that it\n was clarifying a prior enactment; [2] whether a\n conflict or ambiguity existed prior to the\n amendment; and [3] whether the amendment is\n consistent with a reasonable interpretation of\n the prior enactment and its legislative history.”\n824 F.3d at 642, quoting Middleton v. City of Chicago, 578 F.3d\n655, 663–64 (7th Cir. 2009).\n The evidence on all three of these factors shows that the\n1972 amendment to the Title VII disparate-impact language\nwas clarifying, not substantive. As shown above: (1) The en-\nacting body announced that the new language only declared\n\n46 No. 17-1206\n\ncurrent law and was consistent with Griggs. (2) Before the\n1972 amendment, disparate-impact coverage for outside job\napplicants had been established in Griggs; that coverage was\ncertainly no worse than ambiguous. (3) The 1972 amendment\nwas “consistent with a reasonable interpretation of the prior\nenactment and its legislative history.” That’s exactly how the\nSupreme Court had read the language a year earlier in Griggs\nand how the decision was described in the 1972 amendment’s\nlegislative history.\n In short, the facts refute the majority’s unsupported claim\nthat the 1972 amendment showed Congress’s “swift and clear\ndesire to extend Title VII’s disparate impact protection to job\napplicants.” Ante at 10. Without evidence that Congress was\n“extending” Title VII, there is no foundation here for the ma-\njority’s further inference that Congress in 1972 was silently\nendorsing a narrower interpretation of identical language in\nthe ADEA. The ADEA was never mentioned in the larger 1972\nAct itself or in the conference report describing it. The 1972\nAct amended only provisions of the 1964 Act and provides no\nsupport for the majority’s narrower interpretation of the\nADEA.\n C. Griggs and Smith v. City of Jackson\n In a further effort to diminish Griggs, the majority offers\nwhat it calls a “commonsense observation.” If it was so clear\nthat Griggs’ Title VII analysis should apply to the ADEA’s\nidentical disparate-impact language, then it is “very difficult\nto explain why it took the Supreme Court 34 years to resolve\nwhether anyone—employee or applicant—could sue on a dis-\nparate impact theory under the ADEA, as it did in Smith v.\nCity of Jackson, 544 U.S. 228 (2005).” Ante at 8–9. Yet again, the\n\nNo. 17-1206 47\n\nmajority ignores the facts. It’s easy to explain. The Court’s\nopinion in Smith did so.\n After emphasizing Title VII and the ADEA’s “identical\ntext” and “striking” contextual parallels, Smith noted some-\nwhat bemusedly: “Indeed, for over two decades after our de-\ncision in Griggs, the Courts of Appeals uniformly interpreted\nthe ADEA as authorizing recovery on a ‘disparate-impact’\ntheory in appropriate cases.” 544 U.S. at 233–37 & n.5. With-\nout a circuit split over identical statutory language, there had\nbeen no need for the Supreme Court to step in.\n In Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993), how-\never, the Court observed that “we have never decided\nwhether a disparate impact theory of liability is available un-\nder the ADEA” and “we need not do so here.” Id. at 610. A\nconcurring opinion in Hazen Paper emphasized that “nothing\nin the Court’s opinion should be read as incorporating in the\nADEA context the so-called ‘disparate impact’ theory of Title\nVII of the Civil Rights Act of 1964” as “there are substantial\narguments that it is improper to carry over disparate impact\nanalysis from Title VII to the ADEA.” Id. at 618. Those com-\nments finally led to a circuit split on the question.8\n\n\n\n\n 8 A year after Hazen Paper, we held that the ADEA did not permit any\ndisparate-impact liability. EEOC v. Francis W. Parker School, 41 F.3d 1073,\n1075 (7th Cir. 1994). In rejecting the reasoning in Griggs, we mistakenly\nemphasized the textual difference between Title VII and the ADEA, see 41\nF.3d at 1077–78, overlooking the fact that Griggs, decided in 1971, consid-\nered exactly the same disparate-impact language that is in the ADEA. In-\nexplicably, the majority now repeats the same error: “We underscored this\nexact difference 14 years ago in our opinion in Francis W. Parker, and we\ndo so again today”—“The ‘mirror’ provision in the ADEA omits from its\n\n48 No. 17-1206\n\n The Supreme Court then granted review in Smith to re-\nsolve the circuit split.9 Smith endorsed the view that had been\nuniform before Hazen Paper: the ADEA recognizes disparate-\nimpact claims. See 544 U.S. at 237 n.8, 240.\n In fact, Smith cited with approval cases allowing disparate-\nimpact ADEA claims by job applicants and others who did\nnot have, according to the majority here, “status as an em-\nployee.” Id. at 237 n.8, citing Faulkner v. Super Valu Stores, Inc.,\n3 F.3d 1419, 1423–24 (10th Cir. 1993) (laid-off warehouse\nworkers applying for jobs with new buyer of warehouse);\nWooden v. Board of Educ. of Jefferson Cty., 931 F.2d 376, 377 (6th\nCir. 1991) (applicant for full-time teaching positions).10 Smith\n\n\ncoverage, ‘applicants for employment.’” Ante at 13. This was simply not\nso in Griggs.\n 9 The Chamber of Commerce again weighed in, arguing against ex-\ntending Griggs’ disparate-impact analysis to the ADEA. The Chamber had\nstill not, however, hit upon the textual reading argued here, that job ap-\nplicants should be excluded from the ADEA’s disparate-impact provision.\nBrief of Amicus Curiae Chamber of Commerce of the United States of\nAmerica in Support of Respondents, 2004 WL 1905736 at 15 (Aug. 23,\n2004) (conceding that the reasoning of Griggs, which prohibited “segrega-\ntion of departments by race,” “applies equally to the ADEA, which sought\nto eliminate these kinds of express age ‘limits’ and ‘classifications,’ which\nfrequently were used against older workers. E.g. Labor Report at 21 (dis-\ncussing ‘persistent and widespread use of age limits in hiring’).”).\n 10Other earlier cases not cited in Smith had also allowed disparate-\nimpact age claims by job applicants. E.g., Lowe v. Commack Union Free\nSchool Dist., 886 F.2d 1364, 1365–70 (2d Cir. 1989) (laid-off teachers later re-\napplied but were not hired); Geller v. Markham, 635 F.2d 1027, 1030 (2d Cir.\n1980) (upholding jury award for teacher applicant temporarily hired, then\npassed over in favor of younger applicant due to “cost-cutting policy”);\nLeftwich v. Harris-Stowe State College, 702 F.2d 686, 689–90 (8th Cir. 1983)\n(faculty member forced to re-apply for job and not hired).\n\nNo. 17-1206 49\n\nthus seemed to end the questioning of Griggs’ relevance to the\nADEA’s disparate-impact provision. See, e.g., Meacham v.\nKnolls Atomic Power Lab., 554 U.S. 84, 95 (2008) (confirming\nthat § 623(a)(2) covers employment practices with disparate\nimpacts on older workers); Texas Dep’t of Housing, 135 S. Ct. at\n2518.\n Smith did not end the long tug-of-war between employers\nand workers over competing interpretations of civil rights\nlegislation. The authors of Hazen Paper concurred in Smith but\nplanted the seed of today’s dispute. Justice O’Connor, joined\nby Justices Kennedy and Thomas, concurred in the judgment\n“on the ground that disparate impact claims are not cogniza-\nble.” Smith, 544 U.S. at 248. A primary reason, they argued,\nnot to defer to the EEOC’s regulation that treated § 623(a)(2)\nas covering disparate-impact claims, was because the regula-\ntion also read the provision to cover employers’ hiring prac-\ntices—and thus protected applicants for employment. Id. at\n266. The concurrence pointed to the difference in language be-\ntween § 623(a)(1) and (a)(2) and asserted that “only”\n§ 623(a)(1) protects applicants and therefore the EEOC regu-\nlation “must” have read a disputed ADEA provision to “pro-\nvide a defense against claims under [§ 623(a)(1)]—which un-\nquestionably permits only disparate treatment claims.” Id.\nObviously that view did not carry the day in Smith.11\n Still, here we are. The resources that employers deployed\nin Smith to try to avoid all ADEA disparate-impact claims\n\n\n 11 Justice Scalia’s concurrence specifically rejected that reasoning as to\n\nthe EEOC regulation and, since the line drawing between applicants and\ncurrent employees was beyond the scope of Smith itself, expressed his ag-\nnosticism on that issue. Smith, 544 U.S. at 246 n.3.\n\n50 No. 17-1206\n\nhave been repurposed. Now they are deployed in a new cam-\npaign to show that the “plain text” of § 623(a)(2) permits em-\nployers to maintain irrational policies that disadvantage older\nindividuals so long as those individuals have not yet been\nhired by the employer. Today’s majority is not the first circuit\nto bite on this argument. The Eleventh Circuit has beaten us\nto it, ironically producing four opinions on the “plain” mean-\ning of the text. Villareal v. R.J. Reynolds Tobacco Co., 839 F.3d\n958 (11th Cir. 2016) (en banc). We should not adopt this delib-\nerately naïve and ahistorical approach.\nIII. Practical Consequences and Statutory Purpose\n The text and precedent favor the view that job applicants\nmay bring disparate-impact claims under the AEDA. In con-\nstruing ambiguous statutory language, it also makes sense to\nconsider the practical consequences of the different readings\nof § 623(a)(2) and how they fit with the overall statute’s design\nand purpose. E.g., Graham County, 559 U.S. at 299–301 (con-\nsidering practical consequences when determining better\nreading of statute); Dewsnup v. Timm, 502 U.S. 410, 416–20\n(1992) (same); Burwell, 135 S. Ct. at 2489 (same). Those consid-\nerations weigh heavily against the majority here.\n A simple hypothetical shows how improbable and arbi-\ntrary the majority’s reading is. Suppose the majority is correct\nthat § 623(a)(2) applies only to current employees. Imagine\ntwo applicants for the defendant’s senior counsel position\nhere. Both are in their fifties, and both have significantly more\nthan seven years of relevant legal experience. One is Kleber,\nwho does not currently have a job with the defendant. The\nother already works for the defendant but wants a transfer or\npromotion to the senior counsel position. Both are turned\ndown because they have more than the maximum seven years\n\nNo. 17-1206 51\n\nof experience. According to the majority, the inside applicant\ncan sue for a disparate-impact violation, but the outside one\ncannot.\n That result is baffling, especially under a statute with the\nstated purpose “to prohibit arbitrary age discrimination in\nemployment.” 29 U.S.C. § 621(b). And the majority’s view de-\npends entirely on the assumption that the statutory phrase\n“otherwise adversely affect his status as an employee” cannot\npossibly be applied to an individual who is, because of the\nchallenged employment practice, completely denied any status\nas an employee. I cannot imagine that when the ADEA was\nenacted, “a reasonable person conversant with applicable so-\ncial conventions would have understood” the ADEA as draw-\ning the line the majority adopts here. See John F. Manning,\nWhat Divides Textualists from Purposivists?, 106 Colum. L. Rev.\n70, 77 (2006); accord, In re Sinclair, 870 F.2d 1340, 1342 (7th Cir.\n1989) (legislative history may provide context for statutory\nlanguage and “may be invaluable in revealing the setting of\nthe enactment and the assumptions its authors entertained\nabout how their words would be understood”).\n Under the majority’s interpretation, still further arbitrary\nline-drawing will now be needed. Suppose the applicant is\ncurrently employed by a sister subsidiary of the employer.\nDoes she have the right “status as an employee” so that she\ncan assert a disparate impact claim? Should the answer de-\npend on some sort of corporate veil-piercing theory? Or sup-\npose the applicant was recently laid off by the employer and\nchallenges its failure to recall her. Or suppose the applicant\ncurrently has a position through a temporary employment\n\n52 No. 17-1206\n\nagency, working side-by-side with employees. I see no argu-\nable reason to exclude any of these applicants from the dis-\nparate-impact protection of paragraph (a)(2).\n Neither the majority nor the defendant or its amici have\noffered a reason why Congress might have chosen to allow\nthe inside applicant but not the outside applicant to assert a\ndisparate-impact claim. I can’t either. Faced with the arbitrary\nconsequences of drawing this line half a century after Con-\ngress drafted the legislation, the majority shrugs and says tau-\ntologically that it’s “the province of Congress to choose where\nto draw legislative lines and to mark those lines with lan-\nguage.” Ante at 14.12\n Of course, Congress can and often does draw arbitrary\nlines when it wants to do so. When it does, courts enforce\n\n 12Far from offering a reason, defendant defiantly claims that just be-\ncause Congress has drawn the line between “employees” and “appli-\ncants” “for no good reason, and that the line might create hypothesized\nanomalies, [that] is no reason to disregard Congress’ words.” Petition for\nRehearing En Banc, Dkt. 43 at 10 (May 10, 2018). The Chamber of Com-\nmerce amicus brief feints toward ascribing intent to Congress, arguing\nthat foreclosing applicants from recourse was “[o]ne of the careful lines\ndrawn by Congress” because the ADEA “strikes a careful balance between\nprohibiting irrational barriers to employment of older workers and pre-\nserving employers’ ability to adopt sound hiring policies.” Dkt. 19 at 3, 1\n(Sept. 6, 2018). There is no evidence of such a deliberate choice in\n§ 623(a)(2). Under the Chamber’s theory, that “balance” is shifted entirely\nin employers’ favor. An employer can set wildly irrational hiring crite-\nria—such as requiring Twitter, Instagram, and Snapchat proficiency for\nan entry-level position at a fast-food joint, which would likely have a large\ndisparate impact on older workers. As long as that position is not open to\ninternal applicants, that would be a highly effective yet immune “barrier\nto employment of older workers.” That’s not a “careful line.” It’s non-\nsense.\n\nNo. 17-1206 53\n\nthose lines, absent constitutional problems. See, e.g., Stephens\nv. Heckler, 766 F.2d 284, 286 (7th Cir. 1985) (Congress can dic-\ntate outcomes even though “there is no shortage of arbitrari-\nness in disability cases”); First Chicago NBD Corp. v. Comm’r of\nInternal Revenue, 135 F.3d 457, 460 (7th Cir. 1998) (“arbitrari-\nness is everywhere in the tax code, so that an approach to in-\nterpretation that sought to purge the arbitrary from the code\nwould be quixotic”). But when the statutory language is at\nworst ambiguous, see above at 21–27, courts should not em-\nbrace such arbitrary results so at odds with the stated statu-\ntory purpose. See, e.g., Graham County, 559 U.S. at 283, 299–\n301 (False Claims Act); Gustafson v. Alloyd Co., Inc., 513 U.S.\n561, 564, 578 (1995) (Securities Act of 1933); see also, e.g., Ken-\nnedy v. Chemical Waste Mgmt., Inc., 79 F.3d 49, 51 (7th Cir. 1996)\n(Americans with Disabilities Act); Martin v. Luther, 689 F.2d\n109, 114 (7th Cir. 1982) (reaching conclusion about parole rev-\nocation “supported by common sense and an assessment of\nthe practical consequences, which naturally guide our inter-\npretation of legislative enactments”).\n The majority’s arbitrary line undermines the stated pur-\npose of the statute. Statutory purpose here is not a matter of\njudicial inference but of statutory declaration in the text en-\nacted by both Houses of Congress and signed by the Presi-\ndent. Congress enacted the ADEA to address unfair employ-\nment practices that make it harder for older people to find\njobs. 29 U.S.C. § 621(a). That purpose was reflected in a variety\nof statutory provisions, as noted above. In addition to the stat-\nute’s specific reliance on its stated purpose, we know from the\n1965 Department of Labor report that was the catalyst for the\nADEA—known as the Wirtz Report—that Congress had job\napplicants very much in mind. Report of the Secretary of La-\n\n54 No. 17-1206\n\nbor, The Older American Worker: Age Discrimination in Employ-\nment (June 1965), reprinted in U.S. Equal Employment Dis-\ncrimination in Employment Act (1981), Doc. No. 5 (the Wirtz\nReport).\n Under the majority’s reading of § 623(a)(2), the ADEA’s\nprotection of the “employment opportunities” of “any indi-\nvidual” prohibits employment practices with disparate im-\npacts in firing older workers and in promoting, paying, and\nmanaging them, but not in hiring them! Congress was con-\ncerned about all of these forms of discrimination. Wirtz Re-\nport at 21–22; see also Employment of Older Workers, 111 Cong.\nRec. 15518, 15518–19 (1965) (describing Wirtz Report as urg-\ning “a clear, unequivocal national policy against hiring that\ndiscriminates against older workers” and referring to “job\nopenings,” and “applicants over 45”); EEOC v. Wyoming, 460\nU.S. 226, 231 (1983) (observing that Wirtz Report concluded\n“arbitrary age discrimination was profoundly harmful … [be-\ncause] it deprived the national economy of the productive la-\nbor of millions … [and] substantially increased costs in unem-\nployment insurance and federal Social Security benefits” for\nolder workers who could not land a job).\n A central goal—arguably the most central goal—of the\nstatute was to prevent age discrimination in hiring. Congress\nand the Wirtz Report explained that the problem stemmed\nnot just from explicit bias against older workers (i.e., dispar-\nate treatment), but also from “[a]ny formal employment\nstandard” neutral on its face yet with adverse effects on oth-\nerwise qualified older applicants. Wirtz Report at 3; see also\nSmith, 544 U.S. at 235 n.5. Those neutral standards and other\nthoughtless or even well-intentioned employment practices\ncan be addressed only with a disparate-impact theory under\n\nNo. 17-1206 55\n\n§ 623(a)(2). The report made clear that the older people who\nsuffered the disparate impact from such practices were those\ntrying to get hired in the first place. The report explained that\ndespite the beneficial effects of such policies, “ironically, they\nsometimes have tended to push still further down the age at\nwhich employers begin asking whether or not a prospective em-\nployee is too old to be taken on.” Wirtz Report at 2 (emphasis\nadded).\n Against this evidence of contemporary understandings,\nthe majority offers no plausible policy reasons, but only its\nwooden and narrow textual interpretation, which is anything\nbut inevitable. Wearing blinders that prevent sensible inter-\npretation of ambiguous statutory language, the majority\nadopts the improbable view that the Act outlawed employ-\nment practices with disparate impacts on older workers, but\nexcluded from that protection everyone not already working\nfor the employer in question.\n * * *\n Given the statutory language in § 623(a)(2), the interpreta-\ntion of that language in Smith and identical language in\nGriggs, the practical consequences of the interpretive choice,\nand the absence of any policy rationale for barring outside job\napplicants from raising disparate-impact claims, we should\nreject the improbable and arbitrary distinction adopted by the\nmajority. We should hold that outside job applicants like\nKleber may bring disparate-impact claims of age discrimina-\ntion. I respectfully dissent.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4361269/", "author_raw": "HAMILTON, Circuit Judge, dissenting"}]}	WOOD	BAUER	FLAUM	2	EASTERBROOK; KANNE; ROVNER; SYKES; HAMILTON; BARRETT; BRENNAN; SCUDDER	{}	5	3	0	2	null	https://www.courtlistener.com/api/rest/v4/clusters/4584016/	Published	1	1	1	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Dale E. KLEBER, Plaintiff-Appellant, v. CAREFUSION CORPORATION, Defendant-Appellee.\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-23\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-1206\nDALE E. KLEBER,\n Plaintiff-Appellant,\n v.\n\nCAREFUSION CORPORATION,\n Defendant-Appellee.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 1:15-cv-1994 — Sharon Johnson Coleman, Judge.\n ____________________\n\n ARGUED SEPTEMBER 6, 2018 — DECIDED JANUARY 23, 2019\n ____________________\n\n Before WOOD, Chief Judge, and BAUER, FLAUM,\nEASTERBROOK, KANNE, ROVNER, SYKES, HAMILTON, BARRETT,\nBRENNAN, SCUDDER, and ST. EVE, Circuit Judges.\n SCUDDER, Circuit Judge. After Dale Kleber unsuccessfully\napplied for a job at CareFusion Corporation, he sued for age\ndiscrimination on a theory of disparate impact liability. The\ndistrict court dismissed his claim, concluding that § 4(a)(2) of\nthe Age Discrimination in Employment Act did not authorize\njob applicants like Kleber to bring a disparate impact claim\n\n2 No. 17-1206\n\nagainst a prospective employer. A divided panel of this court\nreversed. We granted en banc review and, aﬃrming the dis-\ntrict court, now hold that the plain language of § 4(a)(2) makes\nclear that Congress, while protecting employees from dispar-\nate impact age discrimination, did not extend that same pro-\ntection to outside job applicants. While our conclusion is\ngrounded in § 4(a)(2)’s plain language, it is reinforced by the\nADEA’s broader structure and history.\n I\n In March 2014, Kleber, an attorney, applied for a senior in-\nhouse position in CareFusion’s law department. The job de-\nscription required applicants to have “3 to 7 years (no more\nthan 7 years) of relevant legal experience.” Kleber was 58 at\nthe time he applied and had more than seven years of perti-\nnent experience. CareFusion passed over Kleber and instead\nhired a 29-year-old applicant who met but did not exceed the\nprescribed experience requirement.\n Kleber responded by bringing this action and pursuing\nclaims for both disparate treatment and disparate impact un-\nder § 4(a)(1) and § 4(a)(2) of the ADEA. Relying on our prior\ndecision in EEOC v. Francis W. Parker School, 41 F.3d 1073 (7th\nCir. 1994), the district court granted CareFusion’s motion to\ndismiss Kleber’s disparate impact claim, reasoning that the\ntext of § 4(a)(2) did not extend to outside job applicants.\nKleber then voluntarily dismissed his separate claim for dis-\nparate treatment liability under § 4(a)(1). This appeal fol-\nlowed.\n\nNo. 17-1206 3\n\n II\n A\n We begin with the plain language of § 4(a)(2). “If the stat-\nutory language is plain, we must enforce it according to its\nterms.” King v. Burwell, 135 S. Ct. 2480, 2489 (2015). This pre-\ncept reinforces the constitutional principle of separation of\npowers, for our role is to interpret the words Congress enacts\ninto law without altering a statute’s clear limits. See Puerto\nRico v. Franklin Cal. Tax-Free Trust, 136 S. Ct. 1938, 1949 (2016).\n Section 4(a)(2) makes it unlawful for an employer\n to limit, segregate, or classify his employees in\n any way which would deprive or tend to de-\n prive any individual of employment opportuni-\n ties or otherwise adversely aﬀect his status as an\n employee, because of such individual’s age.\n29 U.S.C. § 623(a)(2).\n By its terms, § 4(a)(2) proscribes certain conduct by em-\nployers and limits its protection to employees. The prohibited\nconduct entails an employer acting in any way to limit, segre-\ngate, or classify its employees based on age. The language of\n§ 4(a)(2) then goes on to make clear that its proscriptions ap-\nply only if an employer’s actions have a particular impact—\n“depriv[ing] or tend[ing] to deprive any individual of em-\nployment opportunities or otherwise adversely aﬀect[ing] his\nstatus as an employee.” This language plainly demonstrates\nthat the requisite impact must befall an individual with “sta-\ntus as an employee.” Put most simply, the reach of § 4(a)(2)\ndoes not extend to applicants for employment, as common\ndictionary definitions confirm that an applicant has no “status\nas an employee.” See Merriam-Webster’s Collegiate\n\n4 No. 17-1206\n\nDictionary 60, 408 (11th ed. 2003) (defining “applicant” as\n“one who applies,” including, for example, “a job [appli-\ncant],” while defining “employee” as “one employed by an-\nother usu[ally] for wages or salary and in a position below the\nexecutive level”).\n Subjecting the language of § 4(a)(2) to even closer scrutiny\nreinforces our conclusion. Congress did not prohibit just con-\nduct that “would deprive or tend to deprive any individual of\nemployment opportunities.” It went further. Section 4(a)(2)\nemploys a catchall formulation—“or otherwise adversely af-\nfect his status as an employee”—to extend the proscribed con-\nduct. Congress’s word choice is significant and has a unifying\neﬀect: the use of “or otherwise” serves to stitch the prohibi-\ntions and scope of § 4(a)(2) into a whole, first by making clear\nthat the proscribed acts cover all conduct “otherwise af-\nfect[ing] his status as an employee,” and, second, by limiting\nthe reach of the statutory protection to an individual with\n“status as an employee.” See Villarreal v. R.J. Reynolds Tobacco\nCo., 839 F.3d 958, 964 (11th Cir. 2016) (en banc) (interpreting\n§ 4(a)(2) the same way and explaining that the “or otherwise”\nlanguage “operates as a catchall: the specific items that pre-\ncede it are meant to be subsumed by what comes after the ‘or\notherwise’”).\n Kleber begs to diﬀer, arguing that § 4(a)(2)’s coverage\nextends beyond employees to applicants for employment. He\ngets there by focusing on the language in the middle of\n§ 4(a)(2)—“deprive or tend to deprive any individual of\nemployment opportunities”—and contends that the use of\nthe expansive term “any individual” shows that Congress\nwished to cover outside job applicants. If the only question\nwere whether a job applicant counts as “any individual,”\n\nNo. 17-1206 5\n\nKleber would be right. But time and again the Supreme Court\nhas instructed that statutory interpretation requires reading a\ntext as a whole, and here that requires that we refrain from\nisolating two words when the language surrounding those\ntwo words supplies essential meaning and resolves the\nquestion before us. See, e.g., United Sav. Ass’n of Tex. v. Timbers\nof Inwood Forest Assocs., Ltd., 484 U.S. 365, 371 (1988)\n(describing statutory construction as a “holistic endeavor”);\nsee also K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988)\n(directing courts to consider “the language and design of the\nstatute as a whole”); Trustees of Chicago Truck Drivers v.\nLeaseway Transp. Corp., 76 F.3d 824, 828 (7th Cir. 1996)\n(emphasizing the same points and explaining that the\nmeaning of statutory text comes from reading language in\ncontext and not words in insolation).\n Reading § 4(a)(2) in its entirety shows that Congress em-\nployed the term “any individual” as a shorthand reference to\nsomeone with “status as an employee.” This construction is\nclear from Congress’s use of language telling us that the pro-\nvision covers “any individual” deprived of an employment\nopportunity because such conduct “adversely aﬀects his sta-\ntus as an employee.” Put diﬀerently, ordinary principles of\ngrammatical construction require connecting “any individ-\nual” (the antecedent) with the subsequent personal possessive\npronoun “his,” and upon doing so we naturally read “any in-\ndividual” as referring and limited to someone with “status as\nan employee.” See Flora v. United States, 362 U.S. 145, 150\n(1960) (“This Court naturally does not review congressional\nenactments as a panel of grammarians; but neither do we re-\ngard ordinary principles of English prose as irrelevant to a\nconstruction of those enactments.”). The clear takeaway is\nthat a covered individual must be an employee.\n\n6 No. 17-1206\n\n Our conclusion becomes ironclad the moment we look be-\nyond § 4(a)(2) and ask whether other provisions of the ADEA\ndistinguish between employees and applicants. See Mount\nLemmon Fire Dist. v. Guido, 139 S. Ct. 22, 24 (2018) (endorsing\nthis same approach when interpreting the ADEA’s various\ndefinitions of “employer”). We do not have to look far to see\nthat the answer is yes.\n Right next door to § 4(a)(2) is § 4(a)(1), the ADEA’s dispar-\nate treatment provision. In § 4(a)(1), Congress made it unlaw-\nful for an employer “to fail or refuse to hire or to discharge any\nindividual or otherwise discriminate against any individual\nwith respect to his compensation, terms, conditions, or privi-\nleges of employment, because of such individual’s age.” 29\nU.S.C. § 623(a)(1) (emphasis added). All agree that § 4(a)(1),\nby its terms, covers both employees and applicants. See, e.g.,\nKralman v. Ill. Dep’t of Veterans’ Aﬀairs, 23 F.3d 150, 152–53 (7th\nCir. 1994) (treating an applicant’s right to bring a claim under\n§ 4(a)(1) as unquestioned). Compelling this consensus is\n§ 4(a)(1)’s use of the words “to fail or refuse to hire or to dis-\ncharge,” which make clear that “any individual” includes\nsomeone seeking to be hired. 29 U.S.C. § 623(a)(1).\n Yet a side-by-side comparison of § 4(a)(1) with § 4(a)(2)\nshows that the language in the former plainly covering appli-\ncants is conspicuously absent from the latter. Section 4(a)(2)\nsays nothing about an employer’s decision “to fail or refuse to\nhire … any individual” and instead speaks only in terms of\nan employer’s actions that “adversely aﬀect his status as an\nemployee.” We cannot conclude this diﬀerence means noth-\ning: “when ‘Congress includes particular language in one sec-\ntion of a statute but omits it in another’—let alone in the very\nnext provision—the Court presumes that Congress intended\n\nNo. 17-1206 7\n\na diﬀerence in meaning.” Loughrin v. United States, 573 U.S.\n351, 358 (2014) (quoting Russello v. United States, 464 U.S. 16,\n23 (1983)).\n There is even more. A short distance away from § 4(a)(2)\nis § 4(c)(2), which disallows labor organizations from engag-\ning in particular conduct. Section 4(c)(2), in pertinent part,\nmakes it unlawful for a labor organization\n to limit, segregate, or classify its membership …\n in any way which would deprive or tend to de-\n prive any individual of employment opportuni-\n ties … or otherwise adversely aﬀect his status as\n an employee or as an applicant for employment, be-\n cause of such individualʹs age.\n29 U.S.C. § 623(c)(2) (emphasis added).\n The parallel with § 4(a)(2) is striking: both provisions de-\nfine the prohibited conduct in terms of action that “would de-\nprive or tend to deprive any individual of employment op-\nportunities,” only then to include the “or otherwise adversely\naﬀect” catchall language. But there is a big diﬀerence between\nthe two provisions: § 4(c)(2)’s protection extends to any indi-\nvidual with “status as an employee or as an applicant for em-\nployment,” whereas Congress limited § 4(a)(2)’s reach only to\nsomeone with “status as an employee.”\n Consider yet another example. In § 4(d), Congress ad-\ndressed employer retaliation by making it “unlawful for an\nemployer to discriminate against any of his employees or appli-\ncants for employment” because such an individual has opposed\ncertain unlawful practices of age discrimination. 29 U.S.C.\n§ 623(d) (emphasis added). Here, too, the distinction between\n“employees” and “applicants” jumps oﬀ the page.\n\n8 No. 17-1206\n\n Each of these provisions distinguishes between employees\nand applicants. It is implausible that Congress intended no\nsuch distinction in § 4(a)(2), however, and instead used the\nterm employees to cover both employees and applicants. To\nconclude otherwise runs afoul of the Supreme Court’s ad-\nmonition to take statutes as we find them by giving eﬀect to\ndiﬀerences in meaning evidenced by diﬀerences in language.\nSee Mount Lemmon Fire Dist., 139 S. Ct. at 26 (declining the\ndefendant’s invitation to take language from one part of a sen-\ntence and then “reimpose it for the portion” of the sentence in\nwhich Congress omitted the same language); see also Dep’t of\nHomeland Sec. v. MacLean, 135 S. Ct. 913, 919 (2015) (explaining\nthat “Congress generally acts intentionally when it uses par-\nticular language in one section of a statute but omits it in an-\nother”).\n In the end, the plain language of § 4(a)(2) leaves room for\nonly one interpretation: Congress authorized only employees\nto bring disparate impact claims.\n B\n Kleber urges a diﬀerent conclusion in no small part on the\nbasis of the Supreme Court’s 1971 decision in Griggs v. Duke\nPower Co., 401 U.S. 424, where the Court interpreted\n§ 703(a)(2) of Title VII and held that disparate impact was a\nviable theory of liability. Indeed, Kleber goes so far as to say\nGriggs—a case where the Court considered language in Title\nVII that at the time paralleled the language we consider\nhere—controls and mandates a decision in his favor. We dis-\nagree.\n A commonsense observation is warranted at the outset. If\nKleber is right that Griggs, a Title VII case, compels the\n\nNo. 17-1206 9\n\nconclusion that § 4(a)(2) of the ADEA authorizes outside job\napplicants to bring a disparate impact claim, we find it very\ndiﬃcult to explain why it took the Supreme Court 34 years to\nresolve whether anyone—employee or applicant—could sue\non a disparate impact theory under the ADEA, as it did in\nSmith v. City of Jackson, 544 U.S. 228 (2005). There was no need\nfor the Court to decide Smith if (all or part of) the answer came\nin Griggs. And when the Court did decide Smith the Justices’\nseparate opinions recognized the imperative of showing\nimpact to an individual’s “status as an employee” when\ndiscerning the reach of § 4(a)(2). See id. at 235–36, 236 n.6\n(plurality opinion); see id. at 266 (O’Connor, J., concurring,\njoined by Kennedy & Thomas, JJ.).\n Kleber’s position fares no better within the four corners of\nGriggs itself. Several African-American employees of Duke\nPower challenged the company’s practice of conditioning cer-\ntain job transfers and promotions on graduating from high\nschool and passing a standardized aptitude test. See 401 U.S.\nat 426. The employees sued under § 703(a) of Title VII, a pro-\nvision that in 1971 mirrored the present language of § 4(a)(2)\nof the ADEA. See id. at 426 n.1. The Court held that § 703(a)(2)\nprohibits disparate impact discrimination by proscribing\n“practices that are fair in form, but discriminatory in opera-\ntion” unless an employer can show that the challenged prac-\ntice is “related to job performance” and thus a “business ne-\ncessity.” Id. at 431.\n Kleber would have us read Griggs beyond its facts by fo-\ncusing on language in a couple of places in the Court’s opin-\nion that he sees as covering employees and applicants alike.\nWe decline the invitation. Nowhere in Griggs did the Court\nstate that its holding extended to job applicants. And that\n\n10 No. 17-1206\n\nmakes perfect sense because nothing about the case, brought\nas it was by employees of Duke Power and not outside appli-\ncants, required the Court to answer that question. The lan-\nguage that Kleber insists on reading in isolation must be read\nin context, and the totality of the Griggs opinion makes clear\nthat the Court answered whether Duke Power’s African-\nAmerican employees could bring a claim for disparate impact\nliability based on practices that kept them from pursuing dif-\nferent, higher-paying jobs within the company.\n What happened a year after Griggs cements our conclu-\nsion. In 1972, Congress amended § 703(a)(2) of Title VII—the\nprovision at issue in Griggs—by adding language to expressly\ninclude “applicants for employment.” Pub. L. No. 92-261,\n§ 8(a), 86 Stat. 109 (1972). This amendment occurred in the im-\nmediate wake of Griggs and, in this way, reflected Congress’s\nswift and clear desire to extend Title VII’s disparate impact\nprotection to job applicants. There was no need for Congress\nto amend § 703(a)(2) if the provision had always covered job\napplicants and especially if the Supreme Court had just said\nso in Griggs. To conclude otherwise renders the 1972 amend-\nment a meaningless act of the 92nd Congress, and we are re-\nluctant to conclude that substantive changes to statutes reflect\nidle acts.\n The Supreme Court endorsed this precise course of analy-\nsis—giving eﬀect to “Congress’s decision to amend Title VII’s\nrelevant provisions but not make similar changes to the\nADEA”—in Gross v. FBL Financial Servs., Inc., 557 U.S. 167, 174\n(2009). The Court there considered whether a plaintiﬀ suing\nunder § 4(a)(1) of the ADEA must establish that age was the\nbut-for cause of an employer’s adverse action. See id. at 173.\nThe plaintiﬀ urged the Court to adopt Title VII’s lesser\n\nNo. 17-1206 11\n\nstandard of race being only a motivating factor in the chal-\nlenged decision. See id. Paramount to the Court’s conclusion\nthat an ADEA plaintiﬀ must prove but-for causation were tex-\ntual diﬀerences between the ADEA and Title VII brought\nabout by Congress’s amendments to Title VII. See id. at 174\n(explaining that “Congress neglected to add such a [motivat-\ning-factor] provision to the ADEA when it amended Title VII\n[in 1991]” and emphasizing that “[w]hen Congress amends\none statutory provision but not another, it is presumed to\nhave acted intentionally”). The Court’s instruction was clear:\nprior decisions interpreting Title VII “do not control our con-\nstruction of the ADEA” where the text of the two statutes are\n“materially diﬀerent.” Id. at 173.\n And so it is here. Congress’s choice to add “applicants” to\n§ 703(a)(2) of Title VII but not to amend § 4(a)(2) of the ADEA\nin the same way is meaningful. Gross teaches that we cannot\nignore such diﬀerences in language between the two enact-\nments. And, at the risk of understatement, Gross is far from an\naberration in statutory construction. A mountain of precedent\nsupports giving eﬀect to statutory amendments. See, e.g.,\nUnited States v. Quality Stores, Inc., 572 U.S. 141, 148 (2014)\n(quoting Stone v. INS, 514 U.S. 386, 397 (1995)) (“When Con-\ngress acts to amend a statute, we presume it intends its\namendment to have real and substantial eﬀect.”); Fidelity Fin.\nServs., Inc. v. Fink, 522 U.S. 211, 220–21 (1998) (explaining that\nafter Congress modified the federal statute controlling when\na transfer of a security interest was perfected, “we see no basis\nto say that subsequent amendments removing references to\nstate-law options had the counterintuitive eﬀect of deferring\nto such [state law] options” without unwinding the statutory\namendments); United States v. Wells, 519 U.S. 482, 492–93\n(1997) (explaining that after Congress amended the federal\n\n12 No. 17-1206\n\ncriminal statute pertinent to false representations to remove\nany express reference to materiality, “the most likely infer-\nence in these circumstances is that Congress deliberately\ndropped the term ‘materiality’ without intending materiality\nto be an element of [18 U.S.C.] § 1014”); Stone, 514 U.S. at 397–\n98 (explaining that after Congress amended the Immigration\nand Naturalization Act, “[t]he reasonable construction [was]\nthat the amendment was enacted as an exception, not just to\nstate an already existing rule”).\n In no way does this analysis downplay Griggs, as our dis-\nsenting colleagues contend. We have approached Griggs as\nbinding precedent and construed its holding not only by\nreading what the Supreme Court’s opinion says (and does not\nsay), but also in light of Congress’s immediately amending\nTitle VII (but not § 4(a)(2) of the ADEA) to cover “applicants”\nas well as the broader development in the law ever since, in-\ncluding with precedents like Smith in 2005 and Gross in 2009.\n The upshot is clear: while Congress amended § 703(a)(2)\nof Title VII in 1972 to cover “applicants for employment,” it\nhas never followed suit and modified § 4(a)(2) of the ADEA in\nthe same way. And this is so despite Congress’s\ndemonstrating, just a few years after Griggs, that it knew how\nto amend the ADEA to expressly include outside job\napplicants. See Villarreal, 839 F.3d at 979–80 (Rosenbaum, J.,\nconcurring) (observing that Congress amended the ADEA in\n1974 to extend the statute’s reach to federal-government\nemployment, and in doing so, explicitly referenced both\n“employees and applicants for employment” in the new\nprovision, 29 U.S.C. § 633a).\n Today, then, § 703(a)(2) of Title VII diﬀers from § 4(a)(2) in\nat least one material respect: the protections of the former\n\nNo. 17-1206 13\n\nextend expressly to “applicants for employment,” while the\nlatter covers only individuals with “status as an employee.”\nWe underscored this exact diﬀerence 14 years ago in our opin-\nion in Francis W. Parker, and we do so again today. See 41 F.3d\nat 1077 (“The ‘mirror’ provision in the ADEA omits from its\ncoverage, ‘applicants for employment.’”). The plain language\nof § 4(a)(2) controls and compels judgment in CareFusion’s\nfavor.\n C\n Beyond his reliance on Griggs, Kleber invites us to read the\nADEA against the backdrop of Congress’s clear purpose of\nbroadly prohibiting age discrimination. On this score, he\npoints us to the Supreme Court’s decision in Robinson v. Shell\nOil Company, 519 U.S. 337 (1997) and to the report of the\nformer Secretary of the Department of Labor, Willard Wirtz.\n In Robinson, the Court held that § 704(a) of Title VII ex-\ntended not just to “employees” (a term used in § 704(a)), but\nalso to former employees. See id. at 346. The Court empha-\nsized that, while the meaning of “employees” was ambigu-\nous, Title VII’s broader structure made plain that Congress\nintended the term to cover former employees, a construction\nthat furthered Title VII’s broader purposes. None of this helps\nKleber. (Indeed, if anything, Robinson’s clear observation of\nthe distinct and separate meaning of “employees” and “appli-\ncants for employment” in § 704(a) severely undermines\nKleber’s textual argument. See id. at 344.) Robinson, in short,\nprovides direction on how courts— if confronted with statu-\ntory ambiguity—should resolve such ambiguity. There being\nno ambiguity in the meaning of § 4(a)(2) of the ADEA, our\nrole ends—an outcome on all fours with Robinson.\n\n14 No. 17-1206\n\n The Wirtz Report reflected the Labor Department’s\nresponse to Congress’s request for recommended age\ndiscrimination legislation, and a plurality of the Supreme\nCourt in Smith treated the Report as an authoritative signal of\nCongress’s intent when enacting the ADEA. See Smith, 544\nU.S. at 238. We do too.\n Nobody disputes that the Wirtz Report reinforces\nCongress’s clear aim of enacting the ADEA to prevent age\ndiscrimination in the workplace by encouraging the\nemployment of older persons, including older job applicants.\nBut we decline to resolve the question presented here on the\nbasis of broad statutory purposes or, more specifically, to\nforce an interpretation of but one provision of the ADEA\n(here, § 4(a)(2)) to advance the enactment’s full objectives.\n Our responsibility is to interpret § 4(a)(2) as it stands in the\nU.S. Code and to ask whether the provision covers outside job\napplicants. We cannot say it does and remain faithful to the\nprovision’s plain meaning. It remains the province of\nCongress to choose where to draw legislative lines and to\nmark those lines with language. Our holding gives eﬀect to\nthe plain limits embodied in the text of § 4(a)(2).\n The ADEA, moreover, is a wide-ranging statutory scheme,\nmade up of many provisions beyond § 4(a)(2). And a broader\nlook at the statute shows that outside job applicants have\nother provisions at their disposal to respond to age discrimi-\nnation. Section 4(a)(1), for example, prevents an employer\nfrom disparately treating both job applicants and employees\non the basis of age. See 29 U.S.C. § 623(a)(1). Section 4(c)(2),\nprevents a labor organization’s potential age discrimination\nagainst both job applicants and employees. See 29 U.S.C.\n§ 623(c)(2).\n\nNo. 17-1206 15\n\n Today’s decision, while unfavorable to Kleber, leaves\nteeth in § 4(a)(2). The provision protects older employees who\nencounter age-based disparate impact discrimination in the\nworkplace. And Congress, of course, remains free to do what\nthe judiciary cannot—extend § 4(a)(2) to outside job appli-\ncants, as it did in amending Title VII.\n For these reasons, we AFFIRM.\n\n16 No. 17-1206\n[END_CASE]", "role": "user" } ]
4,584,034	UNITED STATES of America, Plaintiff-Appellee, v. Ronald T. COLEMAN, Defendant-Appellant.	United States v. Ronald Coleman	2019-01-23	17-3636	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Wood, Easterbrook, Brennan", "parties": "", "opinions": [{"author": "Diane Pamela Wood", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-3636\nUNITED STATES OF AMERICA,\n Plaintiff-Appellee,\n v.\n\nRONALD T. COLEMAN,\n Defendant-Appellant.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 16-CR-723 — Charles R. Norgle, Judge.\n ____________________\n\n ARGUED SEPTEMBER 24, 2018 — DECIDED JANUARY 23, 2019\n ____________________\n\n Before WOOD, Chief Judge, and EASTERBROOK and\nBRENNAN, Circuit Judges.\n WOOD, Chief Judge. Ronald Coleman is a former Chicago\npolice officer who turned to crime. In June 2014, he was as-\nsigned to a federal drug investigation task force, which was\nabout to execute numerous search and arrest warrants.\nShortly before the operations were set to begin, Coleman tel-\nephoned one of the targets—a high school acquaintance—to\nwarn him about the raid. That call led to a single charge of\n\f2 No. 17-3636\n\nobstruction of justice, in violation of 18 U.S.C. § 1512(c)(2),\nand the end of Coleman’s law-enforcement career when a jury\nconvicted him. Coleman now argues that he is entitled to a\nnew trial for two primary reasons: evidentiary errors, and the\ngovernment’s use of allegedly perjured testimony. He also\nurges that the district court committed procedural and sub-\nstantive errors when selecting his sentence. Because we find\nno prejudicial error in any of the district court’s rulings, we\naffirm both the conviction and the sentence.\n I\n Coleman is a lifelong Chicagoan who grew up to become\nan officer with the Chicago Police Department. In high school,\nhe met cousins Dewan Davis and LaRon Conway. Though\nColeman was not close with either of these men after high\nschool, he maintained a casual friendship with them.\n In 2014, Coleman served on the team conducting a federal\ndrug investigation dubbed Operation Five Leaf Clover (“the\nOperation”). In time, the Operation began to focus on several\npeople whom Coleman knew, including Davis. Although Da-\nvis was never a target of the Operation, he was identified as\nan associate of a heroin supplier named Rodney Bedenfield.\nIn June 2014 the Operation was preparing to execute approx-\nimately 10 search warrants and numerous arrest warrants.\nBut things went awry when, shortly before the bust, the tar-\ngets learned about it.\n Conway testified that while he was at work on June 9,\n2014, he received a call from an unknown woman who told\nhim to call Coleman. This call does not appear in Conway’s\npersonal phone records. Conway testified that when he fol-\nlowed the woman’s instructions and called Coleman,\n\fNo. 17-3636 3\n\nColeman warned him about the impending searches and told\nhim to pass the message along to Davis. (Coleman admits that\nthis call took place, but he told the jury that it was about set-\nting up a Father’s Day picnic.) Conway did what he was told\nand warned Davis about the looming raid. Unbeknownst to\nColeman, however, the task force knew that something was\namiss. The Operation had wiretapped numerous phones as\npart of its investigation, and so when Davis predictably called\nBedenfield, officers heard the two men say that someone “on\nthe task force” had given them a warning call. Davis testified\nthat he understood this person to be Coleman.\n After Coleman’s warning, Bedenfield moved contraband\nto a house that the Operation had not known about before.\nBecause they had intercepted the warning, however, officers\nwere monitoring Bedenfield when this move occurred. The\nOperation then obtained a search warrant for the new house\nand recovered the contraband placed there.\n Based on the warning call, the grand jury indicted Cole-\nman on one count of obstruction of justice. On August 10,\n2017, a jury convicted him on that charge. The district court\nlater denied his motion for a new trial and sentenced him to\n60 months’ imprisonment. On appeal, Coleman raises four\nobjections—two related to the conviction, and two to the sen-\ntence.\n II\n A\n Coleman first complains that the government improperly\nelicited testimony from Conway to the effect that he lied in his\ninitial interviews with law-enforcement agents because he\nfeared retaliation from the Chicago Police Department.\n\f4 No. 17-3636\n\nAlthough he objected to this testimony at trial, the ground for\nthat objection was relevance. FED. R. EVID. 401. On appeal, he\nhas gone further and asserted that Conway’s testimony was\nso prejudicial that it deprived him of a fair trial.\n We assess the district court’s handling of Coleman’s rele-\nvance objection only for abuse of discretion. United States v.\nPhillips, 596 F.3d 414, 416 (7th Cir. 2010). Conway’s testimony\nfalls into the category of “threat evidence.” We have held that\nthis type of evidence “‘can be relevant to explain a witness’\ninconsistent statements.’” United States v. Thompson, 359 F.3d\n470, 477 (7th Cir. 2004) (quoting United States v. Thomas, 86\nF.3d 647, 654 (7th Cir. 1996)). That theory fits these facts. Con-\nway made numerous inconsistent statements to investigators\nin his earlier interviews. The government thus needed to ex-\nplain why he had lied, and the threat testimony served that\npurpose. The district court thus acted within its discretion\nwhen it refused to sustain Coleman’s objection.\n As for the due-process argument, Coleman faces a more\ndifficult standard of review. Because he never made this ar-\ngument in the district court, we review it only for plain error.\nSee United States v. Saunders, 826 F.3d 363, 370–71 (7th Cir.\n2016).\n It is not clear to us that it was error at all to admit this evi-\ndence, much less that any such error was so serious that Cole-\nman “probably would not have been convicted but for the er-\nror.” United States v. Curtis, 280 F.3d 798, 801 (7th Cir. 2002).\n We can assume for present purposes that Conway’s testi-\nmony was likely to be highly prejudicial. And the prejudice\nmay have been compounded because Conway did not allege\na specific threat of retaliation by any member of the Chicago\n\fNo. 17-3636 5\n\nPolice Department—just vague fears based on rumors or sto-\nries he had supposedly heard. But because Coleman never ob-\njected on this basis, the district court was never alerted to the\nneed to weigh the legitimate use of this evidence against its\nweaknesses and incendiary nature. See United States v. Cox,\n536 F.3d 723, 728 (7th Cir. 2008). Indeed, the amorphous na-\nture of the threats Conway described might have caused the\ndistrict court to think that Coleman had a strategic reason for\nnot objecting to that evidence, such as a preference for attack-\ning the weaknesses in Conway’s story on cross-examination.\n Even if the district court did not surmise that Coleman was\nintentionally refraining from objecting on due-process\ngrounds, the court’s failure to strike this testimony sua sponte\nor to take other remedial action was not plain error. Cf. id.\n(holding that two government witnesses’ testimony that the\ndefendant cooked methamphetamine using the “Nazi\nmethod” was not so prejudicial as to create plain error even\nthough it “had almost no probative value”). Furthermore,\nColeman had ample opportunity to attack Conway’s testi-\nmony on cross-examination and in closing argument.\n Coleman also argues that Conway’s testimony about retal-\niation was prompted by an improper leading question. He is\ncorrect that the government’s question, “Were you afraid for\nyou[r] family?” was leading and thus generally improper on\ndirect examination. The government’s contention to the con-\ntrary in this court is simply wrong. A question is leading\nwhen it suggests the answer the witness should give. “Since\n[fearing for one’s family] is unusual, the question would be\nunlikely to be asked unless an affirmative answer was ex-\npected.” United States v. Cephus, 684 F.3d 703, 708 (7th Cir.\n2012). But even when they are improper, leading questions\n\f6 No. 17-3636\n\nrarely give rise to plain error. See United States v. Durham, 645\nF.3d 883, 891 (7th Cir. 2011). This is because “in the face of a\nsustained objection, most lawyers can rephrase a leading\nquestion to elicit the desired testimony.” Id. That is especially\nlikely when the leading question elicits the same response\nthat a witness would have given if asked a neutral question.\nSee United States v. Miller, 782 F.3d 793, 799–800 (7th Cir.\n2015). In this case, Conway had previously told investigators\nthat he feared retaliation from the Chicago Police Depart-\nment, and so there is no reason to think that the government’s\nleading question changed his testimony. We thus find no re-\nversible error in the district court’s failure to take some action\nwith respect to Conway’s retaliation testimony.\n B\n Coleman also asserts that he should receive a new trial be-\ncause the government knowingly used perjured testimony.\nHe is referring to Conway’s description of the call he received\nfrom the unknown woman; that call set in motion the chain of\ncalls warning the suspects about the impending raids. A de-\nfendant seeking a new trial because of the use of perjured tes-\ntimony must show: “(1) the prosecution’s case included per-\njured testimony; (2) the prosecution knew, or should have\nknown, of the perjury; and (3) there is a likelihood that the\nfalse testimony affected the judgment of the jury.” United\nStates v. Saadeh, 61 F.3d 510, 523 (7th Cir. 1995).\n It is doubtful that Coleman can meet even the first of these\ncriteria. All we know is that the phone call from the unknown\nwoman to Conway did not show up on Conway’s personal\nphone records. But there may have been other phones availa-\nble, such as a work phone. And the lack of a record was not\nsomething the government was trying to hide. To the\n\fNo. 17-3636 7\n\ncontrary, it was the government that introduced the phone\nrecords that undercut Conway’s story. That fact is also incon-\nsistent with Coleman’s theory that the government was en-\ngaged in the knowing use of perjured testimony.\n And there is yet another problem with this line of argu-\nment: even if the government knew (or should have known)\nthat Conway was giving false testimony about the woman’s\ncall, so did Coleman. During closing argument, Coleman\nused Conway’s testimony about the call from the mysterious,\nunidentified woman to argue that Conway was a liar whom\nthe jury should not believe. When a defendant has, and takes\nadvantage of, the opportunity to cross-examine, discredit,\nand expose a witness’s perjury, the likelihood that perjured\ntestimony will have “affected the judgment of the jury” is\ngreatly diminished. See id.; see also Long v. Pfister, 874 F.3d\n544, 549 (7th Cir. 2017) (en banc) (suggesting that when “the\nprosecutor fails to correct a falsehood, but the defense knows\nabout that falsehood and corrects it … there is no constitu-\ntional violation”). The district court did not abuse its discre-\ntion in refusing to grant a new trial for this reason.\n III\n Finally, we turn to Coleman’s complaints about his sen-\ntence. He first argues that the district court erroneously found\nthat he perjured himself when he testified at trial that his\nphone call with Conway was about a Father’s Day picnic, and\nthen imposed an enhancement under the Sentencing Guide-\nlines for obstruction of justice. U.S.S.G. § 3C1.1. Second, he ar-\ngues that his 60-month sentence is unreasonable and a viola-\ntion of the Eighth Amendment to the U.S. Constitution.\n\f8 No. 17-3636\n\n We review the district court’s findings in support of the\nobstruction enhancement deferentially. United States v.\nCherry, 855 F.3d 813, 815–16 (7th Cir. 2017). We find the court’s\ndecision well supported. When relying on perjured testimony\nfor the application of the section 3C1.1 offense-level enhance-\nment, “the district court should make a finding as to all the\nfactual predicates necessary for a finding of perjury: false tes-\ntimony, materiality, and willful intent.” United States v. Chy-\nchula, 757 F.3d 615, 619 (7th Cir. 2014) (quoting United States\nv. Riney, 742 F.3d 785, 790 (7th Cir. 2014)). Coleman’s version\nof the telephone call was inconsistent with the other testi-\nmony. More importantly, it was the jury’s prerogative to de-\ncide whom to believe, and the jury chose not to believe Cole-\nman. The district court found that Coleman’s testimony was\n“calculated to confuse the jury,” but that it was a lie “not very\nwell told.” Coleman offers no reason to overturn these assess-\nments.\n We need say only a word or two about Coleman’s argu-\nments that his sentence is substantively unreasonable and un-\nconstitutional. The fact that he can point to other cases in\nwhich law-enforcement officers have committed crimes and\nreceived lower sentences tells us very little, especially since it\nappears that none of his comparators was convicted of ob-\nstruction of justice. Coleman’s sentence was 37 months below\nthe recommended guidelines range for someone with an of-\nfense level of 30 and a criminal-history category of I (97 to 121\nmonths). Indeed, even without the obstruction enhancement,\nhis sentence would have been 28 months below the recom-\nmended guidelines range. “We presume the district court’s\nimposition of a below-[g]uidelines sentence to be reasonable.”\nUnited States v. Jones, 696 F.3d 695, 699 (7th Cir. 2012).\n\fNo. 17-3636 9\n\nColeman offers no reason why that presumption has been\novercome here.\n Because his sentence was reasonable, it also falls well out-\nside the Eighth Amendment’s prohibition on cruel and unu-\nsual punishments. See id. (“If the sentence is within the statu-\ntory limits, a claim of cruel and unusual punishment is nor-\nmally without merit.”); see also Harmelin v. Michigan, 501 U.S.\n957, 965 (1991) (“[T]he Eighth Amendment contains no pro-\nportionality guarantee.”).\n * * *\n We AFFIRM Coleman’s conviction and sentence.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4361287/", "author_raw": "Diane Pamela Wood"}]}	WOOD	EASTERBROOK	BRENNAN	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4584034/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Ronald T. COLEMAN, Defendant-Appellant.\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-23\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-3636\nUNITED STATES OF AMERICA,\n Plaintiff-Appellee,\n v.\n\nRONALD T. COLEMAN,\n Defendant-Appellant.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 16-CR-723 — Charles R. Norgle, Judge.\n ____________________\n\n ARGUED SEPTEMBER 24, 2018 — DECIDED JANUARY 23, 2019\n ____________________\n\n Before WOOD, Chief Judge, and EASTERBROOK and\nBRENNAN, Circuit Judges.\n WOOD, Chief Judge. Ronald Coleman is a former Chicago\npolice officer who turned to crime. In June 2014, he was as-\nsigned to a federal drug investigation task force, which was\nabout to execute numerous search and arrest warrants.\nShortly before the operations were set to begin, Coleman tel-\nephoned one of the targets—a high school acquaintance—to\nwarn him about the raid. That call led to a single charge of\n\f2 No. 17-3636\n\nobstruction of justice, in violation of 18 U.S.C. § 1512(c)(2),\nand the end of Coleman’s law-enforcement career when a jury\nconvicted him. Coleman now argues that he is entitled to a\nnew trial for two primary reasons: evidentiary errors, and the\ngovernment’s use of allegedly perjured testimony. He also\nurges that the district court committed procedural and sub-\nstantive errors when selecting his sentence. Because we find\nno prejudicial error in any of the district court’s rulings, we\naffirm both the conviction and the sentence.\n I\n Coleman is a lifelong Chicagoan who grew up to become\nan officer with the Chicago Police Department. In high school,\nhe met cousins Dewan Davis and LaRon Conway. Though\nColeman was not close with either of these men after high\nschool, he maintained a casual friendship with them.\n In 2014, Coleman served on the team conducting a federal\ndrug investigation dubbed Operation Five Leaf Clover (“the\nOperation”). In time, the Operation began to focus on several\npeople whom Coleman knew, including Davis. Although Da-\nvis was never a target of the Operation, he was identified as\nan associate of a heroin supplier named Rodney Bedenfield.\nIn June 2014 the Operation was preparing to execute approx-\nimately 10 search warrants and numerous arrest warrants.\nBut things went awry when, shortly before the bust, the tar-\ngets learned about it.\n Conway testified that while he was at work on June 9,\n2014, he received a call from an unknown woman who told\nhim to call Coleman. This call does not appear in Conway’s\npersonal phone records. Conway testified that when he fol-\nlowed the woman’s instructions and called Coleman,\n\fNo. 17-3636 3\n\nColeman warned him about the impending searches and told\nhim to pass the message along to Davis. (Coleman admits that\nthis call took place, but he told the jury that it was about set-\nting up a Father’s Day picnic.) Conway did what he was told\nand warned Davis about the looming raid. Unbeknownst to\nColeman, however, the task force knew that something was\namiss. The Operation had wiretapped numerous phones as\npart of its investigation, and so when Davis predictably called\nBedenfield, officers heard the two men say that someone “on\nthe task force” had given them a warning call. Davis testified\nthat he understood this person to be Coleman.\n After Coleman’s warning, Bedenfield moved contraband\nto a house that the Operation had not known about before.\nBecause they had intercepted the warning, however, officers\nwere monitoring Bedenfield when this move occurred. The\nOperation then obtained a search warrant for the new house\nand recovered the contraband placed there.\n Based on the warning call, the grand jury indicted Cole-\nman on one count of obstruction of justice. On August 10,\n2017, a jury convicted him on that charge. The district court\nlater denied his motion for a new trial and sentenced him to\n60 months’ imprisonment. On appeal, Coleman raises four\nobjections—two related to the conviction, and two to the sen-\ntence.\n II\n A\n Coleman first complains that the government improperly\nelicited testimony from Conway to the effect that he lied in his\ninitial interviews with law-enforcement agents because he\nfeared retaliation from the Chicago Police Department.\n\f4 No. 17-3636\n\nAlthough he objected to this testimony at trial, the ground for\nthat objection was relevance. FED. R. EVID. 401. On appeal, he\nhas gone further and asserted that Conway’s testimony was\nso prejudicial that it deprived him of a fair trial.\n We assess the district court’s handling of Coleman’s rele-\nvance objection only for abuse of discretion. United States v.\nPhillips, 596 F.3d 414, 416 (7th Cir. 2010). Conway’s testimony\nfalls into the category of “threat evidence.” We have held that\nthis type of evidence “‘can be relevant to explain a witness’\ninconsistent statements.’” United States v. Thompson, 359 F.3d\n470, 477 (7th Cir. 2004) (quoting United States v. Thomas, 86\nF.3d 647, 654 (7th Cir. 1996)). That theory fits these facts. Con-\nway made numerous inconsistent statements to investigators\nin his earlier interviews. The government thus needed to ex-\nplain why he had lied, and the threat testimony served that\npurpose. The district court thus acted within its discretion\nwhen it refused to sustain Coleman’s objection.\n As for the due-process argument, Coleman faces a more\ndifficult standard of review. Because he never made this ar-\ngument in the district court, we review it only for plain error.\nSee United States v. Saunders, 826 F.3d 363, 370–71 (7th Cir.\n2016).\n It is not clear to us that it was error at all to admit this evi-\ndence, much less that any such error was so serious that Cole-\nman “probably would not have been convicted but for the er-\nror.” United States v. Curtis, 280 F.3d 798, 801 (7th Cir. 2002).\n We can assume for present purposes that Conway’s testi-\nmony was likely to be highly prejudicial. And the prejudice\nmay have been compounded because Conway did not allege\na specific threat of retaliation by any member of the Chicago\n\fNo. 17-3636 5\n\nPolice Department—just vague fears based on rumors or sto-\nries he had supposedly heard. But because Coleman never ob-\njected on this basis, the district court was never alerted to the\nneed to weigh the legitimate use of this evidence against its\nweaknesses and incendiary nature. See United States v. Cox,\n536 F.3d 723, 728 (7th Cir. 2008). Indeed, the amorphous na-\nture of the threats Conway described might have caused the\ndistrict court to think that Coleman had a strategic reason for\nnot objecting to that evidence, such as a preference for attack-\ning the weaknesses in Conway’s story on cross-examination.\n Even if the district court did not surmise that Coleman was\nintentionally refraining from objecting on due-process\ngrounds, the court’s failure to strike this testimony sua sponte\nor to take other remedial action was not plain error. Cf. id.\n(holding that two government witnesses’ testimony that the\ndefendant cooked methamphetamine using the “Nazi\nmethod” was not so prejudicial as to create plain error even\nthough it “had almost no probative value”). Furthermore,\nColeman had ample opportunity to attack Conway’s testi-\nmony on cross-examination and in closing argument.\n Coleman also argues that Conway’s testimony about retal-\niation was prompted by an improper leading question. He is\ncorrect that the government’s question, “Were you afraid for\nyou[r] family?” was leading and thus generally improper on\ndirect examination. The government’s contention to the con-\ntrary in this court is simply wrong. A question is leading\nwhen it suggests the answer the witness should give. “Since\n[fearing for one’s family] is unusual, the question would be\nunlikely to be asked unless an affirmative answer was ex-\npected.” United States v. Cephus, 684 F.3d 703, 708 (7th Cir.\n2012). But even when they are improper, leading questions\n\f6 No. 17-3636\n\nrarely give rise to plain error. See United States v. Durham, 645\nF.3d 883, 891 (7th Cir. 2011). This is because “in the face of a\nsustained objection, most lawyers can rephrase a leading\nquestion to elicit the desired testimony.” Id. That is especially\nlikely when the leading question elicits the same response\nthat a witness would have given if asked a neutral question.\nSee United States v. Miller, 782 F.3d 793, 799–800 (7th Cir.\n2015). In this case, Conway had previously told investigators\nthat he feared retaliation from the Chicago Police Depart-\nment, and so there is no reason to think that the government’s\nleading question changed his testimony. We thus find no re-\nversible error in the district court’s failure to take some action\nwith respect to Conway’s retaliation testimony.\n B\n Coleman also asserts that he should receive a new trial be-\ncause the government knowingly used perjured testimony.\nHe is referring to Conway’s description of the call he received\nfrom the unknown woman; that call set in motion the chain of\ncalls warning the suspects about the impending raids. A de-\nfendant seeking a new trial because of the use of perjured tes-\ntimony must show: “(1) the prosecution’s case included per-\njured testimony; (2) the prosecution knew, or should have\nknown, of the perjury; and (3) there is a likelihood that the\nfalse testimony affected the judgment of the jury.” United\nStates v. Saadeh, 61 F.3d 510, 523 (7th Cir. 1995).\n It is doubtful that Coleman can meet even the first of these\ncriteria. All we know is that the phone call from the unknown\nwoman to Conway did not show up on Conway’s personal\nphone records. But there may have been other phones availa-\nble, such as a work phone. And the lack of a record was not\nsomething the government was trying to hide. To the\n\fNo. 17-3636 7\n\ncontrary, it was the government that introduced the phone\nrecords that undercut Conway’s story. That fact is also incon-\nsistent with Coleman’s theory that the government was en-\ngaged in the knowing use of perjured testimony.\n And there is yet another problem with this line of argu-\nment: even if the government knew (or should have known)\nthat Conway was giving false testimony about the woman’s\ncall, so did Coleman. During closing argument, Coleman\nused Conway’s testimony about the call from the mysterious,\nunidentified woman to argue that Conway was a liar whom\nthe jury should not believe. When a defendant has, and takes\nadvantage of, the opportunity to cross-examine, discredit,\nand expose a witness’s perjury, the likelihood that perjured\ntestimony will have “affected the judgment of the jury” is\ngreatly diminished. See id.; see also Long v. Pfister, 874 F.3d\n544, 549 (7th Cir. 2017) (en banc) (suggesting that when “the\nprosecutor fails to correct a falsehood, but the defense knows\nabout that falsehood and corrects it … there is no constitu-\ntional violation”). The district court did not abuse its discre-\ntion in refusing to grant a new trial for this reason.\n III\n Finally, we turn to Coleman’s complaints about his sen-\ntence. He first argues that the district court erroneously found\nthat he perjured himself when he testified at trial that his\nphone call with Conway was about a Father’s Day picnic, and\nthen imposed an enhancement under the Sentencing Guide-\nlines for obstruction of justice. U.S.S.G. § 3C1.1. Second, he ar-\ngues that his 60-month sentence is unreasonable and a viola-\ntion of the Eighth Amendment to the U.S. Constitution.\n\f8 No. 17-3636\n\n We review the district court’s findings in support of the\nobstruction enhancement deferentially. United States v.\nCherry, 855 F.3d 813, 815–16 (7th Cir. 2017). We find the court’s\ndecision well supported. When relying on perjured testimony\nfor the application of the section 3C1.1 offense-level enhance-\nment, “the district court should make a finding as to all the\nfactual predicates necessary for a finding of perjury: false tes-\ntimony, materiality, and willful intent.” United States v. Chy-\nchula, 757 F.3d 615, 619 (7th Cir. 2014) (quoting United States\nv. Riney, 742 F.3d 785, 790 (7th Cir. 2014)). Coleman’s version\nof the telephone call was inconsistent with the other testi-\nmony. More importantly, it was the jury’s prerogative to de-\ncide whom to believe, and the jury chose not to believe Cole-\nman. The district court found that Coleman’s testimony was\n“calculated to confuse the jury,” but that it was a lie “not very\nwell told.” Coleman offers no reason to overturn these assess-\nments.\n We need say only a word or two about Coleman’s argu-\nments that his sentence is substantively unreasonable and un-\nconstitutional. The fact that he can point to other cases in\nwhich law-enforcement officers have committed crimes and\nreceived lower sentences tells us very little, especially since it\nappears that none of his comparators was convicted of ob-\nstruction of justice. Coleman’s sentence was 37 months below\nthe recommended guidelines range for someone with an of-\nfense level of 30 and a criminal-history category of I (97 to 121\nmonths). Indeed, even without the obstruction enhancement,\nhis sentence would have been 28 months below the recom-\nmended guidelines range. “We presume the district court’s\nimposition of a below-[g]uidelines sentence to be reasonable.”\nUnited States v. Jones, 696 F.3d 695, 699 (7th Cir. 2012).\n\fNo. 17-3636 9\n\nColeman offers no reason why that presumption has been\novercome here.\n Because his sentence was reasonable, it also falls well out-\nside the Eighth Amendment’s prohibition on cruel and unu-\nsual punishments. See id. (“If the sentence is within the statu-\ntory limits, a claim of cruel and unusual punishment is nor-\nmally without merit.”); see also Harmelin v. Michigan, 501 U.S.\n957, 965 (1991) (“[T]he Eighth Amendment contains no pro-\nportionality guarantee.”).\n * * *\n We AFFIRM Coleman’s conviction and sentence.\n[END_CASE]", "role": "user" } ]
4,584,035		Ray Fuller v. Matthew G. Whitaker	2019-01-23	17-3176	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before WOOD, Chief Judge, and MANION and ROVNER, Circuit Judges.", "parties": "", "opinions": [{"author": "Ilana Kara Diamond Rovner", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\nNo. 17-3176\n\nRAY FULLER,\n Petitioner,\n\n v.\n\n\nMATTHEW G. WHITAKER, Acting\nAttorney General of the United\nStates,\n Respondent.\n\n\n On Petition for Review of an Order\n of the Board of Immigration Appeals\n No. A077-811-635\n\n\n\n ARGUED NOVEMBER 1, 2018 — DECIDED JANUARY 23, 2019\n\n\n Before WOOD, Chief Judge, and MANION and ROVNER, Circuit\nJudges.\n ROVNER, Circuit Judge. Ray Fuller asked the Board of\nImmigration Appeals to exercise its authority to reopen his\nremoval proceeding sua sponte so that he could present new\n\n2 No. 17-3176\n\nevidence in support of his request to defer his removal from\nthis country under the Convention Against Torture (“CAT”).1\nFuller contends that he likely will face torture upon return to\nhis native Jamaica because he is bisexual. The Board previously\nhad sustained an Immigration Judge’s finding that Fuller had\nnot presented a credible case as to his alleged sexual orienta-\ntion and fear of torture. In support of his motion to reopen,\nFuller submitted to the Board several new letters of support\nfrom acquaintances attesting to prior incidents in which he was\nthe victim of violence in Jamaica owing to his sexual orienta-\ntion. In denying this request, the Board explained that\n“[Fuller’s] motion does not challenge our conclusions regard-\ning his credibility or his eligibility for deferral of removal, and\nwe do not find that his letters of support would materially alter\nthese findings.” A.R. 3 (internal record citation omitted).\nBecause the Board’s stated rationale for disposing of Fuller’s\nmotion reflects a misapprehension of the basis for his request,\nand because we cannot be confident that the Board’s mistake\ndid not taint the exercise of its otherwise unreviewable\ndiscretion over the merits of the motion, we conclude that the\nBoard committed legal error in denying his request for relief.\nOn that basis, we grant Fuller’s petition for review and remand\nto the Board for further proceedings.\n\n\n1\n We recognize that when the Board acts in response to a litigant’s request,\nit is not acting sua sponte. See Shah v. Holder, 736 F.3d 1125, 1126 (7th Cir.\n2013). We shall nonetheless refer to the Board’s authority to reopen a\nproceeding sua sponte in order to distinguish that power from the Board’s\ndistinct authority to entertain a one-time motion to reopen filed within 90\ndays of final agency action. Compare 8 C.F.R. § 1003.2(c)(2) with id.\n§ 1003.2(a).\n\nNo. 17-3176 3\n\n I.\n Our summary of the facts may be somewhat abbreviated,\nas this is the fourth time that Fuller’s case has come before us.\nWe refer the reader to our two prior published decisions for\nadditional background. See Fuller v. Lynch, 833 F.3d 866 (7th\nCir. 2016) (“Fuller I”); Fuller v. Sessions, 879 F.3d 265 (7th Cir.\n2018) (“Fuller II”).\n Fuller entered the country legally on a fiancé visa in 1999\nand married an American citizen the following year. In 2004,\nhe pleaded guilty to attempted criminal sexual assault and an\nIllinois court ordered him to serve a term of 30 months’\nprobation. After he later violated the terms of his probation,\nFuller was re-sentenced to a prison term of four years.\n Following Fuller’s release from prison in 2014, the Depart-\nment of Homeland Security (“DHS”) initiated removal\nproceedings against him. The government charged, and the\nBoard would later agree, that Fuller was removable from the\nUnited States pursuant to 8 U.S.C. § 1227(a)(1)(D)(i) because he\nhad lost his conditional permanent resident status. (In 2004,\nFuller and his wife, whom he divorced the following year,\nfailed to appear for a mandatory interview with immigration\nofficials, triggering the revocation of his conditional residency\nstatus.)2 And because, as the Board would also agree, Fuller’s\nconviction for attempted criminal sexual assault constituted a\n\n\n2\n The government alleged that Fuller was removable on other grounds, but\nthe Board found it unnecessary to reach these other grounds. Fuller does\nnot contest that he is removable on the ground that he lost his status as a\nconditional permanent resident of the United States.\n\n4 No. 17-3176\n\n“particularly serious crime,” he was disqualified from seeking\nwithholding of removal under both the Immigration and\nNationality Act and the CAT. See 8 U.S.C. § 1231(b)(3)(B)(ii).\n Fuller instead sought deferral of his removal under the\nCAT, alleging that he was likely to be tortured as a bisexual\nwere he returned to Jamaica. See 8 C.F.R. §§ 208.16(c)(4),\n208.17(a).3 In a hearing before the Immigration Judge (“IJ”),\nFuller testified to a history of sexual relationships with both\nmen and women beginning in his preteen years and continuing\nthrough his (by then dissolved) marriage to a U.S. citizen.\nFuller also recounted a number of incidents in Jamaica in\nwhich he was physically and verbally attacked by those who\nperceived him to be gay; one of these incidents involved a\nshooting by a homophobic mob in the gay-friendly resort town\nof Ocho Rios. Fuller further indicated that his sisters had\ndisowned him for his sexual orientation. In addition to his\ntestimony, Fuller presented the IJ with seven letters from his\nchildren and friends, attesting to both his bisexuality and to the\nviolence he had experienced in Jamaica on account of his\nsexual orientation.\n The IJ found that Fuller’s testimony was not credible; and\nbecause she disbelieved his testimony and also questioned the\nveracity of the letters he had submitted, the IJ concluded that\n\n\n3\n For purposes of the CAT, torture is defined to include “any act by which\nsevere pain or suffering, whether physical or mental, is intentionally\ninflicted on a person … for any reason based on discrimination of any kind,\nwhen such pain or suffering is inflicted by or at the instigation of or with\nthe consent or acquiescence of a public official or other person acting in an\nofficial capacity.” 8 C.F.R. § 208.18(a)(1).\n\nNo. 17-3176 5\n\nFuller had not established that he is bisexual and as such faces\na likelihood of torture if he is forced to return to Jamaica. She\nconsequently denied his request for relief under the CAT. A.R.\n181–202. In finding that Fuller’s testimony was not credible, the\nIJ cited discrepancies both as to certain basic facts (including\nthe number and names of sisters, as well as confusing his sister\nwith his mother in his testimony) and as to the details of the\nprior instances of violence he allegedly had experienced in\nJamaica (including a ten-year discrepancy as to the timing of\nthe Ocho Rios shooting and which of his former boyfriends\nwas present at the incident, as recounted in his written state-\nment versus his subsequent testimony in court). As for the\nsupporting letters from Fuller’s friends, the IJ noted that none\nof the authors were available to testify although two of them\nwere former boyfriends who lived in the United States. The\nletters also diverged in certain respects from Fuller’s testi-\nmony: one letter suggested that Fuller had been shot on\nmultiple occasions in Jamaica, whereas Fuller had only\ndescribed one shooting. And all of the letters contained the\nsame centered, dotted signature line, which caused the IJ to\ndoubt their provenance. A.R. 192–96. The IJ summarized:\n [Fuller’s] credibility is seriously lacking in this case.\n He is unable to recall many of the most important\n details of the events that he claims … had an impact\n on his life, particularly with respect to his claim of\n being bisexual. He has failed to provide the Court\n with many documents that could have clarified\n many of these inconsistencies, such as medical\n records, police reports, corroborating letters of\n support or witnesses. The letters that he has pre-\n\n6 No. 17-3176\n\n sented to the Court are given very little weight\n because the Court is unable to verify their authentic-\n ity and has not had an opportunity to cross-examine\n or to even hear testimony from any of the makers of\n these statements. The respondent has given very\n little corroborative evidence to evaluate his claim\n that he is in fact bisexual and that he was in fact\n harmed in Jamaica on account of his sexual orienta-\n tion in the past.\nA.R. 195.\n In 2015, the Board affirmed the denial of CAT relief to\nFuller based on the IJ’s adverse credibility findings. A.R. 61–62.\n“[Fuller] has shown no clear error in the Immigration Judge’s\ndetailed findings of fact, to include the findings that the\nrespondent did not credibly testify and did not establish that\nhe has ever been bisexual. The respondent’s inconsistent\nstatements and implausible explanations fully support an\nadverse credibility determination.” A.R. 62 (internal record\ncitation omitted).\n Fuller then appealed to this court, but we denied his\npetition for review in a divided opinion. Fuller I, 833 F.3d 866.\nWe concluded in relevant part that the IJ’s adverse credibility\ndetermination, as affirmed by the Board, was supported by\nsubstantial evidence. Id. at 871–72. Although we acknowledged\nthat some of the IJ’s stated reasons for disbelieving Fuller were\noff the mark (including, for example, the citation of his mar-\nriage to a woman and multiple other prior heterosexual\nrelationships as a reason to think he was not bisexual), others\nwere sound. The latter included the discrepancies between his\n\nNo. 17-3176 7\n\nwritten statement and his oral testimony as to when the Ocho\nRios shooting had occurred, his confusion as to the number\nand names of his sisters (and mixing up his mother with his\nsister), and a material lie he had told government officials in\n2001 in seeking permission to visit Jamaica. We were satisfied\nthat the IJ’s adverse credibility finding was amply supported\nin these respects. Id. We added that if Fuller were able to gather\nnew evidence demonstrating that the IJ was mistaken as to his\nsexual orientation, he could ask the IJ to sua sponte reopen the\nproceeding. Id. at 872. The dissent, unpersuaded that these\ndiscrepancies cast doubt on Fuller’s claims that he was bisexual\nand had suffered violence as a result, contended that the\npetition for review should have been granted. Id. at 872–74.\n In January 2017, Fuller filed a motion asking the Board to\nreconsider and/or reopen the proceedings. A.R. 48–54. The\nprincipal contention that Fuller advanced in his motion was\nthat the IJ had erred in rejecting his representation that he is\nbisexual and as such faces likely persecution and torture upon\nhis return to Jamaica. Among other points, Fuller argued that\nhe had testified without contradiction that he is bisexual and\nhas been rejected by his family members because of his sexual\norientation; that given the hostility and violence bisexual\nindividuals experience in Jamaica, he would have no reason to\nfalsely characterize himself as bisexual; that for the same\nreasons, it was difficult for him to locate gay or bisexual\nJamaicans who would put themselves at risk by giving\ntestimony that would confirm his bisexuality; that the inconsis-\ntencies and mistakes in his testimony before the IJ were due to\nhis fear of being returned to Jamaica; and that the IJ’s rationale\nfor discrediting his testimony betrayed her own misunder-\n\n8 No. 17-3176\n\nstandings about bisexuality. A.R. 50–52, 54. Fuller added that\nhe had been able to obtain affidavits—actually, letters—from\nindividuals who supported his claim that had not been\navailable to him previously. A.R. 53.\n The Board denied Fuller’s motion in February 2017. A.R. 43.\nThe Board noted both that the motion was untimely and that,\nalthough Fuller referenced new affidavits that were unavail-\nable to him previously, “he has not submitted such evidence\nwith the motion, nor has he shown that a different outcome\nmay be warranted based on the new evidence.” A.R. 43.\n On receipt of the Board’s order denying his motion, Fuller\nfiled what he styled as a “Statement of Notice to Appeal\n(motion to reopen).” A.R. 22. In that statement, Fuller chal-\nlenged the Board’s declaration that he had not submitted the\nnew evidence referred to in his motion to reopen, observing,\n“The new evidence was the cornerstone of my motion so there\nis no way that it would not be sent in with the motion. I think\nthat this was a clerical mishap that caused this and I am now\nmaking sure the new pieces of evidence are included.” A.R. 22.\nFuller went on to summarize briefly his basis for asking the\nBoard to reopen his removal proceeding (and on what grounds\nhe was seeking deferral of removal), and concluded his\nstatement with the following: “I have new evidence to submit\nto the court to help to prove my case. I pray that I will be given\nthe chance to prove my credibility in court with the help of the\nnew evidence, and garner a positive outcome to my situation.”\nA.R. 22. He attached to the statement copies of the three letters\nreferred to in his prior motion to reconsider and/or reopen.\n\nNo. 17-3176 9\n\n The Board treated Fuller’s “statement” as a second motion\nto reopen, and denied that motion. A.R. 3–4. The Board noted\nin the first instance that the motion was barred in both number\nand untimeliness, and that Fuller had not identified any\napplicable exception to those limits. Nor, in the Board’s view,\nhad Fuller demonstrated that the circumstances of his case\nwere so exceptional as to warrant the exercise of the Board’s\nauthority to sua sponte reopen the proceedings. A.R. 3. The\nBoard explained:\n Even accepting [Fuller’s] argument that he previ-\n ously submitted his proffered letters of support, we\n find no basis on which to alter our October 27, 2015\n dismissal of his appeal or our previous denial of his\n motion to reopen. [Fuller’s] motion does not chal-\n lenge our conclusions regarding his credibility or his\n eligibility for deferral of removal, and we do not\n find that his letters of support would materially alter\n these findings. …\nA.R. 3 (internal record citations omitted).\n Fuller then filed the instant petition for review of the\nBoard’s order, along with a request that we stay his removal\npending resolution of the merits of his petition. After first\ndenying Fuller a stay, see Fuller II, 879 F.3d 265, we ultimately\nagreed to stay his removal and appointed counsel to represent\nhim. With the benefit of briefing and argument, we now\nproceed to the merits of Fuller’s petition for review.\n\n10 No. 17-3176\n\n II.\n We begin by addressing the limits of our jurisdiction. With\nexceptions not applicable here, a petitioner is limited to one\nmotion to reopen filed within 90 days of the Board’s final\nadministrative decision. See 8 U.S.C. § 1229a(c)(7)(A) & (C)(i);\n8 C.F.R. § 1003.2(c)(2). Fuller sought reopening long after the\n90-day time limit had expired and, consequently, his only\nrecourse was to ask the Board to exercise its authority to\nreopen the removal proceeding sua sponte, see 8 C.F.R.\n§ 1003.2(a) (“The Board may at any time reopen on its own\nmotion any case in which it has rendered a decision.”), a power\nthe Board has said it will reserve for “exceptional situations,”\nIn re J– J–, 21 I. & N. Dec. 976, 984 (B.I.A. 1997); see also In re\nG– D–, 22 I. & N. Dec. 1132, 1133–34 (B.I.A. 1999). Because the\ngoverning regulation permits but does not require the Board\nto exercise this power and there is no law defining what\nsituations will qualify as “exceptional,” there is no meaningful\nstandard by which to evaluate the exercise of the Board’s\ndiscretion, and consequently the merits of the Board’s decision\nto deny a motion to reopen sua sponte are unreviewable. Anaya-\nAguilar v. Holder, 683 F.3d 369, 372 (7th Cir. 2012) (“Anaya-\nAguilar I”) (collecting cases); see also Fuller II, 879 F.3d at 268.\nBut we do possess the authority to recognize and address\nconstitutional transgressions and other legal errors that the\nBoard may have committed in disposing of such a motion, see\n8 U.S.C. § 1252(a)(2)(D); Fuller II, 879 F.3d at 268; Zambrano-\nReyes v. Holder, 725 F.3d 744, 751 (7th Cir. 2013); Anaya-Aguilar\nv. Holder, 697 F.3d 1189, 1190 (7th Cir. 2012) (clarifying Anaya-\nAguilar I on denial of rehearing), including whether Board’s\nstated rationale for denying such a motion indicates that it\n\nNo. 17-3176 11\n\nignored evidence that the alien tendered in support of his\nrequest, Fuller II, 879 F.3d at 268 (citing Joseph v. Lynch, 793 F.3d\n739, 741–42 (7th Cir. 2015)). Contrary to the government’s\nargument, the REAL ID Act of 2005, which stripped us of the\nauthority to review various discretionary decisions of the\nBoard, did not alter our ability to address such legal errors. See\n§ 1252(a)(2)(D); Cevilla v. Gonzales, 446 F.3d 658, 660 (7th Cir.\n2006).4\n Fuller charges the Board with two legal errors in disposing\nof his motion to reopen. He contends first that the Board\nmisapprehended the thrust of his motion to reopen and the\nsignificance of the additional letters of support he submitted in\nsupport of the motion. The Board understood Fuller not to be\nchallenging its conclusions as to his credibility or his eligibility\nfor deferral of removal. But that understanding cannot be\nsquared with the substance of his motion, which was a direct\nchallenge to these conclusions, Fuller argues. Fuller also\ncontends that the Board’s summary rejection of his new\nevidence as “insufficient to materially alter” its adverse\nfindings was so perfunctory as to preclude confirmation that\nthe Board gave meaningful consideration to his evidence.\n\n\n4\n At oral argument, the government’s counsel suggested that because Fuller\nis seeking reopening in order to renew his request for relief under the CAT,\nand because a denial of relief under the CAT itself is reviewable by this\ncourt, see Teneng v. Holder, 602 F. App’x 340, 347 (7th Cir. 2015) (non-\nprecedential decision); Wani Site v. Holder, 656 F.3d 590, 593 (7th Cir. 2011),\nsection 1252(a)(2)(D) does not apply to the Board’s refusal to exercise its\nauthority to sua sponte reopen the proceedings. Because that contention was\nnot raised in the government’s brief, we deem it waived. E.g., Pope v. Perdue,\n889 F.3d 410, 417 n.4 (7th Cir. 2018).\n\n12 No. 17-3176\n\nBecause we agree with Fuller that the Board mischaracterized\nthe basis for his motion, and because we can have no confi-\ndence that its error did not taint the exercise of its discretion as\nto the merits of the motion, we will remand the matter to the\nBoard on that basis, without deciding whether the Board,\nabsent that error, was obligated to say more than it did in\ndenying Fuller’s request that it reopen the removal proceeding\nsua sponte.\n We should note at the outset that we regard Fuller’s\n“Statement of Notice to Appeal (motion to reopen),” which the\nBoard treated as a second motion to reopen sua sponte, simply\nas an effort to supplement the record with the three new letters\nof support that were somehow missing from Fuller’s prior\nmotion. The “Statement,” as we read it, did not purport to\nmake any new arguments in favor of reopening or even to\naddress the Board’s rationale in denying his prior motion,\nbeyond tendering the letters that the Board had said were\nmissing from Fuller’s prior submission. Certainly it was within\nthe Board’s authority to characterize Fuller’s “Statement” as a\nsecond motion to reopen; we do not mean to suggest other-\nwise. But, in determining whether the Board committed any\nlegal error, we shall evaluate the Board’s order disposing of\nthat second motion in light of the arguments Fuller advanced\nboth in his “Statement” and in his first motion to reopen, which\nwere of one piece.\n The Board said in its order that Fuller was not challenging\nits prior conclusions regarding his credibility or his eligibility\nfor deferral of removal; but that declaration cannot be recon-\nciled with either the letter or the spirit of Fuller’s request for\nrelief. Nowhere in either his motion to reopen or in his follow-\n\nNo. 17-3176 13\n\nup “Statement” did Fuller purport to forgo a challenge to the\nIJ’s finding (as sustained by the Board) that he was not credible\nas to his sexual orientation and history of persecution in\nJamaica and that, consequently, he could not claim eligibility\nfor deferral of removal under the CAT as a bisexual who was\nlikely to be tortured. Indeed, considering that the Board’s 2015\norder had deemed Fuller ineligible for deferral of removal on\nthe strength of the IJ’s finding that he was not credible as to his\npurported sexual orientation, it would be surprising if Fuller’s\nmotion did not challenge the Board’s conclusions as to his\ncredibility and, in turn, his eligibility for deferral of removal. It\nis true that Fuller made statements in his motion to reopen to\nthe effect that the IJ’s adverse credibility determination “cannot\nand does not preclude him from being a bisexual” and “does\nnot change the fact that [t]he Respondent is bisexual.” A.R. 51.\nBut such statements cannot reasonably be construed as\naccepting, even for the sake of argument, the IJ’s credibility\nfinding. The entire thrust of the motion to reopen was that\nFuller is, in fact, bisexual and has in fact, experienced violence\nin Jamaica as a result of his sexual orientation; that the IJ’s\nrationale in discrediting him on these points was suspect; and\nthat the new letters of support tendered in support of his\nrequest to reopen would eliminate any doubt as to the likeli-\nhood that he will be tortured if forced to return to Jamaica. If\nFuller did not say so expressly, it was nonetheless clear from\nthe substance of his arguments that he meant to challenge the\nadverse credibility determination and the resulting finding that\nhe had no basis on which to seek deferral of removal. See A.R.\n51 (“The pertinent facts should be that [Fuller] testified without\ncontradiction that he [is] bisexual, [and] he was rejected by his\n\n14 No. 17-3176\n\nfamily because of this.”); A.R. 54 (“The Immigration Judge’s\nassertion that [Fuller] was not in danger if removed to Jamaica\nis clearly a decision made with the lack of in-depth investiga-\ntion by the fact-finders in this case.”). And, indeed, Fuller\nultimately did say this expressly in his “Statement”: “I have\nnew evidence to submit to the court to help to prove my case.\nI pray that I will be given the chance to prove my credibility in\ncourt with the help of the new evidence … .” A.R. 22.\n So the Board’s understanding of Fuller’s motion to\nreopen—and of what challenges he was purportedly forgo-\ning—was erroneous. And to the extent that misunderstanding\nnecessarily affected how the Board exercised its discretion as\nto the merits of his motion, it amounts to a legal error that\nentitles him to relief. We have repeatedly said that the Board\ncommits a legal error within our jurisdiction to address when\nit ignores, misapplies, or fails to meaningfully consider the\nevidence an alien has submitted in support of his motion to\nreopen sua sponte. See Arej v. Sessions, 852 F.3d 665, 667 (7th Cir.\n2017); Ni v. Holder, 715 F.3d 620, 630 (7th Cir. 2013); Moosa v.\nHolder, 644 F.3d 380, 386 (7th Cir. 2011). Contrary to the\ngovernment’s suggestion, our ability to recognize such an error\nis not dependent on the particular reasons why an alien is\nasking the Board to exercise its sua sponte authority, be it a\nsubsequent change in the law, see In re G– D–, supra, 22 I. & N.\nDec. at 1135, or (as here) the availability of new evidence\nsupporting the alien’s claim for relief. When the Board\nmischaracterizes the evidence tendered or misapprehends the\npurpose for which it is offered, it has not complied with its\nduty to recognize and consider the basis on which the alien has\n\nNo. 17-3176 15\n\nasked the Board to exercise its regulatory authority to reopen\nthe proceedings sua sponte. See Arej, 852 F.3d at 667.\n We acknowledge that the Board, after stating that Fuller\nwas not challenging its findings as to his credibility and\neligibility for deferral of removal, added that “we do not find\nthat his letters of support would materially alter these find-\nings,”(A.R. 3); but that addition does not convince us that we\nshould deny Fuller’s petition for review. Having misappre-\nhended or mischaracterized what findings Fuller was or was\nnot challenging in his motion to reopen, we cannot be confi-\ndent that the Board’s additional half-sentence as to the import\nof Fuller’s new evidence represents an independent and well-\nconsidered alternative ground for the Board’s judgment. We\nmight have more assurance in that regard had the Board said\nsomething more about the letters of support and why the\nBoard did not think they would materially alter its assessment\nof whether he is entitled to deferral of removal. But the Board’s\nfailure to elaborate on this point leaves us with no assurance\nthat the Board’s exercise of discretion was unaffected by its\nerror in appreciating the purpose of Fuller’s new evidence. To\nbe clear, our point is not that the Board must say enough to\nconvince us that the Board exercised its discretion “correctly”\non Fuller’s motion to reopen; the merits of its ruling are of\ncourse beyond the limited scope of our review. But in the\nimmediate wake of a grave mischaracterization of the basis for\nFuller’s motion, the Board’s additional boilerplate observation\nthat Fuller’s new letters would not materially alter its prior\nadverse findings cannot eradicate doubt as to whether the\nBoard actually considered Fuller’s evidence and understood\nwhat he was arguing based on that evidence. Wholly apart\n\n16 No. 17-3176\n\nfrom the question of how much the Board was obligated in the\nfirst instance to say in disposing of Fuller’s motion, the glaring\nerror in what it did say suggests it may never have given\nmeaningful consideration to Fuller’s evidence. The Board’s\norder as written leaves us in the same position we would be if\nits stated rationale indicated that it had altogether ignored the\nevidence and arguments Fuller put before it. See Joseph, 793\nF.3d at 741–42; Kiorkis v. Holder, 634 F.3d 924, 928 (7th Cir.\n2011); Iglesias v. Mukasey, 540 F.3d 528, 531 (7th Cir. 2008).\n The merits of Fuller’s case for the sua sponte reopening of\nhis removal proceeding are for the Board and the Board alone\nto judge. Nothing in our opinion should be construed as a\nsignal that we believe Fuller is entitled to reopening; our views\non that question are, in any event, irrelevant. Suffice it to say\nthat the Board in this case plainly misapprehended the basis for\nFuller’s motion and then dispensed with the merits of the\nmotion in a perfunctory half-sentence, giving us no assurance\nthat it genuinely exercised its discretion as to what Fuller was\nactually arguing. The Board’s legal error compels us to return\nthe matter to the Board for reconsideration.\n III.\n We GRANT the petition for review and REMAND the case\nto the Board for further proceedings consistent with this\nopinion.\n\n17 No. 17‐3176", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4361288/", "author_raw": "Ilana Kara Diamond Rovner"}, {"author": "MANION, Circuit Judge, dissenting", "type": "dissent", "text": "MANION, Circuit Judge, dissenting. The court’s opinion \nadmirably attempts to toe the thin line between reviewing a \ndecision of the Board of Immigration Appeals to ensure it \nexercised its discretion and reviewing the Board’s exercise of \ndiscretion itself. But it strays from the former into the latter. \nTherefore, I respectfully dissent. \n I. \n An immigration judge (IJ) found Ray Fuller lacked credi‐\nbility and denied him relief under the Convention Against \nTorture. The Board affirmed the decision, concluding Fuller \nfailed to show clear error concerning the IJ’s credibility de‐\ntermination. A.R. 62 (“[Fuller’s] inconsistent statements and \nimplausible explanations fully support an adverse credibility \ndetermination.”). We denied Fuller’s petition for review. See \nFuller v. Lynch (Fuller I), 833 F.3d 866, 872 (7th Cir. 2016). In \naccord with the deferential standard of review we apply in \nthese cases, we too concluded there was sufficient evidence \nto support the IJ’s credibility determination. Specifically, we \nconsidered “Fuller’s inability to recall significant details” of \nhis alleged shooting (such as the decade in which it oc‐\ncurred), his confusion concerning his sisters and his mother, \nthe suspiciousness of his letters of support, and his lie on his \n2001 immigration application. Id. at 869–71. \n Fuller then asked the Board to exercise its sua sponte au‐\nthority to reopen his removal proceedings, claiming he had \nattached new evidence to the motion. See 8 C.F.R. § 1003.2(a). \nThe Board declined, noting Fuller had not attached any new \nevidence to his motion. Fuller made another motion, this \ntime definitely attaching three new letters in support of his \nclaims. The Board declined again. The critical sentence of the \nBoard’s second decision is as follows: “The respondent’s mo‐\n\nNo. 17‐3176 18 \n\ntion does not challenge our conclusions regarding his credi‐\nbility or his eligibility for deferral of removal, and we do not \nfind that his letters of support would materially alter these \nfindings.” A.R. 3 (internal record citations omitted). Fuller \npetitions us again. \n II. \n Appellate review of the Board’s decisions concerning its \nsua sponte authority is severely limited. We have jurisdiction \nonly to review for legal or constitutional errors. Anaya‐\nAguilar v. Holder, 697 F.3d 1189, 1190 (7th Cir. 2012); see also \nArej v. Sessions, 852 F.3d 665, 668 (7th Cir. 2017) (Sykes, J., \nconcurring in the judgment) (“[W]e lack jurisdiction to re‐\nview how the [Board] evaluated and weighed [the petition‐\ner’s] evidence or to test its decision for abuse of discretion; \nwe may review its decision only for errors of law and consti‐\ntutional infirmities.”). We have defined “legal error” to in‐\nclude the Board’s failure “to exercise discretion at all by \ncompletely ignoring an argument.” Iglesias v. Mukasey, 540 \nF.3d 528, 530–31 (7th Cir. 2008). \n And that is the legal error the court finds here. The court \ngrants Fuller’s petition because of the Board’s statement that \nFuller was not challenging the Board’s “conclusions regard‐\ning his credibility or his eligibility for deferral.” The court \ncalls this “a grave mischaracterization” that “cannot be rec‐\nonciled with either the letter or the spirit of Fuller’s request \nfor relief.” Majority Op. at 12, 15. I disagree. \n First, Fuller’s second motion1 did not clearly challenge \nthe Board’s conclusions. Fuller’s pro se motion (his “State‐\n \n 1 The court treats Fuller’s first and second motions to reopen as “of \none piece.” Majority Op. at 12. But the court accepts the Board was well \n\n19 No. 17‐3176\n\nment”) contains three paragraphs. In the first paragraph, \nFuller asserts he attached the letters to the first motion and \nstates there must have been a clerical error. The second par‐\nagraph reiterates what he has said all along in these proceed‐\nings (he says he is bisexual, that he has experienced violence \nin Jamaica, and that he will experience more if he returns) \nand asks the Board to overturn the judgment in his case. The \nfinal paragraph asks for an opportunity “to present [his] case \nto the immigration court” and to “be given the chance to \nprove [his] credibility in court with the help of the new evi‐\ndence.” A.R. 22. Apart from that last statement, Fuller never \nmentions his credibility and never directly addresses his \ncredibility issues, which were the basis for the denial of his \npetition for deferral of removal. For instance, he does not \nexplain why his assertions should be trusted when he could \nnot keep straight whether he got shot in the 1980s or the \n1990s or when he has previously lied on an immigration ap‐\nplication. Neither does the restatement of his allegations \nnecessarily amount to a “challenge” to the Board’s earlier \ndeterminations. The IJ found Fuller did not testify credibly, \nand the Board concluded there was no clear error in that \nfinding. The Board was not required to treat Fuller’s re‐\nstatement of a summary of his own testimony as a “chal‐\nlenge” to that conclusion. Cf. Anderson v. Hardman, 241 F.3d \n544, 545–46 (7th Cir. 2001) (dismissing a pro se appeal where \nthe appellant “offer[ed] no articulable basis for disturbing \n\n\n \nwithin its power to treat Fuller’s second filing as an independent motion. \nId. If it was acceptable for the Board to do that, then we should not make \nit unacceptable by treating the two as one for the purposes of our review. \nTherefore, I treat the second motion on its own. \n\nNo. 17‐3176 20 \n\nthe district court’s judgment” and “simply repeat[ed] certain \nallegations of his complaint and cite[d] one irrelevant case”). \n So Fuller’s motion is ambiguous about whether it “chal‐\nlenges” the Board’s determinations, and this brings me to \nmy next point: we should not be in the business of interpret‐\ning “the spirit” of motions made to the Board. The resolution \nof ambiguities is a power that should lie with the entity ex‐\nercising discretion, not the one exercising an extremely lim‐\nited power of review. We are, after all, only concerned with \nwhether the Board completely ignored Fuller’s motion, not \nwith how the Board interpreted it. See Joseph v. Lynch, 793 \nF.3d 739, 742 (7th Cir. 2015) (“Joseph’s disagreement with \nthe Board about the significance of his and his brother’s \nstatements is simply an argument about how those state‐\nments were weighed. It does not clear the jurisdictional \nbar … .”).2 And the Board’s determination that Fuller’s mo‐\ntion did not challenge the Board’s earlier conclusions is a \nreasonable interpretation of the ambiguous pro se motion.3 \nAccordingly, there has been no showing the Board completely \nignored Fuller’s motion or arguments. \n \n\n\n \n 2 The majority in Arej v. Sessions conflated these considerations and \nheld the Board ignored the petitioner’s evidence because the Board \nreached a conclusion the majority deemed incorrect. 852 F.3d at 667 (ma‐\njority opinion). We should not allow that faulty rational to continue. \n 3 If the Board’s decision showed an absolute lack of understanding \nconcerning the contents of the motion, it would be appropriate for this \ncourt to question whether the Board actually considered the motion. But \nI conclude that is not what happened here. \n\n21 No. 17‐3176\n\n III. \n The court returns this case to the Board for it to exercise \nits discretion in resolving the merits—the court acknowledg‐\nes it has no authority to direct how the Board should exercise \nthat discretion. I completely agree with that description of \nour power. However, as I conclude the Board has already \ndemonstrated it exercised its discretion in resolving Fuller’s \nmotion, I respectfully dissent.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4361288/", "author_raw": "MANION, Circuit Judge, dissenting"}]}	WOOD	MANION	ROVNER	1		{"WOOD": ", Chief", "MANION": ", Circuit", "ROVNER": ", Circuit"}	2	1	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4584035/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Ray Fuller v. Matthew G. Whitaker\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-23\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\nNo. 17-3176\n\nRAY FULLER,\n Petitioner,\n\n v.\n\n\nMATTHEW G. WHITAKER, Acting\nAttorney General of the United\nStates,\n Respondent.\n\n\n On Petition for Review of an Order\n of the Board of Immigration Appeals\n No. A077-811-635\n\n\n\n ARGUED NOVEMBER 1, 2018 — DECIDED JANUARY 23, 2019\n\n\n Before WOOD, Chief Judge, and MANION and ROVNER, Circuit\nJudges.\n ROVNER, Circuit Judge. Ray Fuller asked the Board of\nImmigration Appeals to exercise its authority to reopen his\nremoval proceeding sua sponte so that he could present new\n\n2 No. 17-3176\n\nevidence in support of his request to defer his removal from\nthis country under the Convention Against Torture (“CAT”).1\nFuller contends that he likely will face torture upon return to\nhis native Jamaica because he is bisexual. The Board previously\nhad sustained an Immigration Judge’s finding that Fuller had\nnot presented a credible case as to his alleged sexual orienta-\ntion and fear of torture. In support of his motion to reopen,\nFuller submitted to the Board several new letters of support\nfrom acquaintances attesting to prior incidents in which he was\nthe victim of violence in Jamaica owing to his sexual orienta-\ntion. In denying this request, the Board explained that\n“[Fuller’s] motion does not challenge our conclusions regard-\ning his credibility or his eligibility for deferral of removal, and\nwe do not find that his letters of support would materially alter\nthese findings.” A.R. 3 (internal record citation omitted).\nBecause the Board’s stated rationale for disposing of Fuller’s\nmotion reflects a misapprehension of the basis for his request,\nand because we cannot be confident that the Board’s mistake\ndid not taint the exercise of its otherwise unreviewable\ndiscretion over the merits of the motion, we conclude that the\nBoard committed legal error in denying his request for relief.\nOn that basis, we grant Fuller’s petition for review and remand\nto the Board for further proceedings.\n\n\n1\n We recognize that when the Board acts in response to a litigant’s request,\nit is not acting sua sponte. See Shah v. Holder, 736 F.3d 1125, 1126 (7th Cir.\n2013). We shall nonetheless refer to the Board’s authority to reopen a\nproceeding sua sponte in order to distinguish that power from the Board’s\ndistinct authority to entertain a one-time motion to reopen filed within 90\ndays of final agency action. Compare 8 C.F.R. § 1003.2(c)(2) with id.\n§ 1003.2(a).\n\nNo. 17-3176 3\n\n I.\n Our summary of the facts may be somewhat abbreviated,\nas this is the fourth time that Fuller’s case has come before us.\nWe refer the reader to our two prior published decisions for\nadditional background. See Fuller v. Lynch, 833 F.3d 866 (7th\nCir. 2016) (“Fuller I”); Fuller v. Sessions, 879 F.3d 265 (7th Cir.\n2018) (“Fuller II”).\n Fuller entered the country legally on a fiancé visa in 1999\nand married an American citizen the following year. In 2004,\nhe pleaded guilty to attempted criminal sexual assault and an\nIllinois court ordered him to serve a term of 30 months’\nprobation. After he later violated the terms of his probation,\nFuller was re-sentenced to a prison term of four years.\n Following Fuller’s release from prison in 2014, the Depart-\nment of Homeland Security (“DHS”) initiated removal\nproceedings against him. The government charged, and the\nBoard would later agree, that Fuller was removable from the\nUnited States pursuant to 8 U.S.C. § 1227(a)(1)(D)(i) because he\nhad lost his conditional permanent resident status. (In 2004,\nFuller and his wife, whom he divorced the following year,\nfailed to appear for a mandatory interview with immigration\nofficials, triggering the revocation of his conditional residency\nstatus.)2 And because, as the Board would also agree, Fuller’s\nconviction for attempted criminal sexual assault constituted a\n\n\n2\n The government alleged that Fuller was removable on other grounds, but\nthe Board found it unnecessary to reach these other grounds. Fuller does\nnot contest that he is removable on the ground that he lost his status as a\nconditional permanent resident of the United States.\n\n4 No. 17-3176\n\n“particularly serious crime,” he was disqualified from seeking\nwithholding of removal under both the Immigration and\nNationality Act and the CAT. See 8 U.S.C. § 1231(b)(3)(B)(ii).\n Fuller instead sought deferral of his removal under the\nCAT, alleging that he was likely to be tortured as a bisexual\nwere he returned to Jamaica. See 8 C.F.R. §§ 208.16(c)(4),\n208.17(a).3 In a hearing before the Immigration Judge (“IJ”),\nFuller testified to a history of sexual relationships with both\nmen and women beginning in his preteen years and continuing\nthrough his (by then dissolved) marriage to a U.S. citizen.\nFuller also recounted a number of incidents in Jamaica in\nwhich he was physically and verbally attacked by those who\nperceived him to be gay; one of these incidents involved a\nshooting by a homophobic mob in the gay-friendly resort town\nof Ocho Rios. Fuller further indicated that his sisters had\ndisowned him for his sexual orientation. In addition to his\ntestimony, Fuller presented the IJ with seven letters from his\nchildren and friends, attesting to both his bisexuality and to the\nviolence he had experienced in Jamaica on account of his\nsexual orientation.\n The IJ found that Fuller’s testimony was not credible; and\nbecause she disbelieved his testimony and also questioned the\nveracity of the letters he had submitted, the IJ concluded that\n\n\n3\n For purposes of the CAT, torture is defined to include “any act by which\nsevere pain or suffering, whether physical or mental, is intentionally\ninflicted on a person … for any reason based on discrimination of any kind,\nwhen such pain or suffering is inflicted by or at the instigation of or with\nthe consent or acquiescence of a public official or other person acting in an\nofficial capacity.” 8 C.F.R. § 208.18(a)(1).\n\nNo. 17-3176 5\n\nFuller had not established that he is bisexual and as such faces\na likelihood of torture if he is forced to return to Jamaica. She\nconsequently denied his request for relief under the CAT. A.R.\n181–202. In finding that Fuller’s testimony was not credible, the\nIJ cited discrepancies both as to certain basic facts (including\nthe number and names of sisters, as well as confusing his sister\nwith his mother in his testimony) and as to the details of the\nprior instances of violence he allegedly had experienced in\nJamaica (including a ten-year discrepancy as to the timing of\nthe Ocho Rios shooting and which of his former boyfriends\nwas present at the incident, as recounted in his written state-\nment versus his subsequent testimony in court). As for the\nsupporting letters from Fuller’s friends, the IJ noted that none\nof the authors were available to testify although two of them\nwere former boyfriends who lived in the United States. The\nletters also diverged in certain respects from Fuller’s testi-\nmony: one letter suggested that Fuller had been shot on\nmultiple occasions in Jamaica, whereas Fuller had only\ndescribed one shooting. And all of the letters contained the\nsame centered, dotted signature line, which caused the IJ to\ndoubt their provenance. A.R. 192–96. The IJ summarized:\n [Fuller’s] credibility is seriously lacking in this case.\n He is unable to recall many of the most important\n details of the events that he claims … had an impact\n on his life, particularly with respect to his claim of\n being bisexual. He has failed to provide the Court\n with many documents that could have clarified\n many of these inconsistencies, such as medical\n records, police reports, corroborating letters of\n support or witnesses. The letters that he has pre-\n\n6 No. 17-3176\n\n sented to the Court are given very little weight\n because the Court is unable to verify their authentic-\n ity and has not had an opportunity to cross-examine\n or to even hear testimony from any of the makers of\n these statements. The respondent has given very\n little corroborative evidence to evaluate his claim\n that he is in fact bisexual and that he was in fact\n harmed in Jamaica on account of his sexual orienta-\n tion in the past.\nA.R. 195.\n In 2015, the Board affirmed the denial of CAT relief to\nFuller based on the IJ’s adverse credibility findings. A.R. 61–62.\n“[Fuller] has shown no clear error in the Immigration Judge’s\ndetailed findings of fact, to include the findings that the\nrespondent did not credibly testify and did not establish that\nhe has ever been bisexual. The respondent’s inconsistent\nstatements and implausible explanations fully support an\nadverse credibility determination.” A.R. 62 (internal record\ncitation omitted).\n Fuller then appealed to this court, but we denied his\npetition for review in a divided opinion. Fuller I, 833 F.3d 866.\nWe concluded in relevant part that the IJ’s adverse credibility\ndetermination, as affirmed by the Board, was supported by\nsubstantial evidence. Id. at 871–72. Although we acknowledged\nthat some of the IJ’s stated reasons for disbelieving Fuller were\noff the mark (including, for example, the citation of his mar-\nriage to a woman and multiple other prior heterosexual\nrelationships as a reason to think he was not bisexual), others\nwere sound. The latter included the discrepancies between his\n\nNo. 17-3176 7\n\nwritten statement and his oral testimony as to when the Ocho\nRios shooting had occurred, his confusion as to the number\nand names of his sisters (and mixing up his mother with his\nsister), and a material lie he had told government officials in\n2001 in seeking permission to visit Jamaica. We were satisfied\nthat the IJ’s adverse credibility finding was amply supported\nin these respects. Id. We added that if Fuller were able to gather\nnew evidence demonstrating that the IJ was mistaken as to his\nsexual orientation, he could ask the IJ to sua sponte reopen the\nproceeding. Id. at 872. The dissent, unpersuaded that these\ndiscrepancies cast doubt on Fuller’s claims that he was bisexual\nand had suffered violence as a result, contended that the\npetition for review should have been granted. Id. at 872–74.\n In January 2017, Fuller filed a motion asking the Board to\nreconsider and/or reopen the proceedings. A.R. 48–54. The\nprincipal contention that Fuller advanced in his motion was\nthat the IJ had erred in rejecting his representation that he is\nbisexual and as such faces likely persecution and torture upon\nhis return to Jamaica. Among other points, Fuller argued that\nhe had testified without contradiction that he is bisexual and\nhas been rejected by his family members because of his sexual\norientation; that given the hostility and violence bisexual\nindividuals experience in Jamaica, he would have no reason to\nfalsely characterize himself as bisexual; that for the same\nreasons, it was difficult for him to locate gay or bisexual\nJamaicans who would put themselves at risk by giving\ntestimony that would confirm his bisexuality; that the inconsis-\ntencies and mistakes in his testimony before the IJ were due to\nhis fear of being returned to Jamaica; and that the IJ’s rationale\nfor discrediting his testimony betrayed her own misunder-\n\n8 No. 17-3176\n\nstandings about bisexuality. A.R. 50–52, 54. Fuller added that\nhe had been able to obtain affidavits—actually, letters—from\nindividuals who supported his claim that had not been\navailable to him previously. A.R. 53.\n The Board denied Fuller’s motion in February 2017. A.R. 43.\nThe Board noted both that the motion was untimely and that,\nalthough Fuller referenced new affidavits that were unavail-\nable to him previously, “he has not submitted such evidence\nwith the motion, nor has he shown that a different outcome\nmay be warranted based on the new evidence.” A.R. 43.\n On receipt of the Board’s order denying his motion, Fuller\nfiled what he styled as a “Statement of Notice to Appeal\n(motion to reopen).” A.R. 22. In that statement, Fuller chal-\nlenged the Board’s declaration that he had not submitted the\nnew evidence referred to in his motion to reopen, observing,\n“The new evidence was the cornerstone of my motion so there\nis no way that it would not be sent in with the motion. I think\nthat this was a clerical mishap that caused this and I am now\nmaking sure the new pieces of evidence are included.” A.R. 22.\nFuller went on to summarize briefly his basis for asking the\nBoard to reopen his removal proceeding (and on what grounds\nhe was seeking deferral of removal), and concluded his\nstatement with the following: “I have new evidence to submit\nto the court to help to prove my case. I pray that I will be given\nthe chance to prove my credibility in court with the help of the\nnew evidence, and garner a positive outcome to my situation.”\nA.R. 22. He attached to the statement copies of the three letters\nreferred to in his prior motion to reconsider and/or reopen.\n\nNo. 17-3176 9\n\n The Board treated Fuller’s “statement” as a second motion\nto reopen, and denied that motion. A.R. 3–4. The Board noted\nin the first instance that the motion was barred in both number\nand untimeliness, and that Fuller had not identified any\napplicable exception to those limits. Nor, in the Board’s view,\nhad Fuller demonstrated that the circumstances of his case\nwere so exceptional as to warrant the exercise of the Board’s\nauthority to sua sponte reopen the proceedings. A.R. 3. The\nBoard explained:\n Even accepting [Fuller’s] argument that he previ-\n ously submitted his proffered letters of support, we\n find no basis on which to alter our October 27, 2015\n dismissal of his appeal or our previous denial of his\n motion to reopen. [Fuller’s] motion does not chal-\n lenge our conclusions regarding his credibility or his\n eligibility for deferral of removal, and we do not\n find that his letters of support would materially alter\n these findings. …\nA.R. 3 (internal record citations omitted).\n Fuller then filed the instant petition for review of the\nBoard’s order, along with a request that we stay his removal\npending resolution of the merits of his petition. After first\ndenying Fuller a stay, see Fuller II, 879 F.3d 265, we ultimately\nagreed to stay his removal and appointed counsel to represent\nhim. With the benefit of briefing and argument, we now\nproceed to the merits of Fuller’s petition for review.\n\n10 No. 17-3176\n\n II.\n We begin by addressing the limits of our jurisdiction. With\nexceptions not applicable here, a petitioner is limited to one\nmotion to reopen filed within 90 days of the Board’s final\nadministrative decision. See 8 U.S.C. § 1229a(c)(7)(A) & (C)(i);\n8 C.F.R. § 1003.2(c)(2). Fuller sought reopening long after the\n90-day time limit had expired and, consequently, his only\nrecourse was to ask the Board to exercise its authority to\nreopen the removal proceeding sua sponte, see 8 C.F.R.\n§ 1003.2(a) (“The Board may at any time reopen on its own\nmotion any case in which it has rendered a decision.”), a power\nthe Board has said it will reserve for “exceptional situations,”\nIn re J– J–, 21 I. & N. Dec. 976, 984 (B.I.A. 1997); see also In re\nG– D–, 22 I. & N. Dec. 1132, 1133–34 (B.I.A. 1999). Because the\ngoverning regulation permits but does not require the Board\nto exercise this power and there is no law defining what\nsituations will qualify as “exceptional,” there is no meaningful\nstandard by which to evaluate the exercise of the Board’s\ndiscretion, and consequently the merits of the Board’s decision\nto deny a motion to reopen sua sponte are unreviewable. Anaya-\nAguilar v. Holder, 683 F.3d 369, 372 (7th Cir. 2012) (“Anaya-\nAguilar I”) (collecting cases); see also Fuller II, 879 F.3d at 268.\nBut we do possess the authority to recognize and address\nconstitutional transgressions and other legal errors that the\nBoard may have committed in disposing of such a motion, see\n8 U.S.C. § 1252(a)(2)(D); Fuller II, 879 F.3d at 268; Zambrano-\nReyes v. Holder, 725 F.3d 744, 751 (7th Cir. 2013); Anaya-Aguilar\nv. Holder, 697 F.3d 1189, 1190 (7th Cir. 2012) (clarifying Anaya-\nAguilar I on denial of rehearing), including whether Board’s\nstated rationale for denying such a motion indicates that it\n\nNo. 17-3176 11\n\nignored evidence that the alien tendered in support of his\nrequest, Fuller II, 879 F.3d at 268 (citing Joseph v. Lynch, 793 F.3d\n739, 741–42 (7th Cir. 2015)). Contrary to the government’s\nargument, the REAL ID Act of 2005, which stripped us of the\nauthority to review various discretionary decisions of the\nBoard, did not alter our ability to address such legal errors. See\n§ 1252(a)(2)(D); Cevilla v. Gonzales, 446 F.3d 658, 660 (7th Cir.\n2006).4\n Fuller charges the Board with two legal errors in disposing\nof his motion to reopen. He contends first that the Board\nmisapprehended the thrust of his motion to reopen and the\nsignificance of the additional letters of support he submitted in\nsupport of the motion. The Board understood Fuller not to be\nchallenging its conclusions as to his credibility or his eligibility\nfor deferral of removal. But that understanding cannot be\nsquared with the substance of his motion, which was a direct\nchallenge to these conclusions, Fuller argues. Fuller also\ncontends that the Board’s summary rejection of his new\nevidence as “insufficient to materially alter” its adverse\nfindings was so perfunctory as to preclude confirmation that\nthe Board gave meaningful consideration to his evidence.\n\n\n4\n At oral argument, the government’s counsel suggested that because Fuller\nis seeking reopening in order to renew his request for relief under the CAT,\nand because a denial of relief under the CAT itself is reviewable by this\ncourt, see Teneng v. Holder, 602 F. App’x 340, 347 (7th Cir. 2015) (non-\nprecedential decision); Wani Site v. Holder, 656 F.3d 590, 593 (7th Cir. 2011),\nsection 1252(a)(2)(D) does not apply to the Board’s refusal to exercise its\nauthority to sua sponte reopen the proceedings. Because that contention was\nnot raised in the government’s brief, we deem it waived. E.g., Pope v. Perdue,\n889 F.3d 410, 417 n.4 (7th Cir. 2018).\n\n12 No. 17-3176\n\nBecause we agree with Fuller that the Board mischaracterized\nthe basis for his motion, and because we can have no confi-\ndence that its error did not taint the exercise of its discretion as\nto the merits of the motion, we will remand the matter to the\nBoard on that basis, without deciding whether the Board,\nabsent that error, was obligated to say more than it did in\ndenying Fuller’s request that it reopen the removal proceeding\nsua sponte.\n We should note at the outset that we regard Fuller’s\n“Statement of Notice to Appeal (motion to reopen),” which the\nBoard treated as a second motion to reopen sua sponte, simply\nas an effort to supplement the record with the three new letters\nof support that were somehow missing from Fuller’s prior\nmotion. The “Statement,” as we read it, did not purport to\nmake any new arguments in favor of reopening or even to\naddress the Board’s rationale in denying his prior motion,\nbeyond tendering the letters that the Board had said were\nmissing from Fuller’s prior submission. Certainly it was within\nthe Board’s authority to characterize Fuller’s “Statement” as a\nsecond motion to reopen; we do not mean to suggest other-\nwise. But, in determining whether the Board committed any\nlegal error, we shall evaluate the Board’s order disposing of\nthat second motion in light of the arguments Fuller advanced\nboth in his “Statement” and in his first motion to reopen, which\nwere of one piece.\n The Board said in its order that Fuller was not challenging\nits prior conclusions regarding his credibility or his eligibility\nfor deferral of removal; but that declaration cannot be recon-\nciled with either the letter or the spirit of Fuller’s request for\nrelief. Nowhere in either his motion to reopen or in his follow-\n\nNo. 17-3176 13\n\nup “Statement” did Fuller purport to forgo a challenge to the\nIJ’s finding (as sustained by the Board) that he was not credible\nas to his sexual orientation and history of persecution in\nJamaica and that, consequently, he could not claim eligibility\nfor deferral of removal under the CAT as a bisexual who was\nlikely to be tortured. Indeed, considering that the Board’s 2015\norder had deemed Fuller ineligible for deferral of removal on\nthe strength of the IJ’s finding that he was not credible as to his\npurported sexual orientation, it would be surprising if Fuller’s\nmotion did not challenge the Board’s conclusions as to his\ncredibility and, in turn, his eligibility for deferral of removal. It\nis true that Fuller made statements in his motion to reopen to\nthe effect that the IJ’s adverse credibility determination “cannot\nand does not preclude him from being a bisexual” and “does\nnot change the fact that [t]he Respondent is bisexual.” A.R. 51.\nBut such statements cannot reasonably be construed as\naccepting, even for the sake of argument, the IJ’s credibility\nfinding. The entire thrust of the motion to reopen was that\nFuller is, in fact, bisexual and has in fact, experienced violence\nin Jamaica as a result of his sexual orientation; that the IJ’s\nrationale in discrediting him on these points was suspect; and\nthat the new letters of support tendered in support of his\nrequest to reopen would eliminate any doubt as to the likeli-\nhood that he will be tortured if forced to return to Jamaica. If\nFuller did not say so expressly, it was nonetheless clear from\nthe substance of his arguments that he meant to challenge the\nadverse credibility determination and the resulting finding that\nhe had no basis on which to seek deferral of removal. See A.R.\n51 (“The pertinent facts should be that [Fuller] testified without\ncontradiction that he [is] bisexual, [and] he was rejected by his\n\n14 No. 17-3176\n\nfamily because of this.”); A.R. 54 (“The Immigration Judge’s\nassertion that [Fuller] was not in danger if removed to Jamaica\nis clearly a decision made with the lack of in-depth investiga-\ntion by the fact-finders in this case.”). And, indeed, Fuller\nultimately did say this expressly in his “Statement”: “I have\nnew evidence to submit to the court to help to prove my case.\nI pray that I will be given the chance to prove my credibility in\ncourt with the help of the new evidence … .” A.R. 22.\n So the Board’s understanding of Fuller’s motion to\nreopen—and of what challenges he was purportedly forgo-\ning—was erroneous. And to the extent that misunderstanding\nnecessarily affected how the Board exercised its discretion as\nto the merits of his motion, it amounts to a legal error that\nentitles him to relief. We have repeatedly said that the Board\ncommits a legal error within our jurisdiction to address when\nit ignores, misapplies, or fails to meaningfully consider the\nevidence an alien has submitted in support of his motion to\nreopen sua sponte. See Arej v. Sessions, 852 F.3d 665, 667 (7th Cir.\n2017); Ni v. Holder, 715 F.3d 620, 630 (7th Cir. 2013); Moosa v.\nHolder, 644 F.3d 380, 386 (7th Cir. 2011). Contrary to the\ngovernment’s suggestion, our ability to recognize such an error\nis not dependent on the particular reasons why an alien is\nasking the Board to exercise its sua sponte authority, be it a\nsubsequent change in the law, see In re G– D–, supra, 22 I. & N.\nDec. at 1135, or (as here) the availability of new evidence\nsupporting the alien’s claim for relief. When the Board\nmischaracterizes the evidence tendered or misapprehends the\npurpose for which it is offered, it has not complied with its\nduty to recognize and consider the basis on which the alien has\n\nNo. 17-3176 15\n\nasked the Board to exercise its regulatory authority to reopen\nthe proceedings sua sponte. See Arej, 852 F.3d at 667.\n We acknowledge that the Board, after stating that Fuller\nwas not challenging its findings as to his credibility and\neligibility for deferral of removal, added that “we do not find\nthat his letters of support would materially alter these find-\nings,”(A.R. 3); but that addition does not convince us that we\nshould deny Fuller’s petition for review. Having misappre-\nhended or mischaracterized what findings Fuller was or was\nnot challenging in his motion to reopen, we cannot be confi-\ndent that the Board’s additional half-sentence as to the import\nof Fuller’s new evidence represents an independent and well-\nconsidered alternative ground for the Board’s judgment. We\nmight have more assurance in that regard had the Board said\nsomething more about the letters of support and why the\nBoard did not think they would materially alter its assessment\nof whether he is entitled to deferral of removal. But the Board’s\nfailure to elaborate on this point leaves us with no assurance\nthat the Board’s exercise of discretion was unaffected by its\nerror in appreciating the purpose of Fuller’s new evidence. To\nbe clear, our point is not that the Board must say enough to\nconvince us that the Board exercised its discretion “correctly”\non Fuller’s motion to reopen; the merits of its ruling are of\ncourse beyond the limited scope of our review. But in the\nimmediate wake of a grave mischaracterization of the basis for\nFuller’s motion, the Board’s additional boilerplate observation\nthat Fuller’s new letters would not materially alter its prior\nadverse findings cannot eradicate doubt as to whether the\nBoard actually considered Fuller’s evidence and understood\nwhat he was arguing based on that evidence. Wholly apart\n\n16 No. 17-3176\n\nfrom the question of how much the Board was obligated in the\nfirst instance to say in disposing of Fuller’s motion, the glaring\nerror in what it did say suggests it may never have given\nmeaningful consideration to Fuller’s evidence. The Board’s\norder as written leaves us in the same position we would be if\nits stated rationale indicated that it had altogether ignored the\nevidence and arguments Fuller put before it. See Joseph, 793\nF.3d at 741–42; Kiorkis v. Holder, 634 F.3d 924, 928 (7th Cir.\n2011); Iglesias v. Mukasey, 540 F.3d 528, 531 (7th Cir. 2008).\n The merits of Fuller’s case for the sua sponte reopening of\nhis removal proceeding are for the Board and the Board alone\nto judge. Nothing in our opinion should be construed as a\nsignal that we believe Fuller is entitled to reopening; our views\non that question are, in any event, irrelevant. Suffice it to say\nthat the Board in this case plainly misapprehended the basis for\nFuller’s motion and then dispensed with the merits of the\nmotion in a perfunctory half-sentence, giving us no assurance\nthat it genuinely exercised its discretion as to what Fuller was\nactually arguing. The Board’s legal error compels us to return\nthe matter to the Board for reconsideration.\n III.\n We GRANT the petition for review and REMAND the case\nto the Board for further proceedings consistent with this\nopinion.\n\n17 No. 17‐3176\n[END_CASE]", "role": "user" } ]
4,584,037		Maurice Lewis v. City of Chicago	2019-01-23	17-1510	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before RIPPLE, SYKES, and BARRETT, Circuit Judges.", "parties": "", "opinions": [{"author": "Diane S. Sykes", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-1510\nMAURICE LEWIS,\n Plaintiff-Appellant,\n\n v.\n\nCITY OF CHICAGO, et al.,\n Defendants-Appellees.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 16-CV-7592 — Amy J. St. Eve, Judge.\n ____________________\n\n ARGUED FEBRUARY 6, 2018 — DECIDED JANUARY 23, 2019\n ____________________\n\n\n Before RIPPLE, SYKES, and BARRETT, Circuit Judges.\n SYKES, Circuit Judge. Maurice Lewis spent more than two\nyears in pretrial detention in the Cook County Jail based on\npolice reports falsely implicating him for unlawfully pos-\nsessing a firearm. After the charges against him were\ndropped, Lewis sued the City of Chicago and six police\nofficers under 42 U.S.C. § 1983 seeking damages for violation\n\f2 No. 17-1510\n\nof his rights under the Fourth Amendment and the Due\nProcess Clause of the Fourteenth Amendment.\n The district court dismissed the suit, ruling that both\nclaims were time-barred. Lewis appealed. Twelve days later\nthe Supreme Court decided Manuel v. City of Joliet\n(“Manuel I”), 137 S. Ct. 911, 920 (2017), clarifying that deten-\ntion without probable cause violates the Fourth Amendment\n“when it precedes, but also when it follows, the start of legal\nprocess in a criminal case.” Id. at 918. The Court declined to\ndecide when such claims accrue, instead remanding the case\nto this court to resolve that issue. Id. at 922. In September the\nManuel panel held that a Fourth Amendment claim for\nwrongful pretrial detention accrues on the date the detention\nends. Manuel v. City of Joliet (“Manuel II”), 903 F.3d 667, 670\n(7th Cir. 2018).\n The combined effect of Manuel I and II saves part of\nLewis’s case. Consistent with Manuel I, Lewis pleaded a\nviable Fourth Amendment claim for unlawful pretrial\ndetention. And Manuel II confirms that the claim is timely\nbecause Lewis filed it within two years of his release from\ndetention.\n The due-process claim is another matter. Manuel I makes\nclear that the Fourth Amendment, not the Due Process\nClause, governs a claim for wrongful pretrial detention. To\nthe extent Hurt v. Wise, 880 F.3d 831, 843–44 (7th Cir. 2018),\nholds otherwise, it is incompatible with Manuel I and II and\nis overruled. 1 We therefore reverse the dismissal of the\n\n\n\n1 Because this opinion resolves a conflict in our circuit caselaw, it was\ncirculated to all judges in active service. See 7TH CIR. R. 40(e). None\n\fNo. 17-1510 3\n\nFourth Amendment claim and affirm the dismissal of the\ndue-process claim, though on different grounds.\n I. Background\n On September 12, 2013, Chicago police officers searched\nan apartment on West Walton Street where they encoun-\ntered Lewis and two others. During the search, the officers\ndiscovered a handgun. Lewis alleges that the officers had no\nbasis to believe the gun was his. He claims that he didn’t live\nat the apartment and never told the officers otherwise. He\nfurther alleges that the officers never found anything in the\napartment indicating that he lived there.\n The officers arrested Lewis for illegally possessing the\nfirearm. Lewis claims that the officers prepared police\nreports falsely stating that he “had admitted to residing in\nthe Walton Street Apartment” and that the officers “had\nfound and seized evidence establishing that [Lewis] resided\nin the Walton Street Apartment.”\n The day after Lewis’s arrest, a state-court judge held a\nprobable-cause hearing and found cause to believe that\nLewis illegally possessed the weapon, 720 ILL. COMP. STAT.\n5/24-1.1(a), and violated Illinois’s armed habitual criminal\nstatute, id. § 5/24-1.7(a). The judge ordered Lewis held for\ntrial. Two weeks later a prosecutor amended the charges,\nand a different judge held a probable-cause hearing on the\nnew charges. Officer Abraham Mora testified that the search\nof the apartment uncovered a handgun and two documents\naddressed to Lewis at the Walton Street address. The judge\n\n\nfavored a hearing en banc. Circuit Judge Amy J. St. Eve did not partici-\npate.\n\f4 No. 17-1510\n\nfound probable cause to detain Lewis for trial. He sat in the\nCook County Jail for two years until the charges were\ndropped on September 29, 2015.\n On July 26, 2016, Lewis sued the City and six officers un-\nder § 1983 alleging that he was held in jail pending trial\nbased on falsified evidence, violating his rights under the\nFourth Amendment and the Fourteenth Amendment’s Due\nProcess Clause. He also raised a claim under Illinois law for\nmalicious prosecution.\n The defendants moved to dismiss the complaint under\nRule 12(b)(6) of the Federal Rules of Civil Procedure. The\njudge granted the motion, dismissing the constitutional\nclaims with prejudice after finding them time-barred under\nthe two-year statute of limitations applicable to § 1983 claims\nin Illinois. The judge then relinquished supplemental juris-\ndiction over the state-law claim, dismissing it without\nprejudice.\n II. Discussion\n We review a Rule 12(b)(6) dismissal de novo. Jakupovic v.\nCurran, 850 F.3d 898, 901 (7th Cir. 2017). To survive a motion\nto dismiss, a complaint must contain “factual content that\nallows the court to draw the reasonable inference that the\ndefendant is liable for the misconduct alleged.” Ashcroft v.\nIqbal, 556 U.S. 662, 678 (2009).\nA. Fourth Amendment Claim\n Lewis maintains that he pleaded a viable Fourth\nAmendment claim for unlawful pretrial detention based on\nfalsified evidence. He also argues that the claim is timely.\nUnder Manuel I and II, he is correct on both points.\n\fNo. 17-1510 5\n\n The Fourth Amendment protects “[t]he right of the peo-\nple to be secure in their persons … against unreasonable …\nseizures.” U.S. CONST. amend. IV. A person is “seized”\nwhenever an official “restrains his freedom of movement”\nsuch that he is “not free to leave.” Brendlin v. California,\n551 U.S. 249, 254–55 (2007). “[T]he general rule [is] that\nFourth Amendment seizures are ‘reasonable’ only if based\non probable cause to believe that the individual has commit-\nted a crime.” Bailey v. United States, 568 U.S. 186, 192 (2013)\n(internal quotation marks omitted).\n Lewis alleges that he was detained—that is to say,\n“seized”—in the Cook County Jail for two years based on\nfalsified police reports and that this injury is actionable\nunder § 1983 as a violation of his Fourth Amendment right\nto be free from unreasonable seizure. Our circuit caselaw\nonce foreclosed this theory. See, e.g., Newsome v. McCabe,\n256 F.3d 747, 750 (7th Cir. 2001). Prior to Manuel I, our cases\nheld that “once detention by reason of arrest turns into\ndetention by way of arraignment—once police action gives\nway to legal process—the Fourth Amendment falls out of\nthe picture and the detainee’s claim that the detention is\nimproper becomes a claim of malicious prosecution violative\nof due process.” Llovet v. City of Chicago, 761 F.3d 759, 763\n(7th Cir. 2014).\n The Supreme Court superseded this circuit precedent in\nManuel I. Elijah Manuel was arrested for possession of\nunlawful drugs. After a probable-cause hearing based on\nevidence allegedly fabricated by the police, a local judge\nfound probable cause and sent Manuel to the county jail to\nawait trial. There he sat for 48 days until the prosecutor\ndismissed the charge. Manuel I, 137 S. Ct. at 915–16. He\n\f6 No. 17-1510\n\nsought damages under § 1983 alleging that his pretrial\ndetention violated the Fourth Amendment. The district court\ndismissed the claim based on binding circuit precedent and\nwe affirmed. Id. at 916. The Supreme Court reversed, hold-\ning that Manuel stated a Fourth Amendment claim when he\nsought relief “not merely for his (pre-legal-process) arrest,\nbut also for his (post-legal process) pretrial detention.” Id. at\n919.\n The Court jettisoned the malicious-prosecution analogy\nand the due-process source of the right, instead grounding\nthe claim in long-established Fourth Amendment doctrine:\n The Fourth Amendment prohibits government\n officials from detaining a person in the absence\n of probable cause. That can happen when the\n police hold someone without any reason before\n the formal onset of a criminal proceeding. But\n it can also occur when legal process itself goes\n wrong—when, for example, a judge’s\n probable-cause determination is predicated\n solely on a police officer’s false statements.\n Then, too, a person is confined without consti-\n tutionally adequate justification. Legal process\n has gone forward, but it has done nothing to\n satisfy the Fourth Amendment’s probable-\n cause requirement. And for that reason, it can-\n not extinguish the detainee’s Fourth Amend-\n ment claim—or somehow, as the Seventh\n Circuit has held, convert that claim into one\n founded on the Due Process Clause.\nId. at 918–19 (citations omitted).\n\fNo. 17-1510 7\n\n Manuel I thus clarified that the constitutional injury aris-\ning from a wrongful pretrial detention rests on the funda-\nmental Fourth Amendment principle that a pretrial\ndetention is a “seizure”—both before formal legal process\nand after—and is justified only on probable cause. Id. at 918.\nManuel alleged that his detention was not supported by\nprobable cause because the judge’s order holding him for\ntrial was based only on “police fabrications.” Id. at 919. If\nthat proved to be true, his detention was unreasonable in\nviolation of the Fourth Amendment. Id.\n Put another way, the initiation of formal legal process\n“did not expunge Manuel’s Fourth Amendment claim\nbecause the process he received failed to establish what that\nAmendment makes essential for pretrial detention—\nprobable cause to believe he committed a crime.” Id. at 919–\n20. As we explained in our decision on remand in Manuel II,\na Fourth Amendment claim for wrongful pretrial detention\nis concerned with “the detention rather than the existence of\ncriminal charges.” 903 F.3d at 670.\n Lewis’s allegations are materially indistinguishable from\nManuel’s. He has therefore pleaded a plausible Fourth\nAmendment claim. The officers respond with an assertion of\nqualified immunity. “Qualified immunity attaches when an\nofficial’s conduct does not violate clearly established statuto-\nry or constitutional rights of which a reasonable person\nwould have known.” Kisela v. Hughes, 138 S. Ct. 1148, 1151\n(2018) (per curiam) (quoting White v. Pauly, 137 S. Ct. 548,\n551 (2017) (per curiam)). Qualified immunity requires a two-\npart inquiry: we must determine (1) whether facts alleged or\nshown by a plaintiff make out a violation of a constitutional\nright, and (2) if so, whether that right was clearly established\n\f8 No. 17-1510\n\nat the time of the defendant’s alleged misconduct. Pearson v.\nCallahan, 555 U.S. 223, 232 (2009).\n It has been clear since at least Franks v. Delaware, 438 U.S.\n154 (1978), that falsifying the factual basis for a judicial\nprobable-cause determination violates the Fourth Amend-\nment. A judicial determination of probable cause is normally\nentitled to a presumption of validity, but\n this presumption is premised on an “assump-\n tion … that there will be a truthful showing” of\n probable cause. [Franks, 438 U.S.] at 164–65, 98\n S. Ct. 2674 (emphasis in original). Accordingly,\n the presumption may give way on a showing\n that the officer who sought the warrant “know-\n ingly or intentionally or with a reckless disre-\n gard for the truth, made false statements to the\n judicial officer, and that the false statements\n were necessary to the judicial officer’s deter-\n mination that probable cause existed for the ar-\n rest.” Beauchamp v. City of Noblesville, Ind.,\n 320 F.3d 733, 742–43 (7th Cir. 2003) (citing\n Franks, 438 U.S. at 155–56, 98 S. Ct. 2674).\nWhitlock v. Brown, 596 F.3d 406, 410 (7th Cir. 2010) (omission\nin original) (alterations omitted).\n Lewis alleges that the officers falsely asserted, both in\ntheir police reports and in testimony at the probable-cause\nhearing, that he admitted residing at the apartment where\nthe gun was found and that they found evidence showing\nthat he lived there. Accepting these allegations as true, as we\nmust at this stage, no reasonable officer could have thought\nthis conduct was constitutionally permissible. It makes no\n\fNo. 17-1510 9\n\ndifference that our circuit caselaw situated the constitutional\nviolation in the Due Process Clause rather than the Fourth\nAmendment.\n The question remains whether the claim is timely. A\n§ 1983 claim borrows the statute of limitations for analogous\npersonal-injury claims in the forum state; in Illinois that\nperiod is two years. 735 ILL. COMP. STAT. 5/13-202; Wallace v.\nKato, 549 U.S. 384, 388–89 (2007). But federal law determines\nwhen the claim accrues. Wallace, 549 U.S. at 388–89.\n Manuel II addressed the accrual question the Supreme\nCourt remanded in Manuel I, holding that a Fourth Amend-\nment claim for wrongful pretrial detention accrues when the\ndetention ceases. 903 F.3d at 669. Two considerations sup-\nported this conclusion. First, because the constitutional\nviolation is “ongoing” rather than “discrete,” the claim\naccrues when the ongoing violation ends. Id. Second, “a\nclaim cannot accrue until the would-be plaintiff is entitled to\nsue, yet the existence of detention forbids a suit for damages\ncontesting that detention’s validity.” Id. at 670 (citing Preiser\nv. Rodriguez, 411 U.S. 475 (1973), and Heck v. Humphrey,\n512 U.S. 477 (1994)).\n Under Manuel II, Lewis’s Fourth Amendment claim is\ntimely. Lewis remained in jail until the charges against him\nwere dropped on September 29, 2015. He filed this § 1983\nsuit less than a year later on July 26, 2016, well within the\ntwo-year statute of limitations. 2 He is entitled to move\nforward on his Fourth Amendment claim.\n\n2 We note that the Supreme Court has granted certiorari to resolve a\ncircuit split on the claim-accrual question reserved in Manuel I. See\nMcDonough v. Smith, No. 18-485, 2019 WL 166879 (Mem.) (Jan. 11, 2019).\n\f10 No. 17-1510\n\nB. Due-Process Claim\n Lewis argues that this same misconduct by law enforce-\nment—falsifying the police reports that led to his pretrial\ndetention—also violated his right to due process, giving rise\nto an additional constitutional claim under § 1983. Manuel I\nholds otherwise, as does our decision on remand in\nManuel II.\n To reiterate, Manuel I explained that “[i]f the complaint is\nthat a form of legal process resulted in pretrial detention\nunsupported by probable cause, then the right allegedly\ninfringed lies in the Fourth Amendment.” 137 S. Ct. at 919.\nAs we’ve noted above, Manuel I clarified that the initiation of\nformal legal process “cannot extinguish the detainee’s\nFourth Amendment claim—or somehow, as the Seventh Circuit\nhas held, convert that claim into one founded on the Due Process\nClause.” Id. at 918–19 (emphasis added). It’s now clear that a\n§ 1983 claim for unlawful pretrial detention rests exclusively\non the Fourth Amendment.\n Lewis relies on Hurt v. Wise as support for his position\nthat pretrial detention based on fabricated evidence violates\nrights secured by two constitutional provisions—the Fourth\nAmendment and the Due Process Clause of the Fourteenth—\nand is actionable under § 1983 as two separate constitutional\nclaims. Hurt conflicts with Manuel I and II, so we take this\nopportunity to clear up the conflict.\n In Hurt the police arrested three siblings for their sus-\npected roles in the death of their uncle. “But one by one,\neach was absolved”: one sibling was never criminally\ncharged, the next saw the charges against her dropped after\nfour months in jail, and the third was acquitted at trial after\n\fNo. 17-1510 11\n\neight months in jail. Hurt, 880 F.3d at 835. The three siblings\nsued the officers accusing them of fabricating evidence—\nincluding confessions—and seeking relief under § 1983 and\nIllinois law. Id. The officers moved for summary judgment\nbased on qualified immunity. The district court denied the\nmotion, id. at 839, and we mostly affirmed.\n As relevant here, Hurt first rejected the officers’ qualified-\nimmunity defense on the Fourth Amendment claim, con-\ncluding that in light of the evidence in the summary-\njudgment record, a reasonable trier of fact could find that the\nplaintiffs “were arrested without even arguable probable\ncause[] and thus in violation of the Fourth Amendment.” Id.\nat 843 (citing Manuel I, 137 S. Ct. at 918–19).\n Two of the Hurt plaintiffs—the two that were held in jail\npending trial—argued that the same police misconduct\nsupported an additional claim for violation of their right to\ndue process, relying on the malicious-prosecution/due-\nprocess theory embedded in our circuit caselaw. See, e.g.,\nJulian v. Hanna, 732 F.3d 842 (7th Cir. 2013); Newsome,\n256 F.3d 747. Hurt determined that Manuel I had not dis-\nturbed the general rule of the Newsome line of cases: while\nthere is “no free-standing constitutional tort of malicious\nprosecution,” other constitutional rights protect people\nagainst “abusive arrests [and] fabrication of evidence.”\n880 F.3d at 843. What mattered was that the plaintiffs had\n“identified the constitutional right at issue”—the Due\nProcess Clause, which “forbids the [S]tate from depriving a\nperson of liberty (including by pre-trial detention) based on\nmanufactured evidence.” Id.\n But in Manuel II—decided nine months after Hurt—we\nexplained that all § 1983 claims for wrongful pretrial deten-\n\f12 No. 17-1510\n\ntion—whether based on fabricated evidence or some other\ndefect—sound in the Fourth Amendment. Like the plaintiffs\nin Hurt, Manuel relied on the tort of malicious prosecution\nas an analogy. 903 F.3d at 669. We explained that while this\n“might have seemed sensible before the Supreme Court\nspoke,” after Manuel I it is the “wrong characterization”;\nindeed, “the Justices deprecated the analogy to malicious\nprosecution.” Id. at 669–70 (citing Manuel I, 137 S. Ct. at 917–\n20). Instead, the constitutional right in question is the “right\nnot to be held in custody without probable cause,” the\nviolation of which gives rise to a “plain-vanilla Fourth\nAmendment” claim under § 1983 because the essential\nconstitutional wrong is the “absence of probable cause that\nwould justify the detention.” Id. at 670 (citing Manuel I,\n137 S. Ct. at 917–20). In other words, the Fourth Amend-\nment, not the Due Process Clause, is the source of the right\nin a § 1983 claim for unlawful pretrial detention, whether\nbefore or after the initiation of formal legal process.\n We overrule precedent only in limited circumstances; a\nclear intracircuit conflict is one of them. Glaser v. Wound Care\nConsultants, Inc., 570 F.3d 907, 915–16 (7th Cir. 2009).\nManuel II and Hurt cannot be reconciled. Indeed, Hurt is\nhard to square with Manuel I. The Supreme Court held that\nthe initiation of formal legal process following an arrest does\nnot convert a Fourth Amendment unreasonable-seizure\nclaim “into one founded on the Due Process Clause.”\n137 S. Ct. at 919. The injury of wrongful pretrial detention\nmay be remedied under § 1983 as a violation of the Fourth\nAmendment, not the Due Process Clause. To the extent Hurt\nholds otherwise, it is overruled.\n\fNo. 17-1510 13\n\n We close by noting the important point that a claim for\nwrongful pretrial detention based on fabricated evidence is\ndistinct from a claim for wrongful conviction based on fabri-\ncated evidence: “[C]onvictions premised on deliberately\nfabricated evidence will always violate the defendant’s right\nto due process.” Avery v. City of Milwaukee, 847 F.3d 433, 439\n(7th Cir. 2017) (emphasis added); see also Mooney v. Holohan,\n294 U.S. 103, 112 (1935) (explaining that the use of perjured\ntestimony “to procure the conviction and imprisonment of a\ndefendant is as inconsistent with the rudimentary demands\nof justice as is the obtaining of a like result by intimidation”);\nWhitlock v. Brueggemann, 682 F.3d 567, 580 (7th Cir. 2012).\nMoreover, misconduct of this type that results in a convic-\ntion might also violate the accused’s right to due process\nunder the rubric of Brady v. Maryland, 373 U.S. 83 (1963), and\nKyles v. Whitley, 514 U.S. 419 (1995), if government officials\nsuppressed evidence of the fabrication. Avery, 847 F.3d at\n443–44. We reiterate that we deal here only with a claim of\nwrongful pretrial detention, not a claim of wrongful convic-\ntion.\n * * *\n Applying Manuel I and II, we hold that Lewis timely filed\na viable Fourth Amendment claim for wrongful pretrial\ndetention. We therefore reverse the dismissal of that claim\nand remand for further proceedings. Under Manuel I and II,\nthe Due Process Clause does not apply, so the judgment is\notherwise affirmed.\n AFFIRMED in part and REVERSED AND REMANDED in part.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4361290/", "author_raw": "Diane S. Sykes"}]}	RIPPLE	SYKES	BARRETT	1		{"RIPPLE": ", Circuit", "SYKES": ", Circuit", "BARRETT": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4584037/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Maurice Lewis v. City of Chicago\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-23\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-1510\nMAURICE LEWIS,\n Plaintiff-Appellant,\n\n v.\n\nCITY OF CHICAGO, et al.,\n Defendants-Appellees.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 16-CV-7592 — Amy J. St. Eve, Judge.\n ____________________\n\n ARGUED FEBRUARY 6, 2018 — DECIDED JANUARY 23, 2019\n ____________________\n\n\n Before RIPPLE, SYKES, and BARRETT, Circuit Judges.\n SYKES, Circuit Judge. Maurice Lewis spent more than two\nyears in pretrial detention in the Cook County Jail based on\npolice reports falsely implicating him for unlawfully pos-\nsessing a firearm. After the charges against him were\ndropped, Lewis sued the City of Chicago and six police\nofficers under 42 U.S.C. § 1983 seeking damages for violation\n\f2 No. 17-1510\n\nof his rights under the Fourth Amendment and the Due\nProcess Clause of the Fourteenth Amendment.\n The district court dismissed the suit, ruling that both\nclaims were time-barred. Lewis appealed. Twelve days later\nthe Supreme Court decided Manuel v. City of Joliet\n(“Manuel I”), 137 S. Ct. 911, 920 (2017), clarifying that deten-\ntion without probable cause violates the Fourth Amendment\n“when it precedes, but also when it follows, the start of legal\nprocess in a criminal case.” Id. at 918. The Court declined to\ndecide when such claims accrue, instead remanding the case\nto this court to resolve that issue. Id. at 922. In September the\nManuel panel held that a Fourth Amendment claim for\nwrongful pretrial detention accrues on the date the detention\nends. Manuel v. City of Joliet (“Manuel II”), 903 F.3d 667, 670\n(7th Cir. 2018).\n The combined effect of Manuel I and II saves part of\nLewis’s case. Consistent with Manuel I, Lewis pleaded a\nviable Fourth Amendment claim for unlawful pretrial\ndetention. And Manuel II confirms that the claim is timely\nbecause Lewis filed it within two years of his release from\ndetention.\n The due-process claim is another matter. Manuel I makes\nclear that the Fourth Amendment, not the Due Process\nClause, governs a claim for wrongful pretrial detention. To\nthe extent Hurt v. Wise, 880 F.3d 831, 843–44 (7th Cir. 2018),\nholds otherwise, it is incompatible with Manuel I and II and\nis overruled. 1 We therefore reverse the dismissal of the\n\n\n\n1 Because this opinion resolves a conflict in our circuit caselaw, it was\ncirculated to all judges in active service. See 7TH CIR. R. 40(e). None\n\fNo. 17-1510 3\n\nFourth Amendment claim and affirm the dismissal of the\ndue-process claim, though on different grounds.\n I. Background\n On September 12, 2013, Chicago police officers searched\nan apartment on West Walton Street where they encoun-\ntered Lewis and two others. During the search, the officers\ndiscovered a handgun. Lewis alleges that the officers had no\nbasis to believe the gun was his. He claims that he didn’t live\nat the apartment and never told the officers otherwise. He\nfurther alleges that the officers never found anything in the\napartment indicating that he lived there.\n The officers arrested Lewis for illegally possessing the\nfirearm. Lewis claims that the officers prepared police\nreports falsely stating that he “had admitted to residing in\nthe Walton Street Apartment” and that the officers “had\nfound and seized evidence establishing that [Lewis] resided\nin the Walton Street Apartment.”\n The day after Lewis’s arrest, a state-court judge held a\nprobable-cause hearing and found cause to believe that\nLewis illegally possessed the weapon, 720 ILL. COMP. STAT.\n5/24-1.1(a), and violated Illinois’s armed habitual criminal\nstatute, id. § 5/24-1.7(a). The judge ordered Lewis held for\ntrial. Two weeks later a prosecutor amended the charges,\nand a different judge held a probable-cause hearing on the\nnew charges. Officer Abraham Mora testified that the search\nof the apartment uncovered a handgun and two documents\naddressed to Lewis at the Walton Street address. The judge\n\n\nfavored a hearing en banc. Circuit Judge Amy J. St. Eve did not partici-\npate.\n\f4 No. 17-1510\n\nfound probable cause to detain Lewis for trial. He sat in the\nCook County Jail for two years until the charges were\ndropped on September 29, 2015.\n On July 26, 2016, Lewis sued the City and six officers un-\nder § 1983 alleging that he was held in jail pending trial\nbased on falsified evidence, violating his rights under the\nFourth Amendment and the Fourteenth Amendment’s Due\nProcess Clause. He also raised a claim under Illinois law for\nmalicious prosecution.\n The defendants moved to dismiss the complaint under\nRule 12(b)(6) of the Federal Rules of Civil Procedure. The\njudge granted the motion, dismissing the constitutional\nclaims with prejudice after finding them time-barred under\nthe two-year statute of limitations applicable to § 1983 claims\nin Illinois. The judge then relinquished supplemental juris-\ndiction over the state-law claim, dismissing it without\nprejudice.\n II. Discussion\n We review a Rule 12(b)(6) dismissal de novo. Jakupovic v.\nCurran, 850 F.3d 898, 901 (7th Cir. 2017). To survive a motion\nto dismiss, a complaint must contain “factual content that\nallows the court to draw the reasonable inference that the\ndefendant is liable for the misconduct alleged.” Ashcroft v.\nIqbal, 556 U.S. 662, 678 (2009).\nA. Fourth Amendment Claim\n Lewis maintains that he pleaded a viable Fourth\nAmendment claim for unlawful pretrial detention based on\nfalsified evidence. He also argues that the claim is timely.\nUnder Manuel I and II, he is correct on both points.\n\fNo. 17-1510 5\n\n The Fourth Amendment protects “[t]he right of the peo-\nple to be secure in their persons … against unreasonable …\nseizures.” U.S. CONST. amend. IV. A person is “seized”\nwhenever an official “restrains his freedom of movement”\nsuch that he is “not free to leave.” Brendlin v. California,\n551 U.S. 249, 254–55 (2007). “[T]he general rule [is] that\nFourth Amendment seizures are ‘reasonable’ only if based\non probable cause to believe that the individual has commit-\nted a crime.” Bailey v. United States, 568 U.S. 186, 192 (2013)\n(internal quotation marks omitted).\n Lewis alleges that he was detained—that is to say,\n“seized”—in the Cook County Jail for two years based on\nfalsified police reports and that this injury is actionable\nunder § 1983 as a violation of his Fourth Amendment right\nto be free from unreasonable seizure. Our circuit caselaw\nonce foreclosed this theory. See, e.g., Newsome v. McCabe,\n256 F.3d 747, 750 (7th Cir. 2001). Prior to Manuel I, our cases\nheld that “once detention by reason of arrest turns into\ndetention by way of arraignment—once police action gives\nway to legal process—the Fourth Amendment falls out of\nthe picture and the detainee’s claim that the detention is\nimproper becomes a claim of malicious prosecution violative\nof due process.” Llovet v. City of Chicago, 761 F.3d 759, 763\n(7th Cir. 2014).\n The Supreme Court superseded this circuit precedent in\nManuel I. Elijah Manuel was arrested for possession of\nunlawful drugs. After a probable-cause hearing based on\nevidence allegedly fabricated by the police, a local judge\nfound probable cause and sent Manuel to the county jail to\nawait trial. There he sat for 48 days until the prosecutor\ndismissed the charge. Manuel I, 137 S. Ct. at 915–16. He\n\f6 No. 17-1510\n\nsought damages under § 1983 alleging that his pretrial\ndetention violated the Fourth Amendment. The district court\ndismissed the claim based on binding circuit precedent and\nwe affirmed. Id. at 916. The Supreme Court reversed, hold-\ning that Manuel stated a Fourth Amendment claim when he\nsought relief “not merely for his (pre-legal-process) arrest,\nbut also for his (post-legal process) pretrial detention.” Id. at\n919.\n The Court jettisoned the malicious-prosecution analogy\nand the due-process source of the right, instead grounding\nthe claim in long-established Fourth Amendment doctrine:\n The Fourth Amendment prohibits government\n officials from detaining a person in the absence\n of probable cause. That can happen when the\n police hold someone without any reason before\n the formal onset of a criminal proceeding. But\n it can also occur when legal process itself goes\n wrong—when, for example, a judge’s\n probable-cause determination is predicated\n solely on a police officer’s false statements.\n Then, too, a person is confined without consti-\n tutionally adequate justification. Legal process\n has gone forward, but it has done nothing to\n satisfy the Fourth Amendment’s probable-\n cause requirement. And for that reason, it can-\n not extinguish the detainee’s Fourth Amend-\n ment claim—or somehow, as the Seventh\n Circuit has held, convert that claim into one\n founded on the Due Process Clause.\nId. at 918–19 (citations omitted).\n\fNo. 17-1510 7\n\n Manuel I thus clarified that the constitutional injury aris-\ning from a wrongful pretrial detention rests on the funda-\nmental Fourth Amendment principle that a pretrial\ndetention is a “seizure”—both before formal legal process\nand after—and is justified only on probable cause. Id. at 918.\nManuel alleged that his detention was not supported by\nprobable cause because the judge’s order holding him for\ntrial was based only on “police fabrications.” Id. at 919. If\nthat proved to be true, his detention was unreasonable in\nviolation of the Fourth Amendment. Id.\n Put another way, the initiation of formal legal process\n“did not expunge Manuel’s Fourth Amendment claim\nbecause the process he received failed to establish what that\nAmendment makes essential for pretrial detention—\nprobable cause to believe he committed a crime.” Id. at 919–\n20. As we explained in our decision on remand in Manuel II,\na Fourth Amendment claim for wrongful pretrial detention\nis concerned with “the detention rather than the existence of\ncriminal charges.” 903 F.3d at 670.\n Lewis’s allegations are materially indistinguishable from\nManuel’s. He has therefore pleaded a plausible Fourth\nAmendment claim. The officers respond with an assertion of\nqualified immunity. “Qualified immunity attaches when an\nofficial’s conduct does not violate clearly established statuto-\nry or constitutional rights of which a reasonable person\nwould have known.” Kisela v. Hughes, 138 S. Ct. 1148, 1151\n(2018) (per curiam) (quoting White v. Pauly, 137 S. Ct. 548,\n551 (2017) (per curiam)). Qualified immunity requires a two-\npart inquiry: we must determine (1) whether facts alleged or\nshown by a plaintiff make out a violation of a constitutional\nright, and (2) if so, whether that right was clearly established\n\f8 No. 17-1510\n\nat the time of the defendant’s alleged misconduct. Pearson v.\nCallahan, 555 U.S. 223, 232 (2009).\n It has been clear since at least Franks v. Delaware, 438 U.S.\n154 (1978), that falsifying the factual basis for a judicial\nprobable-cause determination violates the Fourth Amend-\nment. A judicial determination of probable cause is normally\nentitled to a presumption of validity, but\n this presumption is premised on an “assump-\n tion … that there will be a truthful showing” of\n probable cause. [Franks, 438 U.S.] at 164–65, 98\n S. Ct. 2674 (emphasis in original). Accordingly,\n the presumption may give way on a showing\n that the officer who sought the warrant “know-\n ingly or intentionally or with a reckless disre-\n gard for the truth, made false statements to the\n judicial officer, and that the false statements\n were necessary to the judicial officer’s deter-\n mination that probable cause existed for the ar-\n rest.” Beauchamp v. City of Noblesville, Ind.,\n 320 F.3d 733, 742–43 (7th Cir. 2003) (citing\n Franks, 438 U.S. at 155–56, 98 S. Ct. 2674).\nWhitlock v. Brown, 596 F.3d 406, 410 (7th Cir. 2010) (omission\nin original) (alterations omitted).\n Lewis alleges that the officers falsely asserted, both in\ntheir police reports and in testimony at the probable-cause\nhearing, that he admitted residing at the apartment where\nthe gun was found and that they found evidence showing\nthat he lived there. Accepting these allegations as true, as we\nmust at this stage, no reasonable officer could have thought\nthis conduct was constitutionally permissible. It makes no\n\fNo. 17-1510 9\n\ndifference that our circuit caselaw situated the constitutional\nviolation in the Due Process Clause rather than the Fourth\nAmendment.\n The question remains whether the claim is timely. A\n§ 1983 claim borrows the statute of limitations for analogous\npersonal-injury claims in the forum state; in Illinois that\nperiod is two years. 735 ILL. COMP. STAT. 5/13-202; Wallace v.\nKato, 549 U.S. 384, 388–89 (2007). But federal law determines\nwhen the claim accrues. Wallace, 549 U.S. at 388–89.\n Manuel II addressed the accrual question the Supreme\nCourt remanded in Manuel I, holding that a Fourth Amend-\nment claim for wrongful pretrial detention accrues when the\ndetention ceases. 903 F.3d at 669. Two considerations sup-\nported this conclusion. First, because the constitutional\nviolation is “ongoing” rather than “discrete,” the claim\naccrues when the ongoing violation ends. Id. Second, “a\nclaim cannot accrue until the would-be plaintiff is entitled to\nsue, yet the existence of detention forbids a suit for damages\ncontesting that detention’s validity.” Id. at 670 (citing Preiser\nv. Rodriguez, 411 U.S. 475 (1973), and Heck v. Humphrey,\n512 U.S. 477 (1994)).\n Under Manuel II, Lewis’s Fourth Amendment claim is\ntimely. Lewis remained in jail until the charges against him\nwere dropped on September 29, 2015. He filed this § 1983\nsuit less than a year later on July 26, 2016, well within the\ntwo-year statute of limitations. 2 He is entitled to move\nforward on his Fourth Amendment claim.\n\n2 We note that the Supreme Court has granted certiorari to resolve a\ncircuit split on the claim-accrual question reserved in Manuel I. See\nMcDonough v. Smith, No. 18-485, 2019 WL 166879 (Mem.) (Jan. 11, 2019).\n\f10 No. 17-1510\n\nB. Due-Process Claim\n Lewis argues that this same misconduct by law enforce-\nment—falsifying the police reports that led to his pretrial\ndetention—also violated his right to due process, giving rise\nto an additional constitutional claim under § 1983. Manuel I\nholds otherwise, as does our decision on remand in\nManuel II.\n To reiterate, Manuel I explained that “[i]f the complaint is\nthat a form of legal process resulted in pretrial detention\nunsupported by probable cause, then the right allegedly\ninfringed lies in the Fourth Amendment.” 137 S. Ct. at 919.\nAs we’ve noted above, Manuel I clarified that the initiation of\nformal legal process “cannot extinguish the detainee’s\nFourth Amendment claim—or somehow, as the Seventh Circuit\nhas held, convert that claim into one founded on the Due Process\nClause.” Id. at 918–19 (emphasis added). It’s now clear that a\n§ 1983 claim for unlawful pretrial detention rests exclusively\non the Fourth Amendment.\n Lewis relies on Hurt v. Wise as support for his position\nthat pretrial detention based on fabricated evidence violates\nrights secured by two constitutional provisions—the Fourth\nAmendment and the Due Process Clause of the Fourteenth—\nand is actionable under § 1983 as two separate constitutional\nclaims. Hurt conflicts with Manuel I and II, so we take this\nopportunity to clear up the conflict.\n In Hurt the police arrested three siblings for their sus-\npected roles in the death of their uncle. “But one by one,\neach was absolved”: one sibling was never criminally\ncharged, the next saw the charges against her dropped after\nfour months in jail, and the third was acquitted at trial after\n\fNo. 17-1510 11\n\neight months in jail. Hurt, 880 F.3d at 835. The three siblings\nsued the officers accusing them of fabricating evidence—\nincluding confessions—and seeking relief under § 1983 and\nIllinois law. Id. The officers moved for summary judgment\nbased on qualified immunity. The district court denied the\nmotion, id. at 839, and we mostly affirmed.\n As relevant here, Hurt first rejected the officers’ qualified-\nimmunity defense on the Fourth Amendment claim, con-\ncluding that in light of the evidence in the summary-\njudgment record, a reasonable trier of fact could find that the\nplaintiffs “were arrested without even arguable probable\ncause[] and thus in violation of the Fourth Amendment.” Id.\nat 843 (citing Manuel I, 137 S. Ct. at 918–19).\n Two of the Hurt plaintiffs—the two that were held in jail\npending trial—argued that the same police misconduct\nsupported an additional claim for violation of their right to\ndue process, relying on the malicious-prosecution/due-\nprocess theory embedded in our circuit caselaw. See, e.g.,\nJulian v. Hanna, 732 F.3d 842 (7th Cir. 2013); Newsome,\n256 F.3d 747. Hurt determined that Manuel I had not dis-\nturbed the general rule of the Newsome line of cases: while\nthere is “no free-standing constitutional tort of malicious\nprosecution,” other constitutional rights protect people\nagainst “abusive arrests [and] fabrication of evidence.”\n880 F.3d at 843. What mattered was that the plaintiffs had\n“identified the constitutional right at issue”—the Due\nProcess Clause, which “forbids the [S]tate from depriving a\nperson of liberty (including by pre-trial detention) based on\nmanufactured evidence.” Id.\n But in Manuel II—decided nine months after Hurt—we\nexplained that all § 1983 claims for wrongful pretrial deten-\n\f12 No. 17-1510\n\ntion—whether based on fabricated evidence or some other\ndefect—sound in the Fourth Amendment. Like the plaintiffs\nin Hurt, Manuel relied on the tort of malicious prosecution\nas an analogy. 903 F.3d at 669. We explained that while this\n“might have seemed sensible before the Supreme Court\nspoke,” after Manuel I it is the “wrong characterization”;\nindeed, “the Justices deprecated the analogy to malicious\nprosecution.” Id. at 669–70 (citing Manuel I, 137 S. Ct. at 917–\n20). Instead, the constitutional right in question is the “right\nnot to be held in custody without probable cause,” the\nviolation of which gives rise to a “plain-vanilla Fourth\nAmendment” claim under § 1983 because the essential\nconstitutional wrong is the “absence of probable cause that\nwould justify the detention.” Id. at 670 (citing Manuel I,\n137 S. Ct. at 917–20). In other words, the Fourth Amend-\nment, not the Due Process Clause, is the source of the right\nin a § 1983 claim for unlawful pretrial detention, whether\nbefore or after the initiation of formal legal process.\n We overrule precedent only in limited circumstances; a\nclear intracircuit conflict is one of them. Glaser v. Wound Care\nConsultants, Inc., 570 F.3d 907, 915–16 (7th Cir. 2009).\nManuel II and Hurt cannot be reconciled. Indeed, Hurt is\nhard to square with Manuel I. The Supreme Court held that\nthe initiation of formal legal process following an arrest does\nnot convert a Fourth Amendment unreasonable-seizure\nclaim “into one founded on the Due Process Clause.”\n137 S. Ct. at 919. The injury of wrongful pretrial detention\nmay be remedied under § 1983 as a violation of the Fourth\nAmendment, not the Due Process Clause. To the extent Hurt\nholds otherwise, it is overruled.\n\fNo. 17-1510 13\n\n We close by noting the important point that a claim for\nwrongful pretrial detention based on fabricated evidence is\ndistinct from a claim for wrongful conviction based on fabri-\ncated evidence: “[C]onvictions premised on deliberately\nfabricated evidence will always violate the defendant’s right\nto due process.” Avery v. City of Milwaukee, 847 F.3d 433, 439\n(7th Cir. 2017) (emphasis added); see also Mooney v. Holohan,\n294 U.S. 103, 112 (1935) (explaining that the use of perjured\ntestimony “to procure the conviction and imprisonment of a\ndefendant is as inconsistent with the rudimentary demands\nof justice as is the obtaining of a like result by intimidation”);\nWhitlock v. Brueggemann, 682 F.3d 567, 580 (7th Cir. 2012).\nMoreover, misconduct of this type that results in a convic-\ntion might also violate the accused’s right to due process\nunder the rubric of Brady v. Maryland, 373 U.S. 83 (1963), and\nKyles v. Whitley, 514 U.S. 419 (1995), if government officials\nsuppressed evidence of the fabrication. Avery, 847 F.3d at\n443–44. We reiterate that we deal here only with a claim of\nwrongful pretrial detention, not a claim of wrongful convic-\ntion.\n * * *\n Applying Manuel I and II, we hold that Lewis timely filed\na viable Fourth Amendment claim for wrongful pretrial\ndetention. We therefore reverse the dismissal of that claim\nand remand for further proceedings. Under Manuel I and II,\nthe Due Process Clause does not apply, so the judgment is\notherwise affirmed.\n AFFIRMED in part and REVERSED AND REMANDED in part.\n[END_CASE]", "role": "user" } ]
4,584,038		Dale Kleber v. CareFusion Corporation	2019-01-23	17-1206	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before WOOD, Chief Judge, and BAUER, FLAUM, EASTERBROOK, KANNE, ROVNER, SYKES, HAMILTON, BARRETT, BRENNAN, SCUDDER, and ST. EVE, Circuit Judges.", "parties": "", "opinions": [{"author": "by EASTERBROOK, Circuit Judge.", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-1206\nDALE E. KLEBER,\n Plaintiff-Appellant,\n v.\n\nCAREFUSION CORPORATION,\n Defendant-Appellee.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 1:15-cv-1994 — Sharon Johnson Coleman, Judge.\n ____________________\n\n ARGUED SEPTEMBER 6, 2018 — DECIDED JANUARY 23, 2019\n ____________________\n\n Before WOOD, Chief Judge, and BAUER, FLAUM,\nEASTERBROOK, KANNE, ROVNER, SYKES, HAMILTON, BARRETT,\nBRENNAN, SCUDDER, and ST. EVE, Circuit Judges.\n SCUDDER, Circuit Judge. After Dale Kleber unsuccessfully\napplied for a job at CareFusion Corporation, he sued for age\ndiscrimination on a theory of disparate impact liability. The\ndistrict court dismissed his claim, concluding that § 4(a)(2) of\nthe Age Discrimination in Employment Act did not authorize\njob applicants like Kleber to bring a disparate impact claim\n\n2 No. 17-1206\n\nagainst a prospective employer. A divided panel of this court\nreversed. We granted en banc review and, aﬃrming the dis-\ntrict court, now hold that the plain language of § 4(a)(2) makes\nclear that Congress, while protecting employees from dispar-\nate impact age discrimination, did not extend that same pro-\ntection to outside job applicants. While our conclusion is\ngrounded in § 4(a)(2)’s plain language, it is reinforced by the\nADEA’s broader structure and history.\n I\n In March 2014, Kleber, an attorney, applied for a senior in-\nhouse position in CareFusion’s law department. The job de-\nscription required applicants to have “3 to 7 years (no more\nthan 7 years) of relevant legal experience.” Kleber was 58 at\nthe time he applied and had more than seven years of perti-\nnent experience. CareFusion passed over Kleber and instead\nhired a 29-year-old applicant who met but did not exceed the\nprescribed experience requirement.\n Kleber responded by bringing this action and pursuing\nclaims for both disparate treatment and disparate impact un-\nder § 4(a)(1) and § 4(a)(2) of the ADEA. Relying on our prior\ndecision in EEOC v. Francis W. Parker School, 41 F.3d 1073 (7th\nCir. 1994), the district court granted CareFusion’s motion to\ndismiss Kleber’s disparate impact claim, reasoning that the\ntext of § 4(a)(2) did not extend to outside job applicants.\nKleber then voluntarily dismissed his separate claim for dis-\nparate treatment liability under § 4(a)(1). This appeal fol-\nlowed.\n\nNo. 17-1206 3\n\n II\n A\n We begin with the plain language of § 4(a)(2). “If the stat-\nutory language is plain, we must enforce it according to its\nterms.” King v. Burwell, 135 S. Ct. 2480, 2489 (2015). This pre-\ncept reinforces the constitutional principle of separation of\npowers, for our role is to interpret the words Congress enacts\ninto law without altering a statute’s clear limits. See Puerto\nRico v. Franklin Cal. Tax-Free Trust, 136 S. Ct. 1938, 1949 (2016).\n Section 4(a)(2) makes it unlawful for an employer\n to limit, segregate, or classify his employees in\n any way which would deprive or tend to de-\n prive any individual of employment opportuni-\n ties or otherwise adversely aﬀect his status as an\n employee, because of such individual’s age.\n29 U.S.C. § 623(a)(2).\n By its terms, § 4(a)(2) proscribes certain conduct by em-\nployers and limits its protection to employees. The prohibited\nconduct entails an employer acting in any way to limit, segre-\ngate, or classify its employees based on age. The language of\n§ 4(a)(2) then goes on to make clear that its proscriptions ap-\nply only if an employer’s actions have a particular impact—\n“depriv[ing] or tend[ing] to deprive any individual of em-\nployment opportunities or otherwise adversely aﬀect[ing] his\nstatus as an employee.” This language plainly demonstrates\nthat the requisite impact must befall an individual with “sta-\ntus as an employee.” Put most simply, the reach of § 4(a)(2)\ndoes not extend to applicants for employment, as common\ndictionary definitions confirm that an applicant has no “status\nas an employee.” See Merriam-Webster’s Collegiate\n\n4 No. 17-1206\n\nDictionary 60, 408 (11th ed. 2003) (defining “applicant” as\n“one who applies,” including, for example, “a job [appli-\ncant],” while defining “employee” as “one employed by an-\nother usu[ally] for wages or salary and in a position below the\nexecutive level”).\n Subjecting the language of § 4(a)(2) to even closer scrutiny\nreinforces our conclusion. Congress did not prohibit just con-\nduct that “would deprive or tend to deprive any individual of\nemployment opportunities.” It went further. Section 4(a)(2)\nemploys a catchall formulation—“or otherwise adversely af-\nfect his status as an employee”—to extend the proscribed con-\nduct. Congress’s word choice is significant and has a unifying\neﬀect: the use of “or otherwise” serves to stitch the prohibi-\ntions and scope of § 4(a)(2) into a whole, first by making clear\nthat the proscribed acts cover all conduct “otherwise af-\nfect[ing] his status as an employee,” and, second, by limiting\nthe reach of the statutory protection to an individual with\n“status as an employee.” See Villarreal v. R.J. Reynolds Tobacco\nCo., 839 F.3d 958, 964 (11th Cir. 2016) (en banc) (interpreting\n§ 4(a)(2) the same way and explaining that the “or otherwise”\nlanguage “operates as a catchall: the specific items that pre-\ncede it are meant to be subsumed by what comes after the ‘or\notherwise’”).\n Kleber begs to diﬀer, arguing that § 4(a)(2)’s coverage\nextends beyond employees to applicants for employment. He\ngets there by focusing on the language in the middle of\n§ 4(a)(2)—“deprive or tend to deprive any individual of\nemployment opportunities”—and contends that the use of\nthe expansive term “any individual” shows that Congress\nwished to cover outside job applicants. If the only question\nwere whether a job applicant counts as “any individual,”\n\nNo. 17-1206 5\n\nKleber would be right. But time and again the Supreme Court\nhas instructed that statutory interpretation requires reading a\ntext as a whole, and here that requires that we refrain from\nisolating two words when the language surrounding those\ntwo words supplies essential meaning and resolves the\nquestion before us. See, e.g., United Sav. Ass’n of Tex. v. Timbers\nof Inwood Forest Assocs., Ltd., 484 U.S. 365, 371 (1988)\n(describing statutory construction as a “holistic endeavor”);\nsee also K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988)\n(directing courts to consider “the language and design of the\nstatute as a whole”); Trustees of Chicago Truck Drivers v.\nLeaseway Transp. Corp., 76 F.3d 824, 828 (7th Cir. 1996)\n(emphasizing the same points and explaining that the\nmeaning of statutory text comes from reading language in\ncontext and not words in insolation).\n Reading § 4(a)(2) in its entirety shows that Congress em-\nployed the term “any individual” as a shorthand reference to\nsomeone with “status as an employee.” This construction is\nclear from Congress’s use of language telling us that the pro-\nvision covers “any individual” deprived of an employment\nopportunity because such conduct “adversely aﬀects his sta-\ntus as an employee.” Put diﬀerently, ordinary principles of\ngrammatical construction require connecting “any individ-\nual” (the antecedent) with the subsequent personal possessive\npronoun “his,” and upon doing so we naturally read “any in-\ndividual” as referring and limited to someone with “status as\nan employee.” See Flora v. United States, 362 U.S. 145, 150\n(1960) (“This Court naturally does not review congressional\nenactments as a panel of grammarians; but neither do we re-\ngard ordinary principles of English prose as irrelevant to a\nconstruction of those enactments.”). The clear takeaway is\nthat a covered individual must be an employee.\n\n6 No. 17-1206\n\n Our conclusion becomes ironclad the moment we look be-\nyond § 4(a)(2) and ask whether other provisions of the ADEA\ndistinguish between employees and applicants. See Mount\nLemmon Fire Dist. v. Guido, 139 S. Ct. 22, 24 (2018) (endorsing\nthis same approach when interpreting the ADEA’s various\ndefinitions of “employer”). We do not have to look far to see\nthat the answer is yes.\n Right next door to § 4(a)(2) is § 4(a)(1), the ADEA’s dispar-\nate treatment provision. In § 4(a)(1), Congress made it unlaw-\nful for an employer “to fail or refuse to hire or to discharge any\nindividual or otherwise discriminate against any individual\nwith respect to his compensation, terms, conditions, or privi-\nleges of employment, because of such individual’s age.” 29\nU.S.C. § 623(a)(1) (emphasis added). All agree that § 4(a)(1),\nby its terms, covers both employees and applicants. See, e.g.,\nKralman v. Ill. Dep’t of Veterans’ Aﬀairs, 23 F.3d 150, 152–53 (7th\nCir. 1994) (treating an applicant’s right to bring a claim under\n§ 4(a)(1) as unquestioned). Compelling this consensus is\n§ 4(a)(1)’s use of the words “to fail or refuse to hire or to dis-\ncharge,” which make clear that “any individual” includes\nsomeone seeking to be hired. 29 U.S.C. § 623(a)(1).\n Yet a side-by-side comparison of § 4(a)(1) with § 4(a)(2)\nshows that the language in the former plainly covering appli-\ncants is conspicuously absent from the latter. Section 4(a)(2)\nsays nothing about an employer’s decision “to fail or refuse to\nhire … any individual” and instead speaks only in terms of\nan employer’s actions that “adversely aﬀect his status as an\nemployee.” We cannot conclude this diﬀerence means noth-\ning: “when ‘Congress includes particular language in one sec-\ntion of a statute but omits it in another’—let alone in the very\nnext provision—the Court presumes that Congress intended\n\nNo. 17-1206 7\n\na diﬀerence in meaning.” Loughrin v. United States, 573 U.S.\n351, 358 (2014) (quoting Russello v. United States, 464 U.S. 16,\n23 (1983)).\n There is even more. A short distance away from § 4(a)(2)\nis § 4(c)(2), which disallows labor organizations from engag-\ning in particular conduct. Section 4(c)(2), in pertinent part,\nmakes it unlawful for a labor organization\n to limit, segregate, or classify its membership …\n in any way which would deprive or tend to de-\n prive any individual of employment opportuni-\n ties … or otherwise adversely aﬀect his status as\n an employee or as an applicant for employment, be-\n cause of such individualʹs age.\n29 U.S.C. § 623(c)(2) (emphasis added).\n The parallel with § 4(a)(2) is striking: both provisions de-\nfine the prohibited conduct in terms of action that “would de-\nprive or tend to deprive any individual of employment op-\nportunities,” only then to include the “or otherwise adversely\naﬀect” catchall language. But there is a big diﬀerence between\nthe two provisions: § 4(c)(2)’s protection extends to any indi-\nvidual with “status as an employee or as an applicant for em-\nployment,” whereas Congress limited § 4(a)(2)’s reach only to\nsomeone with “status as an employee.”\n Consider yet another example. In § 4(d), Congress ad-\ndressed employer retaliation by making it “unlawful for an\nemployer to discriminate against any of his employees or appli-\ncants for employment” because such an individual has opposed\ncertain unlawful practices of age discrimination. 29 U.S.C.\n§ 623(d) (emphasis added). Here, too, the distinction between\n“employees” and “applicants” jumps oﬀ the page.\n\n8 No. 17-1206\n\n Each of these provisions distinguishes between employees\nand applicants. It is implausible that Congress intended no\nsuch distinction in § 4(a)(2), however, and instead used the\nterm employees to cover both employees and applicants. To\nconclude otherwise runs afoul of the Supreme Court’s ad-\nmonition to take statutes as we find them by giving eﬀect to\ndiﬀerences in meaning evidenced by diﬀerences in language.\nSee Mount Lemmon Fire Dist., 139 S. Ct. at 26 (declining the\ndefendant’s invitation to take language from one part of a sen-\ntence and then “reimpose it for the portion” of the sentence in\nwhich Congress omitted the same language); see also Dep’t of\nHomeland Sec. v. MacLean, 135 S. Ct. 913, 919 (2015) (explaining\nthat “Congress generally acts intentionally when it uses par-\nticular language in one section of a statute but omits it in an-\nother”).\n In the end, the plain language of § 4(a)(2) leaves room for\nonly one interpretation: Congress authorized only employees\nto bring disparate impact claims.\n B\n Kleber urges a diﬀerent conclusion in no small part on the\nbasis of the Supreme Court’s 1971 decision in Griggs v. Duke\nPower Co., 401 U.S. 424, where the Court interpreted\n§ 703(a)(2) of Title VII and held that disparate impact was a\nviable theory of liability. Indeed, Kleber goes so far as to say\nGriggs—a case where the Court considered language in Title\nVII that at the time paralleled the language we consider\nhere—controls and mandates a decision in his favor. We dis-\nagree.\n A commonsense observation is warranted at the outset. If\nKleber is right that Griggs, a Title VII case, compels the\n\nNo. 17-1206 9\n\nconclusion that § 4(a)(2) of the ADEA authorizes outside job\napplicants to bring a disparate impact claim, we find it very\ndiﬃcult to explain why it took the Supreme Court 34 years to\nresolve whether anyone—employee or applicant—could sue\non a disparate impact theory under the ADEA, as it did in\nSmith v. City of Jackson, 544 U.S. 228 (2005). There was no need\nfor the Court to decide Smith if (all or part of) the answer came\nin Griggs. And when the Court did decide Smith the Justices’\nseparate opinions recognized the imperative of showing\nimpact to an individual’s “status as an employee” when\ndiscerning the reach of § 4(a)(2). See id. at 235–36, 236 n.6\n(plurality opinion); see id. at 266 (O’Connor, J., concurring,\njoined by Kennedy & Thomas, JJ.).\n Kleber’s position fares no better within the four corners of\nGriggs itself. Several African-American employees of Duke\nPower challenged the company’s practice of conditioning cer-\ntain job transfers and promotions on graduating from high\nschool and passing a standardized aptitude test. See 401 U.S.\nat 426. The employees sued under § 703(a) of Title VII, a pro-\nvision that in 1971 mirrored the present language of § 4(a)(2)\nof the ADEA. See id. at 426 n.1. The Court held that § 703(a)(2)\nprohibits disparate impact discrimination by proscribing\n“practices that are fair in form, but discriminatory in opera-\ntion” unless an employer can show that the challenged prac-\ntice is “related to job performance” and thus a “business ne-\ncessity.” Id. at 431.\n Kleber would have us read Griggs beyond its facts by fo-\ncusing on language in a couple of places in the Court’s opin-\nion that he sees as covering employees and applicants alike.\nWe decline the invitation. Nowhere in Griggs did the Court\nstate that its holding extended to job applicants. And that\n\n10 No. 17-1206\n\nmakes perfect sense because nothing about the case, brought\nas it was by employees of Duke Power and not outside appli-\ncants, required the Court to answer that question. The lan-\nguage that Kleber insists on reading in isolation must be read\nin context, and the totality of the Griggs opinion makes clear\nthat the Court answered whether Duke Power’s African-\nAmerican employees could bring a claim for disparate impact\nliability based on practices that kept them from pursuing dif-\nferent, higher-paying jobs within the company.\n What happened a year after Griggs cements our conclu-\nsion. In 1972, Congress amended § 703(a)(2) of Title VII—the\nprovision at issue in Griggs—by adding language to expressly\ninclude “applicants for employment.” Pub. L. No. 92-261,\n§ 8(a), 86 Stat. 109 (1972). This amendment occurred in the im-\nmediate wake of Griggs and, in this way, reflected Congress’s\nswift and clear desire to extend Title VII’s disparate impact\nprotection to job applicants. There was no need for Congress\nto amend § 703(a)(2) if the provision had always covered job\napplicants and especially if the Supreme Court had just said\nso in Griggs. To conclude otherwise renders the 1972 amend-\nment a meaningless act of the 92nd Congress, and we are re-\nluctant to conclude that substantive changes to statutes reflect\nidle acts.\n The Supreme Court endorsed this precise course of analy-\nsis—giving eﬀect to “Congress’s decision to amend Title VII’s\nrelevant provisions but not make similar changes to the\nADEA”—in Gross v. FBL Financial Servs., Inc., 557 U.S. 167, 174\n(2009). The Court there considered whether a plaintiﬀ suing\nunder § 4(a)(1) of the ADEA must establish that age was the\nbut-for cause of an employer’s adverse action. See id. at 173.\nThe plaintiﬀ urged the Court to adopt Title VII’s lesser\n\nNo. 17-1206 11\n\nstandard of race being only a motivating factor in the chal-\nlenged decision. See id. Paramount to the Court’s conclusion\nthat an ADEA plaintiﬀ must prove but-for causation were tex-\ntual diﬀerences between the ADEA and Title VII brought\nabout by Congress’s amendments to Title VII. See id. at 174\n(explaining that “Congress neglected to add such a [motivat-\ning-factor] provision to the ADEA when it amended Title VII\n[in 1991]” and emphasizing that “[w]hen Congress amends\none statutory provision but not another, it is presumed to\nhave acted intentionally”). The Court’s instruction was clear:\nprior decisions interpreting Title VII “do not control our con-\nstruction of the ADEA” where the text of the two statutes are\n“materially diﬀerent.” Id. at 173.\n And so it is here. Congress’s choice to add “applicants” to\n§ 703(a)(2) of Title VII but not to amend § 4(a)(2) of the ADEA\nin the same way is meaningful. Gross teaches that we cannot\nignore such diﬀerences in language between the two enact-\nments. And, at the risk of understatement, Gross is far from an\naberration in statutory construction. A mountain of precedent\nsupports giving eﬀect to statutory amendments. See, e.g.,\nUnited States v. Quality Stores, Inc., 572 U.S. 141, 148 (2014)\n(quoting Stone v. INS, 514 U.S. 386, 397 (1995)) (“When Con-\ngress acts to amend a statute, we presume it intends its\namendment to have real and substantial eﬀect.”); Fidelity Fin.\nServs., Inc. v. Fink, 522 U.S. 211, 220–21 (1998) (explaining that\nafter Congress modified the federal statute controlling when\na transfer of a security interest was perfected, “we see no basis\nto say that subsequent amendments removing references to\nstate-law options had the counterintuitive eﬀect of deferring\nto such [state law] options” without unwinding the statutory\namendments); United States v. Wells, 519 U.S. 482, 492–93\n(1997) (explaining that after Congress amended the federal\n\n12 No. 17-1206\n\ncriminal statute pertinent to false representations to remove\nany express reference to materiality, “the most likely infer-\nence in these circumstances is that Congress deliberately\ndropped the term ‘materiality’ without intending materiality\nto be an element of [18 U.S.C.] § 1014”); Stone, 514 U.S. at 397–\n98 (explaining that after Congress amended the Immigration\nand Naturalization Act, “[t]he reasonable construction [was]\nthat the amendment was enacted as an exception, not just to\nstate an already existing rule”).\n In no way does this analysis downplay Griggs, as our dis-\nsenting colleagues contend. We have approached Griggs as\nbinding precedent and construed its holding not only by\nreading what the Supreme Court’s opinion says (and does not\nsay), but also in light of Congress’s immediately amending\nTitle VII (but not § 4(a)(2) of the ADEA) to cover “applicants”\nas well as the broader development in the law ever since, in-\ncluding with precedents like Smith in 2005 and Gross in 2009.\n The upshot is clear: while Congress amended § 703(a)(2)\nof Title VII in 1972 to cover “applicants for employment,” it\nhas never followed suit and modified § 4(a)(2) of the ADEA in\nthe same way. And this is so despite Congress’s\ndemonstrating, just a few years after Griggs, that it knew how\nto amend the ADEA to expressly include outside job\napplicants. See Villarreal, 839 F.3d at 979–80 (Rosenbaum, J.,\nconcurring) (observing that Congress amended the ADEA in\n1974 to extend the statute’s reach to federal-government\nemployment, and in doing so, explicitly referenced both\n“employees and applicants for employment” in the new\nprovision, 29 U.S.C. § 633a).\n Today, then, § 703(a)(2) of Title VII diﬀers from § 4(a)(2) in\nat least one material respect: the protections of the former\n\nNo. 17-1206 13\n\nextend expressly to “applicants for employment,” while the\nlatter covers only individuals with “status as an employee.”\nWe underscored this exact diﬀerence 14 years ago in our opin-\nion in Francis W. Parker, and we do so again today. See 41 F.3d\nat 1077 (“The ‘mirror’ provision in the ADEA omits from its\ncoverage, ‘applicants for employment.’”). The plain language\nof § 4(a)(2) controls and compels judgment in CareFusion’s\nfavor.\n C\n Beyond his reliance on Griggs, Kleber invites us to read the\nADEA against the backdrop of Congress’s clear purpose of\nbroadly prohibiting age discrimination. On this score, he\npoints us to the Supreme Court’s decision in Robinson v. Shell\nOil Company, 519 U.S. 337 (1997) and to the report of the\nformer Secretary of the Department of Labor, Willard Wirtz.\n In Robinson, the Court held that § 704(a) of Title VII ex-\ntended not just to “employees” (a term used in § 704(a)), but\nalso to former employees. See id. at 346. The Court empha-\nsized that, while the meaning of “employees” was ambigu-\nous, Title VII’s broader structure made plain that Congress\nintended the term to cover former employees, a construction\nthat furthered Title VII’s broader purposes. None of this helps\nKleber. (Indeed, if anything, Robinson’s clear observation of\nthe distinct and separate meaning of “employees” and “appli-\ncants for employment” in § 704(a) severely undermines\nKleber’s textual argument. See id. at 344.) Robinson, in short,\nprovides direction on how courts— if confronted with statu-\ntory ambiguity—should resolve such ambiguity. There being\nno ambiguity in the meaning of § 4(a)(2) of the ADEA, our\nrole ends—an outcome on all fours with Robinson.\n\n14 No. 17-1206\n\n The Wirtz Report reflected the Labor Department’s\nresponse to Congress’s request for recommended age\ndiscrimination legislation, and a plurality of the Supreme\nCourt in Smith treated the Report as an authoritative signal of\nCongress’s intent when enacting the ADEA. See Smith, 544\nU.S. at 238. We do too.\n Nobody disputes that the Wirtz Report reinforces\nCongress’s clear aim of enacting the ADEA to prevent age\ndiscrimination in the workplace by encouraging the\nemployment of older persons, including older job applicants.\nBut we decline to resolve the question presented here on the\nbasis of broad statutory purposes or, more specifically, to\nforce an interpretation of but one provision of the ADEA\n(here, § 4(a)(2)) to advance the enactment’s full objectives.\n Our responsibility is to interpret § 4(a)(2) as it stands in the\nU.S. Code and to ask whether the provision covers outside job\napplicants. We cannot say it does and remain faithful to the\nprovision’s plain meaning. It remains the province of\nCongress to choose where to draw legislative lines and to\nmark those lines with language. Our holding gives eﬀect to\nthe plain limits embodied in the text of § 4(a)(2).\n The ADEA, moreover, is a wide-ranging statutory scheme,\nmade up of many provisions beyond § 4(a)(2). And a broader\nlook at the statute shows that outside job applicants have\nother provisions at their disposal to respond to age discrimi-\nnation. Section 4(a)(1), for example, prevents an employer\nfrom disparately treating both job applicants and employees\non the basis of age. See 29 U.S.C. § 623(a)(1). Section 4(c)(2),\nprevents a labor organization’s potential age discrimination\nagainst both job applicants and employees. See 29 U.S.C.\n§ 623(c)(2).\n\nNo. 17-1206 15\n\n Today’s decision, while unfavorable to Kleber, leaves\nteeth in § 4(a)(2). The provision protects older employees who\nencounter age-based disparate impact discrimination in the\nworkplace. And Congress, of course, remains free to do what\nthe judiciary cannot—extend § 4(a)(2) to outside job appli-\ncants, as it did in amending Title VII.\n For these reasons, we AFFIRM.\n\n16 No. 17-1206", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4361291/", "author_raw": "by EASTERBROOK, Circuit Judge."}, {"author": "EASTERBROOK, Circuit Judge, dissenting", "type": "dissent", "text": "EASTERBROOK, Circuit Judge, dissenting. I do not join the\nmajority’s opinion, because the statute lacks a plain mean-\ning. Robinson v. Shell Oil Corp., 519 U.S. 337 (1997), held that\nthe word “employees” in one part of Title VII includes ex-\nemployees. Robinson interpreted text in context. Here, too,\nthe judiciary must look outside one subsection to tell wheth-\ner “individual” in 29 U.S.C. §623(a)(2) includes applicants\nfor employment.\n But neither do I join all of Judge Hamilton’s dissent,\nwhich relies on legislative purpose. The purpose of a law is\nimputed by judges; it is not a thing to be mined out of a stat-\nute. Even when we know what direction the legislature\nwanted to move, we must know how far to go—and making\nthat choice is a legislative task. See, e.g., Rodriguez v. United\nStates, 480 U.S. 522, 525–26 (1987). Our job is to apply the en-\nacted text, the only thing to which the House, the Senate,\nand the President all subscribed, not to plumb legislators’\nhopes and goals.\n Section 623(a) provides:\n It shall be unlawful for an employer—\n (1) to fail or refuse to hire or to discharge any individual or\n otherwise discriminate against any individual with respect\n to his compensation, terms, conditions, or privileges of em-\n ployment, because of such individual’s age;\n (2) to limit, segregate, or classify his employees in any way\n which would deprive or tend to deprive any individual of\n employment opportunities or otherwise adversely aﬀect his\n status as an employee, because of such individual’s age; or\n (3) to reduce the wage rate of any employee in order to com-\n ply with this chapter.\n\nNo. 17-1206 17\n\nThe word “individual” in paragraph (1) includes applicants\nfor employment; everyone agrees on this much. “Individual”\nreappears in paragraph (2), and normally one word used in\nadjacent paragraphs means a single thing. See Antonin Scalia\n& Bryan A. Garner, Reading Law: The Interpretation of Legal\nTexts (2011) (Canon 25: Presumption of Consistent Usage).\nMaybe the trailing phrase in paragraph (2)—”otherwise ad-\nversely aﬀect his status as an employee”—implies that the\nword “individual” in paragraph (2) means only employees.\nThat’s what the majority believes. But maybe, as Part I.C of\nJudge Hamilton’s dissent suggests, this phrase establishes an\nindependent set of rights for employees, without implying\nthat applicants for employment are not “individuals.”\n The statutory context does not point ineluctably to one\nunderstanding. The majority does not explain why the stat-\nute would use “individual” in dramatically diﬀerent ways\nwithin the space of a few words. But the principal dissent\ndoes not explain how we can read “individual” in paragraph\n(2) to include “applicant” without causing paragraphs (1)\nand (2) to converge. If that happens, then paragraph (2) ap-\nplies disparate-impact analysis to all employment actions.\nThat leaves little or nothing for paragraph (1) to do, for par-\nagraph (2), no less than paragraph (1), prohibits disparate\ntreatment.\n Smith v. Jackson, 544 U.S. 228, 236 n.6 (2005) (plurality\nopinion), tells us that paragraphs (1) and (2) have diﬀerent\nscopes and that only paragraph (2) provides disparate-\nimpact liability. That conclusion is enough by itself to expose\nproblems in Part III of Judge Hamilton’s dissent, which in\nthe name of legislative purpose would extend disparate-\nimpact analysis across the board. Yet this does not help us to\n\n18 No. 17-1206\n\nknow what “individual” in paragraph (2) does mean. Per-\nhaps Justice O’Connor was right in Smith, 544 U.S. at 247–68\n(concurring opinion), and we should not impute disparate-\nimpact liability to paragraph (2). The question we are ad-\ndressing today may have no answer; it may be an artifact of\nthe way the plurality in Smith distinguished paragraph (1)\nfrom paragraph (2), and if Justice O’Connor is right there’s\nno need to search for that nonexistent answer. But that mode\nof resolving this suit is not open to a court of appeals.\n Because neither text nor purpose oﬀers a satisfactory so-\nlution, we should stop with precedent. Griggs v. Duke Power\nCo., 401 U.S. 424 (1971), treats the word “individual” in 42\nU.S.C. §2000e–2(a)(2), as it stood before an amendment in\n1972, as including applicants for employment. The pre-1972\nversion of that statute is identical to the existing text in\n§623(a); Congress copied this part of the ADEA from that\npart of Title VII. It may be that the Court in Griggs was care-\nless to treat outside applicants for employment as “individ-\nuals” in paragraph (2), but that is what the Justices did. Part\nII of Judge Hamilton’s opinion shows how this came to hap-\npen and also shows that many of the Supreme Court’s later\ndecisions read Griggs to hold that paragraph (2) in the pre-\n1972 version of Title VII applies disparate-impact theory to\noutside applicants for employment. If the Justices think that\nthis topic (or Smith itself) needs a new look, the matter is for\nthem to decide. I therefore join Part II of Judge Hamilton’s\ndissenting opinion.\n\nNo. 17-1206 19", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4361291/", "author_raw": "EASTERBROOK, Circuit Judge, dissenting"}, {"author": "HAMILTON, Circuit Judge, dissenting", "type": "dissent", "text": "HAMILTON, Circuit Judge, dissenting, joined by WOOD,\nChief Judge, and ROVNER, Circuit Judge, and joined as to Part II\nby EASTERBROOK, Circuit Judge.\n We should reverse the district court’s Rule 12(b)(6) dismis-\nsal of plaintiff Dale Kleber’s disparate impact claim and re-\nmand for further proceedings. The key provision of the Age\nDiscrimination in Employment Act prohibits both employ-\nment practices that discriminate intentionally against older\nworkers and those that have disparate impacts on older work-\ners. 29 U.S.C. § 623(a); Smith v. City of Jackson, 544 U.S. 228\n(2005). The central issue in this appeal is whether the dispar-\nate-impact provision, § 623(a)(2), protects only current em-\nployees or whether it protects current employees and outside\njob applicants.\n We should hold that the disparate-impact language in\n§ 623(a)(2) protects both outside job applicants and current\nemployees. Part I of this opinion explains why that’s the better\nreading of the statutory text that is at worst ambiguous on\ncoverage of job applicants. While other ADEA provisions pro-\ntect job applicants more clearly, the Supreme Court guides us\naway from the majority’s word-matching and toward a more\nsensible and less arbitrary reading. See Robinson v. Shell Oil\nCo., 519 U.S. 337, 341–46 (1997).\n Part II explains that protecting outside job applicants\ntracks the Supreme Court’s reading of identical statutory lan-\nguage in Title VII of the Civil Rights Act of 1964. In Griggs v.\nDuke Power Co., 401 U.S. 424, 426 n.1, 431 (1971), the Court\nfound that this same disparate-treatment language protects\nnot only current employees but also “the job-seeker”—people\nlike plaintiff Kleber. We should read the same language the\n\n20 No. 17-1206\n\nsame way. The majority tries to avoid this reasoning by nar-\nrowing Griggs and attributing significance to the 1972 amend-\nment of the Title VII disparate-impact provision. As detailed\nin Part II, the actual facts of both the Griggs litigation and the\n1972 amendment flatly contradict the majority’s glib and un-\nsupported theories.\n Part III explains that protecting both outside applicants\nand current employees is also more consistent with the pur-\npose of the Act (as set forth in the statute itself) and avoids\ndrawing an utterly arbitrary line. Neither the defendant nor\nits amici have offered a plausible policy reason why Congress\nmight have chosen to allow disparate-impact claims by cur-\nrent employees, including internal job applicants, while ex-\ncluding outside job applicants. The en banc majority does not\neven try to do so, following instead a deliberately naïve ap-\nproach to an ambiguous statutory text, closing its eyes to fifty\nyears of history, context, and application.\nI. The Text of the ADEA’s Disparate-Impact Provision\n A. Statutory Text of Disputed Provision\n We begin with the statutory language, of course. We ana-\nlyze the specific words and phrases Congress used, but we\ncannot lose sight of their “place in the overall statutory\nscheme,” since we “construe statutes, not isolated provi-\nsions.” King v. Burwell, 135 S. Ct. 2480, 2489 (2015), quoting\nFDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133\n(2000), and Graham County Soil and Water Conservation Dist. v.\nUnited States ex rel. Wilson, 559 U.S. 280, 290 (2010). As the Su-\npreme Court explained in dealing with a similar issue in Title\nVII: “The plainness or ambiguity of statutory language is de-\n\nNo. 17-1206 21\n\ntermined by reference to the language itself, the specific con-\ntext in which that language is used, and the broader context\nof the statute as a whole.” Robinson, 519 U.S. at 341, 346 (pro-\ntection of “employees” from retaliation included former em-\nployees).\n The key provision of the ADEA, 29 U.S.C. § 623(a), reads:\n It shall be unlawful for an employer—\n (1) to fail or refuse to hire or to discharge any\n individual or otherwise discriminate against\n any individual with respect to his compensa-\n tion, terms, conditions, or privileges of employ-\n ment, because of such individual’s age;\n (2) to limit, segregate, or classify his employ-\n ees in any way which would deprive or tend to\n deprive any individual of employment oppor-\n tunities or otherwise adversely affect his status\n as an employee, because of such individual’s\n age; or\n (3) to reduce the wage rate of any employee\n in order to comply with this chapter.\nThe disparate-treatment provision, paragraph (a)(1), does not\nrefer to job applicants, but it clearly applies to them by mak-\ning it unlawful for the employer “to fail or refuse to hire …\nany individual … because of such individual’s age.” The dis-\nparate-impact provision, paragraph (a)(2), also does not refer\nspecifically to applicants or hiring decisions, but its broad lan-\nguage easily reaches employment practices that hurt older job\napplicants as well as current older employees.\n\n22 No. 17-1206\n\n Start with the critical statutory language, which includes\ntwo parallel provisions that prohibit employers from engag-\ning in certain behavior. Under paragraph (a)(1), an employer\nmay not intentionally discriminate against an older individ-\nual by firing or failing to hire or promote her because she is\nolder—i.e., engage in disparate treatment of older individu-\nals. Paragraph (a)(2) prohibits an employer from creating an\ninternal employee classification or limitation that has the ef-\nfect of depriving “any individual of employment opportuni-\nties” or adversely affecting his or her status as an employee\nbecause of age—i.e., creating an internal classification system\nwith a disparate impact against older individuals.\n If an employer classifies a position as one that must be\nfilled by someone with certain minimum or maximum expe-\nrience requirements, it is classifying its employees within the\nmeaning of paragraph (a)(2). If that classification “would de-\nprive or tend to deprive any individual of employment op-\nportunities” because of the person’s age, paragraph (a)(2) can\nreach that classification. The broad phrase “any individual”\nreaches job applicants, so the focus turns to the employer’s\naction and its effects—i.e., whether the employer has classi-\nfied jobs in a way that tends to limit any individual’s employ-\nment opportunities based on age. See Smith, 544 U.S. at 234,\n235–38 (plurality) (explaining that this “text focuses on the ef-\nfects of the action” and not the employer’s motive); id. at 243\n(Scalia, J., concurring).1 The defendant’s maximum-experi-\nence requirement in this case certainly limited plaintiff\nKleber’s employment opportunities.\n\n\n 1Justice Scalia joined Parts I, II, and IV of the Smith opinion by Justice\nStevens and wrote that he also agreed with Justice Stevens’s reasoning in\nPart III. 544 U.S. at 243. I therefore treat all parts of the Smith opinion by\n\nNo. 17-1206 23\n\n B. The Majority’s Cramped Reading\n To avoid this conclusion, the majority emphasizes the\nphrase “or otherwise adversely affect his status as an em-\nployee,” reading it to limit the statute’s disparate-impact pro-\ntection “to an individual with ‘status as an employee.’” Ante\nat 4. Note that the key “with” in that phrase—repeated several\ntimes in the majority opinion—comes only from the majority,\nnot from the statute itself. It’s not correct. The antecedent of\n“his” is “any individual,” and “otherwise adversely affect” is\neven broader than “deprive or tend to deprive any individual\nof employment opportunities.”\n The crux of the majority’s argument is that if “any individ-\nual” is not already employed by the employer in question, the\nindividual does not yet have “status as an employee” and so\nis not protected from policies or practices that have disparate\nimpacts because of age. The majority thus concludes that a\n“person’s status as an employee” cannot be affected unless\nthe person is already an employee. If that’s true, then para-\ngraph (a)(2) subtly limits its protections from disparate im-\npacts to people who already possess “status as an employee”\nwith the defendant-employer.\n The majority’s analysis nullifies the two uses of the broad\nword “individual,” which certainly reaches job applicants.\nWhat Congress meant to say, the majority argues, is that it’s\nunlawful for an employer “to limit, segregate, or classify his\nemployees in any way which would deprive or tend to de-\nprive any current employee [not “any individual”] of employ-\nment opportunities or otherwise adversely affect his status as\n\nJustice Stevens as authoritative without repeatedly citing Justice Scalia’s\nconcurrence as well.\n\n24 No. 17-1206\n\nan employee, because of such employee’s [not “individual’s”]\nage.”\n How does one read a bar against depriving “any individ-\nual” of “employment opportunities” to exclude all cases\nwhere a person is looking for a job? And if Congress meant to\nlimit the provision’s coverage only to current employees, why\ndidn’t it just use the word “employee”? It had used that word\ntwice in this provision already. Courts are generally loath to\nread statutory terms out of a textual provision and to insert\nlimitations that are not evident in the text. See Mount Lemmon\nFire District v. Guido, 139 S. Ct. 22, 26 (2018) (refusing to read\nlimitation into ADEA’s coverage that is not apparent from\ntext, noting that “[t]his Court is not at liberty to insert the ab-\nsent qualifier”).\n C. The Better Reading\n If we look at the language of paragraph (a)(2) in isolation,\nthe majority’s mechanical reading has some superficial plau-\nsibility, but it should be rejected. At the textual level, there are\nthree distinct and fundamental problems.\n First, as Judge Easterbrook points out, the majority’s the-\nory gives the phrase “any individual” very different mean-\nings in adjoining paragraphs (a)(1) and (a)(2) of § 623. Ante at\n17. See also, e.g., Mohasco Corp. v. Silver, 447 U.S. 807, 826\n(1980) (declining to interpret § 706 of Title VII so that the word\n“filed” would have different meanings in different subsec-\ntions).\n Second, the majority merely assumes that “affect his status\nas an employee” necessarily limits the already broad phrase,\n“deprive or tend to deprive any individual of employment\nopportunities.” It is not self-evident—at least as a matter of\n\nNo. 17-1206 25\n\nplain meaning—that the latter “status” phrase must be read as\nlimiting the former. A list culminating in an “or otherwise”\nterm can instead direct the reader to consider the last phrase\nas a catch-all alternative, “in addition to” what came before,\nto capture prohibited actions that might otherwise escape the\nstatute’s reach. For example, an employer can violate the\nADEA by adversely affecting the status of its employees (e.g.,\nby giving bigger raises to junior employees, as alleged in\nSmith, 544 U.S. at 231) without depriving an individual of em-\nployment opportunities such as better jobs and promotions.\nIn this sense, paragraph (a)(2) “enumerates various factual\nmeans of committing a single element”—imposing employ-\nment policies that have disparate impacts on older workers.\nSee Mathis v. United States, 136 S. Ct. 2243, 2249 (2016) (dis-\ncussing various ways to write an “alternatively phrased\nlaw”).\n In Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA, Inc.,\n139 S. Ct. —, — (2019), the Supreme Court rejected a remark-\nably similar argument that attempted to use an “otherwise”\nphrase to limit what came before. Much like the majority here,\nthe patentee argued that “otherwise available to the public”\nin the Patent Act’s “on sale” bar meant that the preceding lan-\nguage also required public availability after a sale. The pa-\ntentee “places too much weight on [the] catchall phrase. Like\nother such phrases, ‘otherwise available to the public’ cap-\ntures material that does not fit neatly into the statute’s enu-\nmerated categories but is nevertheless meant to be covered.”\nSee also Republic of Iraq v. Beaty, 556 U.S. 848, 860 (2009) (ex-\nplaining that “the whole value of a generally phrased residual\nclause, like the one used in the second proviso, is that it serves\nas a catchall for matters not specifically contemplated—\nknown unknowns”). If “otherwise adversely affect his status\n\n26 No. 17-1206\n\nas an employee” does not necessarily limit the entire disparate-\nimpact phrase—if it is instead a catch-all phrase for known\nunknowns, as the Supreme Court explained in Texas Dep’t of\nHousing & Community Affairs v. Inclusive Communities Project,\nInc., 135 S. Ct. 2507, 2519 (2015) (linking “otherwise” phrases\nin ADEA, Title VII, and Fair Housing Act as establishing tex-\ntual foundations for disparate-impact protection)—the major-\nity’s textual analysis collapses.\n Third, even if “status as an employee” must be affected to\nstate a disparate-impact claim under (a)(2), the majority’s con-\nclusion also depends entirely on the unlikely notion that “sta-\ntus as an employee” is not “adversely affected” when an em-\nployer denies an individual the opportunity to become an em-\nployee in the first place. Refusing to hire an individual has the\nmost dramatic possible adverse effect on that individual’s\n“status as an employee.” Reading “status as an employee”\nbroadly, to include whether the individual is an employee or\nnot, is consistent with the actual words Congress used in re-\npeatedly referring to “individuals,” and with ordinary usage.\nCourts often speak of “denying status” of one sort or another.2\n\n\n 2Judge Martin’s dissent in Villarreal v. R.J. Reynolds Tobacco Company\ncollected several examples. 839 F.3d 958, 983 & n.2 (11th Cir. 2016) (en\nbanc), citing Howard Delivery Serv., Inc. v. Zurich Am. Ins. Co., 547 U.S. 651,\n656 (2006) (bankruptcy claimant could be “denied priority status”);\nChandris, Inc. v. Latsis, 515 U.S. 347, 372 (1995) (maritime worker could “be\ndenied seaman status”); McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479,\n496 (1991) (person trying to do seasonal work could be “denied SAW\n[special agricultural worker] status”); Clark v. Gabriel, 393 U.S. 256, 264\n(1968) (draft registrant could be “denied CO [conscientious objector]\nstatus”).\n We have also used this “denial of status” phrasing in a variety of\ncontexts. Bell v. Kay, 847 F.3d 866, 868 (7th Cir. 2017) (plaintiff objected to\n\nNo. 17-1206 27\n\nAnd the word “status” is not necessarily limited to status as\nof any particular moment. 1 U.S.C. § 1 (Dictionary Act provid-\ning that “unless the context indicates otherwise … words used\nin the present tense include the future as well as the present”).\n In short, the effect of the phrase “otherwise adversely af-\nfects his status as an employee” on job applicants is at worst\nambiguous for applicants like Kleber. The majority loads onto\nthat phrase more weight than it can bear. If Congress really\nmeant to exclude job applicants from disparate-impact pro-\ntection, the phrase “status as an employee” was a remarkably\nobscure and even obtuse way to express that meaning.\n D. Comparing § 623(a)(2) to Other ADEA Provisions\n Congress no doubt could have written § 623(a)(2) to make\nclearer its protection of outside job applicants, as it did in\nother ADEA provisions and other statutes. As explained by\nJustice Thomas for a unanimous Supreme Court in Robinson\nv. Shell Oil, however, that observation does not prove that\nCongress chose not to provide that protection. 519 U.S. at 341–\n\n“the order denying him pauper status”); McMahon v. LVNV Funding, LLC,\n807 F.3d 872, 875 (7th Cir. 2015) (observing that “the denial of class status\nis likely to be fatal to this litigation”); Moranski v. General Motors Corp., 433\nF.3d 537, 538 (7th Cir. 2005) (analyzing “denial of Affinity Group status”\naffecting a proposed group of employees); Hileman v. Maze, 367 F.3d 694,\n697 (7th Cir. 2004) (plaintiff alleged injury resulting “from the denial of\nher status” as candidate in local election); Resser v. Comm’r of Internal\nRevenue, 74 F.3d 1528, 1532 (7th Cir. 1996) (appealing Tax Court’s “denial\nof ‘innocent spouse’ status”); Williams v. Katz, 23 F.3d 190, 191 (7th Cir.\n1994) (spurned intervenor permanently “denied the status of a party” in\nlitigation); Lister v. Hoover, 655 F.2d 123, 124–25 (7th Cir. 1981) (plaintiffs\n“who were denied resident status and the accompanying reduced tuition”\nat a state university). In all of these cases, “status” was surely “adversely\naffected,” to use the phrasing of § 623(a)(2).\n\n28 No. 17-1206\n\n42 (language in other statutes “proves only that Congress can\nuse the unqualified term ‘employees’ to refer only to current\nemployees, not that it did so in this particular statute”).\n The first statutory text that provides guidance on how to\nread § 623(a)(2) is the statute’s stated purpose, which the ma-\njority largely disregards. Congress told us it set out to address\n“the incidence of unemployment, especially long-term unem-\nployment” among older workers. 29 U.S.C. § 621(a)(3). In the\nstatute, Congress said it was “especially” concerned about the\ndifficulty older workers faced in trying to “regain employ-\nment when displaced from jobs”—in other words, when older\nworkers were applying for jobs. See § 621(a)(1). Unemployment\nends when a person who is not currently employed applies\nsuccessfully for a job. As the ADEA itself provides, “it is …\nthe purpose of this chapter to promote employment of older\npersons based on their ability rather than age.” § 621(b).\n The majority, however, focuses on comparing § 623(a)(2)\nto several neighboring provisions in the ADEA that distin-\nguish clearly between current employees and job applicants.\nThe majority, to support its improbable result, reads too much\ninto the differences in wording.\n The unlawful employment practices section of the ADEA\nbegins with three subsections prohibiting age discrimination\nin employment by three different kinds of actors—private and\npublic employers, employment agencies, and labor organiza-\ntions. 29 U.S.C. § 623(a)–(c); see also § 630(b) (defining “em-\nployer”). Subsections (a), (b), and (c) are all worded slightly\ndifferently. In the following subsection (d), the ADEA prohib-\nits retaliation by any of these private-sector actors. In another\nsection, the ADEA provides for a different and even broader\n\nNo. 17-1206 29\n\npolicy prohibiting age discrimination in federal hiring and\nemployment. § 633a(a).\n The majority compares three of those ADEA provisions:\nthe labor union provision in § 623(c)(2), the retaliation provi-\nsion in § 623(d), and the federal government provision in\n§ 633a(a). All three of these provisions use the phrase “appli-\ncant for employment.” The majority invokes the common pre-\nsumption that a difference in statutory wording signals a dif-\nference in Congressional intent and meaning. That presump-\ntion, however, is only a tool, not an inflexible rule. We need\nsome basis beyond simple word-matching to believe that\nthese particular differences in language were intended to dis-\ntinguish the ADEA’s disparate-impact provision from these\nother provisions to produce such an improbable result as ex-\ncluding older job applicants from disparate-impact protec-\ntion.\n Instructive here is the Supreme Court’s approach to inter-\npreting the term “employee” in Title VII’s anti-retaliation pro-\nvision. Robinson v. Shell Oil, 519 U.S. at 339–41. Title VII makes\nit unlawful “for an employer to discriminate against any of\nhis employees or applicants for employment” who have ei-\nther availed themselves of Title VII’s protections or assisted\nothers in doing so. 42 U.S.C. § 2000e-3(a). The issue in Robin-\nson was whether this language prohibits retaliation against\nformer employees. As in this case, the Court had to interpret\na provision that was not as clear as other related provisions.\nThe fact that “Congress also could have used the phrase ‘cur-\nrent employees,’” or “expressly included the phrase ‘former\nemployees’ does not aid our inquiry.” 519 U.S. at 341. That\n“the term ‘employees’ may have a plain meaning in the con-\ntext of a particular section,” or that “other statutes have been\n\n30 No. 17-1206\n\nmore specific in their coverage of ‘employees’ and ‘former\nemployees,’ … proves only that Congress can use the unqual-\nified term ‘employees’ to refer only to current employees”—\n“not that the term has the same meaning in all other sections\nand in all other contexts.” Id. at 341–43.\n Adopting an approach that fits here, the Court wrote: “Be-\ncause the term ‘applicants’ in § 704(a) is not synonymous with\nthe phrase ‘future employees,’ there is no basis for engaging\nin the further (and questionable) negative inference that in-\nclusion of the term ‘applicants’ demonstrations intentional ex-\nclusion of former employees.” Id. at 344–45. In fact, the Court\nreasoned, to hold that the term “employee” does not include\nformer employees “would effectively vitiate much of the pro-\ntection afforded by § 704(a),” and “undermine the effective-\nness of Title VII by allowing the threat of postemployment re-\ntaliation to deter victims of discrimination from complaining\nto the EEOC, and would provide a perverse incentive for em-\nployers to fire employees who might bring Title VII claims.”\nId. at 345–46.\n In short, the Court concluded, an “inclusive interpretation\nof ‘employees’ in § 704(a) that is already suggested by the\nbroader context of Title VII”—and that is not “destructive of\n[the] purpose” of the statute by allowing an employer to es-\ncape liability for “an entire class of acts”—“carry persuasive\nforce given their coherence and their consistency with a pri-\nmary purpose” of the statutory provision. Id. at 346. We\nshould use the same approach here.\n Instead, the majority’s reading of § 623(a)(2) creates a\nstrange incongruity. All actors who regularly recruit job ap-\nplicants—employment agencies, labor unions, and federal\n\nNo. 17-1206 31\n\nagencies—are prohibited from engaging in age discrimina-\ntion, including disparate-impact discrimination. See 29 U.S.C.\n§§ 623(b), 623(c)(2), & 633a(a). Yet the majority concludes that\nCongress chose to allow private employers to use practices\nwith disparate impacts on older job applicants. This is a truly\nodd reading, especially in light of the statute’s stated purpose\nand the rest of § 623, where Congress grouped employers,\nemployment agencies, and labor organizations together with\nrespect to retaliation, job advertisements, and the use of bona\nfide occupational qualifications and reasonable factors other\nthan age. See Pub. L. 90-202, § 4(d)–(f), 81 Stat. 603 (1967).\n Half a century after the ADEA was enacted, we can see\nthat Congress could have been more precise in phrasing the\ndisputed provision. The majority errs, though, in concluding\nboldly that the text “leaves room for only one interpretation.”\nAnte at 8. The majority naively puts on blinders, considers\nonly the language of the ADEA in isolation, and, as we’ll see,\nignores precedent, legislative history, and practical conse-\nquences to offer one cramped reading for the scope of\n§ 623(a). The text alone does not provide sufficient grounds\nfor choosing between two readings of one of the statute’s most\nimportant protections, one that protects outside job appli-\ncants, and one that excludes them.\nII. Griggs, Title VII, and the ADEA\n A. Griggs and “Job-Seekers”\n The most reliable basis for choosing between these two\nreadings of the statutory text is to follow the Supreme Court’s\ninterpretation of identical language in Title VII of the Civil\nRights Act of 1964 in Griggs v. Duke Power, 401 U.S. at 430–31.\n\n32 No. 17-1206\n\nIn Griggs, the Court held that the language of Title VII as en-\nacted in 1964 included disparate-impact protection for both\njob-seekers and current employees seeking promotions. That\nauthoritative construction of identical language should con-\ntrol here. See Smith, 544 U.S. at 233–38 (applying Griggs to\n§ 623(a)(2) in ADEA); Texas Dep’t of Housing and Community\nAffairs, 135 S. Ct. at 2518 (applying analysis of identical statu-\ntory language in Griggs (Title VII) and Smith (ADEA) to inter-\npret parallel disparate-impact provision in Fair Housing Act);\nsee also, e.g., Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 65\n(1987) (field preemption applies to ERISA because Congress\ncopied ERISA’s jurisdictional language from Labor Manage-\nment Relations Act, to which field preemption applied).\n 1. Parallel Statutory Texts\n The ADEA’s § 623(a)(2) tracks word-for-word the parallel\nprovision for race, sex, religious, and national origin discrim-\nination in Title VII of the Civil Rights Act of 1964, as it was\nenacted in 1964, as it stood when the ADEA was enacted, and\nas it stood when Griggs was decided. Here’s the original lan-\nguage of Title VII’s parallel disparate-treatment and dispar-\nate-impact provisions:\n (a) It shall be an unlawful employment practice\n for an employer—\n (1) to fail or refuse to hire or to discharge any\n individual, or otherwise to discriminate against\n any individual with respect to his compensa-\n tion, terms, conditions, or privileges of employ-\n ment, because of such individual’s race, color,\n religion, sex, or national origin; or\n\nNo. 17-1206 33\n\n (2) to limit, segregate, or classify his employ-\n ees in any way which would deprive or tend to\n deprive any individual of employment oppor-\n tunities or otherwise adversely affect his status\n as an employee, because of such individual’s\n race, color, religion, sex, or national origin.\n78 Stat. 255, quoted in Griggs, 401 U.S. at 426 n.1. The only dif-\nference between Title VII’s § 703(a)(2) and the ADEA’s\n§ 623(a)(2) is the substitution of “age” for “race, color, reli-\ngion, sex, or national origin.” That’s why Smith v. City of Jack-\nson described Griggs as “a precedent of compelling im-\nportance” in interpreting the ADEA’s disparate-impact lan-\nguage. 544 U.S. at 234.\n In Griggs, the Supreme Court unanimously held that Title\nVII “proscribes not only overt discrimination but also prac-\ntices that are fair in form, but discriminatory in operation”—\ne.g., practices with disparate impacts against protected\ngroups. Griggs, 401 U.S. at 431. “The touchstone is business\nnecessity,” the Court explained, as “the very purpose of title\nVII is to promote hiring on the basis of job qualifications, ra-\nther than on the basis of race or color.” Id. at 431, 434, quoting\n110 Cong. Rec. 7247 (1964).\n The majority contends Griggs offers no guidance here be-\ncause “nothing about the case, brought as it was by employees\nof Duke Power and not outside applicants, required the Court\nto answer th[e] question” whether Title VII’s disparate impact\nprovision extended to job applicants. Ante at 10. The majority\ntreats the Supreme Court’s references in Griggs to hiring as\ncareless slips of the pen. As a general rule, that is not how\nlower federal courts should read Supreme Court opinions.\n\n34 No. 17-1206\n\nMore specifically, a closer look at Griggs shows that the ma-\njority’s approach is 180 degrees off course.\n 2. The Facts of Griggs\n Beyond reasonable dispute, the Griggs holding included\njob applicants. The majority ignores the fact that Griggs was a\nclass action. The district court had certified a class “defined as\nthose Negroes presently employed, and who subsequently\nmay be employed, at [Duke Power’s plant] and all Negroes\nwho may hereafter seek employment”—i.e., job applicants. Griggs\nv. Duke Power Co., 292 F. Supp. 243, 244 (M.D.N.C. 1968) (em-\nphasis added). After remand from the Supreme Court, the\ndistrict court enjoined Duke Power from, among other prac-\ntices, “administering any personnel or aptitude tests or re-\nquiring any formal educational background … as a condition\nof consideration for employment or promotion or transfer.”\nGriggs v. Duke Power Co., 1972 WL 215 at 1 (Sept. 25, 1972)\n(emphasis added). Of course the Supreme Court’s holding ap-\nplied to job applicants.\n And that was for good reason. The Griggs class challenged\nemployment practices that had the effect of segregating the\nworkforce. Duke Power classified its employees into two\nmain groups: (1) the “inside departments,” historically staffed\nby white employees, with higher pay and responsible for\ntasks such as operating the boilers and maintaining the plant\nequipment; and (2) the Labor Department, the lowest-wage\nunit, “responsible generally for the janitorial services” and\nhistorically staffed by black employees. Griggs v. Duke Power\nCo., 420 F.2d 1225, 1245–46 (4th Cir. 1970) (Sobeloff, J., dissent-\ning); id. at 1228–29 (majority). Before the civil rights move-\nment, white and black employees (within their respective seg-\nregated departments) had been hired and promoted with\n\nNo. 17-1206 35\n\nmiddle school levels of education or less, and certainly with-\nout high school diplomas; there was no indication that any\nparticular level of formal education was needed to work at the\npower plant. Id. at 1245–46 (dissent).\n As the civil rights movement picked up steam, Duke\nPower “initiated a new policy as to hiring and advancement,”\nrequiring “a high school education or its equivalent … for all\nnew employees, except as to those in the Labor Department.”\nId. at 1228–29 (majority) (emphasis added). On the day Title\nVII took effect, Duke Power “added a further requirement for\nnew employees”—the passage of “two professionally prepared\naptitude tests, as well as to have a high school diploma.”\nGriggs, 401 U.S. at 428 (emphasis added). All existing employ-\nees (white and black) were grandfathered in. Only new Labor\nDepartment employees could still be hired without having to\nmeet the requirements. Griggs, 420 F.2d at 1245–46 (dissent).3\n Notwithstanding the new rule, if an “inside” position\nopened, the grandfathered white employees from “inside de-\npartments” without high school diplomas faced “no re-\nstriction on transfer from any of the inside departments to the\nother two inside departments.” Id. at 1246 (Sobeloff, J., dis-\nsenting). It was “only the outsiders” (e.g., entirely new appli-\ncants or black Labor Department employees) who “must meet\nthe questioned criteria.” Id. This internal employee classifica-\n\n\n\n 3 To be precise, the coal handling department was the one unit staffed\n\nby white employees that had been subject to the high school diploma re-\nquirement for transfer. The aptitude tests were offered at the coal employ-\nees’ request as “a means of escaping from that department” and were then\nmade available to employees in the Labor Department. Griggs, 420 F.2d at\n1229; Griggs, 401 U.S. at 427–28.\n\n36 No. 17-1206\n\ntion policy therefore put the black Labor Department employ-\nees in the same position as outside applicants. Consequently,\n“four years after the passage of Title VII, [the Duke power\nplant] look[ed] substantially like it did before 1965. The Labor\nDepartment [wa]s all black; the rest [wa]s virtually lily-\nwhite.” Id. at 1247.\n Thus, it made no legal difference that the named class rep-\nresentatives were existing Labor Department employees chal-\nlenging their restricted ability to transfer (read: apply) to the\nhigher-paying units staffed with white employees. The\nCourt’s legal analysis was not limited to intra-company trans-\nfers: all new applicants and the Labor Department plaintiffs\nhad to meet Duke’s educational and testing standards to ap-\nply for non-janitorial open positions. Griggs, 401 U.S. at 425–\n28.\n 3. The Supreme Court’s Analysis\n Thus it was neither accidental nor surprising that the Su-\npreme Court framed the issue as whether an employer could\nrequire a high school education or passing a general intelli-\ngence test as “a condition of employment in or transfer to\njobs,” id. at 426, signaling that the disparate-impact provision\napplied to both current employees and outside job applicants.\nThe opinion also referred to the “hiring and assigning of em-\nployees” and to “tests or criteria for employment or promo-\ntion.” Id. at 427, 431 (emphasis added). Even more clearly,\nwriting for the unanimous Court, Chief Justice Burger ex-\nplained:\n Congress has now provided that tests or cri-\n teria for employment or promotion may not\n provide equality of opportunity merely in the\n\nNo. 17-1206 37\n\n sense of the fabled offer of milk to the stork and\n the fox. On the contrary, Congress has now re-\n quired that the posture and condition of the job-\n seeker be taken into account. It has—to resort\n again to the fable—provided that the vessel in\n which the milk is proffered be one all seekers can\n use. The Act proscribes not only overt discrimi-\n nation but also practices that are fair in form,\n but discriminatory in operation.\nId. at 431 (emphasis added). The Court framed the issue and\nits holding as applying to the use of aptitude and personality\ntests for both hiring and promotion decisions because those\nwere the facts at issue. A decision that applied only to intra-\nDuke transfers, as the majority reads it now, would have\nmissed the whole point of plaintiffs’ case.\n Everyone understood that Griggs was the case testing dis-\nparate-impact coverage nationally. Given the class definition\nthat included future job applicants, all judicial officers, par-\nties, and amici understood that the stakes included protection\nfor job applicants.4 The amicus brief for the United States ar-\ngued that the Court should hold that Title VII did not permit\n\n\n 4 Judge Sobeloff’s dissent in the Fourth Circuit was prescient: “The\ndecision we make today is likely to be as pervasive in its effect as any we\nhave been called upon to make in recent years.” Griggs, 420 F.2d at 1237.\nHe continued: “The statute is unambiguous” in prohibiting “‘objective’ or\n‘neutral’ standards that favor whites but do not serve business needs.” Id.\nat 1238. After all, “[n]o one can doubt that [a] requirement would be inva-\nlid” if an employer issued the “neutral” criteria that “all applicants for em-\nployment shall have attended a particular type of school,” but “the speci-\nfied schools were only open to whites” and “taught nothing of particular\nsignificance to the employer’s needs.” Id. (emphasis added).\n\n38 No. 17-1206\n\n“an employer to require completion of high school or passage\nof certain general intelligence tests as a condition of eligibility\nfor employment in, or transfer to, jobs formerly reserved only\nfor whites” when these new requirements “disqualif[ied] Ne-\ngroes at a substantially higher rate than whites” and were not\n“shown to be necessary for successful performance of the\njobs.” Griggs v. Duke Power Co., Brief for the United States as\nAmicus Curiae at 2, 1970 WL 122637 (Sept. 4, 1970) (emphasis\nadded). On the other side, the Chamber of Commerce cau-\ntioned that the “subject matter of the instant case—the utili-\nzation of educational or test requirements to select employees\nfor hiring or promotion—is a matter of significant national\nconcern.” Brief Amicus Curiae on Behalf of the Chamber of\nCommerce of the United States of America at 1–2, 1970 WL\n122547 (Oct. 14, 1970) (emphasis added).5\n Against this background, there can be no serious doubt\nthat Griggs recognized disparate-impact protection for both\ncurrent employees and job applicants. Even the Court’s take-\naway instructions for employers also addressed hiring: “Con-\ngress has now required that the posture and condition of the\njob-seeker be taken into account. … If an employment practice\nwhich operates to exclude Negroes cannot be shown to be re-\nlated to job performance, the practice is prohibited.” 401 U.S.\nat 431. And this was so despite the fact that the Court was\nconfronted with the same textual differences in Title VII that\n\n\n 5The Chamber of Commerce attorney also talked about hiring in oral\nargument: “We’re talking about objective means of choosing which em-\nployee should fit in to a particular job or which employee should be hired in\nthe first place….” Transcript of Oral Argument, Griggs, 401 U.S. 424 (No.\n70-124), available at http://www.oyez.org/cases/1970-1979/1970/1970_124\n(emphasis added).\n\nNo. 17-1206 39\n\nwe face in the ADEA today: the explicit reference to “hiring”\nin paragraph (a)(1), its omission in (a)(2), and the phrase “or\notherwise adversely affect his status as an employee” in (a)(2).\n The majority in this case therefore has its facts exactly\nbackwards in asserting that “[n]owhere in Griggs did the\nCourt state that its holding extended to job applicants.” Ante\nat 9. One cannot reasonably read hiring and job applicants out\nof the opinion. After Griggs, no competent lawyer would have\ncounseled employers that they were prohibited from basing\nonly intra-company transfers and promotions on “neutral”\nbut non-job-related tests, but remained free to use the same\ntests when hiring new employees.\n B. Griggs’ Aftermath and Title VII’s 1972 Amendment\n 1. Later Judicial Treatment of Griggs\n Unlike the majority here, courts, employers, and scholars\ntook Griggs at its word that its holding was broad and not lim-\nited to intra-company transfers and promotions. Within two\nyears, a “plethora of prominent and forceful federal court rul-\nings—from district court judges to the Supreme Court but\nperhaps most pointedly from the courts of appeal—\nhad already won … sweepingly wide proactive employer\ncompliance with Title VII’s strictures.” David J. Garrow, To-\nward a Definitive History of Griggs v. Duke Power Co., 67 Vand.\nL. Rev. 197, 230 (2014).\n Later Supreme Court decisions continued to read Griggs\nas governing hiring practices. E.g., Albemarle Paper Co. v.\nMoody, 422 U.S. 405, 427 (1975) (“Like the employer in Griggs,”\nthe paper company defendant required “[a]pplicants for hire”\nto achieve certain test scores); id. at 425 (after Griggs, the “com-\nplaining party or class” must show “that the tests in question\n\n40 No. 17-1206\n\nselect applicants for hire or promotion in a racial pattern”) (em-\nphasis added); Dothard v. Rawlinson, 433 U.S. 321, 329 (1977)\n(explaining that Griggs and Albemarle Paper “make clear that\nto establish a prima facie case of discrimination, a plaintiff\nneed only show that the facially neutral standards in question\nselect applicants for hire in a significantly discriminatory pat-\ntern”); Connecticut v. Teal, 457 U.S. 440, 446 (1982) (although\nrequirements in Griggs “applied equally to white and black\nemployees and applicants, they barred employment opportu-\nnities to a disproportionate number of blacks” and were\ntherefore invalid); Texas Dep’t of Housing, 135 S. Ct. at 2517 (ex-\nplaining that Griggs “held that ‘business necessity’ constitutes\na defense to disparate-impact claims” and did “not prohibit\nhiring criteria with a ‘manifest relationship’ to job perfor-\nmance”) (emphasis added), quoting Griggs, 401 U.S. at 432. In\nshort, lower federal courts have no business dismissing as\ncareless dicta the Griggs references to job applicants.\n 2. Title VII’s 1972 Revision\n None of the Court’s later references to Griggs’ application\nto hiring even mention, let alone rely on, the fact that, as part\nof a major 1972 revision to Title VII, Congress also engaged in\nsome statutory housekeeping and added an express reference\nto “applicants for employment” to the disparate-impact pro-\nvision, § 2000e-2(a)(2). Pub. L. No. 92-261, § 8(a), 86 Stat. 109\n(1972). But the majority, apparently without engaging with\nthe facts of the Griggs litigation or the legislation, opines that\nthe 1972 Amendment actually “reflected Congress’s swift and\nclear desire to extend Title VII’s disparate impact protection to\njob applicants.” Ante at 10 (emphasis added). The facts show\nagain that the majority has it exactly wrong.\n\nNo. 17-1206 41\n\n The year after Griggs, Congress enacted the Equal Employ-\nment Opportunity Act of 1972. It was a major bill designed to\nexpand the powers of the EEOC and the scope of Title VII. But\nnot every provision was important or controversial. The Act\nincluded this minor amendment not to change the law but to\ncodify existing law as decided in Griggs.\n The 1964 Act had confined the EEOC’s role to “investiga-\ntion, persuasion, and conciliation,” and unlike other major\nagencies, it “lacked the authority to issue cease-and-desist or-\nders or to initiate legal action in the federal courts.” Herbert\nHill, The Equal Employment Opportunity Acts of 1964 and 1972,\n2 Berkeley J. Emp. & Labor L. 1, 7–8 (1977). The Department\nof Justice, which did have authority to sue to enjoin employ-\nment discrimination, filed “few suits” and “obtain[ed] only\nminimal benefits for the complainants.” Id. at 29. By the end\nof 1971, the year Griggs was decided, the EEOC was already\n“handicapped by a backlog of more than 23,000 unresolved\ncomplaints of discrimination” and was subject to withering\ncriticism. Id. at 31–33. There was concern that Title VII’s re-\nsults had been “disappointing” and “in most respects, proved\nto be a cruel joke to those complainants who have in good\nfaith turned toward the Federal Government [which] cannot\ncompel compliance”; thus there was general resolve that\n“promises of equal job opportunity made in 1964 must be\nmade realities in 1971.” Id. at 47–48, quoting S. Rep. No. 415,\n92nd Cong., 1st Sess. 8 (1971).\n The EEOC’s limited powers were noted early. Efforts to\nstrengthen it began almost immediately after the 1964 enact-\nment. Id. at 32–33. It was clear, however, “that employers were\nvigorously opposed to any measure designed to increase the\neffectiveness of the law,” and “[b]usiness interests conducted\n\n42 No. 17-1206\n\nan intensive lobbying campaign against the various proposals\nto extend Title VII coverage, provide enforcement power to\nthe EEOC, or strengthen the antidiscrimination statute in any\nway.” Id. at 33.\n This years-long battle culminated in the 1972 Act. The\nAct’s major provisions: authorized the EEOC “to initiate civil\nsuits in federal district courts”; retained the then-controver-\nsial private right of action; created a new Office of General\nCounsel; expanded coverage to a larger number of private\nemployers, most state and local government employees, and\nfederal employees; and deleted the exemption for educational\ninstitutions. Id. at 50–58; Conf. Rep. on H.R. 1746, reprinted in\n118 Cong. Rec. 7166, 7166–69 (March 6, 1972).\n 3. Clarifying the Title VII Disparate-Impact Provision\n Along with these major changes, § 8(a) of the 1972 Act\namended Title VII’s disparate-impact language in § 2000e-\n2(a)(2) to add the reference to “applicants for employment.”\nPub. L. No. 92-261, § 8(a), 86 Stat. 109 (1972). The majority ar-\ngues that, in light of this addition, concluding that Griggs had\nalready covered job applicants “renders the 1972 amendment\na meaningless act of the 92nd Congress.” Ante at 10. Without\nconsidering the facts of the 1972 legislation as a whole, the\nmajority has leaped to the wrong conclusion. It has over-\nlooked the long-recognized difference between substantive\nand clarifying statutory amendments.\n First, Congress was well aware of Griggs. The Court’s\nopinion was mentioned several times in the lengthy legisla-\ntive history—always favorably and typically described in\nterms tracking the discussion of Griggs above. One House re-\nport quoted Griggs to emphasize the importance of disparate\n\nNo. 17-1206 43\n\nimpact protections for “the job seeker” before noting that the\n“provisions of the bill are fully in accord with the decision of\nthe Court.” H.R. Rep. 92-899 at 21–22, reprinted in 118 Cong.\nRec. 2156–57 (March 2, 1972), quoting Griggs, 401 U.S. at 431.\nAnother House report described Griggs as a case “where the\nCourt held that the use of employment tests as determinants\nof an applicant’s job qualification … was in violation of Title\nVII if such tests work a discriminatory effect in hiring pat-\nterns” without a “showing of an overriding business neces-\nsity.” H.R. Rep. 92-238 at 8, reprinted at 1972 U.S.C.C.A.N. at\n2144 (emphasis added).\n Amid the major policy changes in the 1972 Act, the addi-\ntion of “applicants for employment” to the disparate-impact\nprovision was a minor change, mentioned only briefly as in-\ncorporating existing law. The conference committee report to\nthe Senate said that this addition was “merely declaratory of\npresent laws.” 118 Cong. Rec. at 7169. Congress noted its in-\ntention to “make it clear that discrimination against appli-\ncants for employment … is an unlawful employment prac-\ntice” under both clauses of Title VII’s § 2000e-2(a). 118 Cong.\nRec. at 7169. This conference committee report to the Senate\nwas the final report on § 8(a) of H.R. 1746, which added “or\napplicants for employment” to the provision, see 86 Stat. 103,\n109 (approved March 24, 1972), essentially repeating an ear-\nlier Senate report that said this clarifying amendment “would\nmerely be declaratory of present law.” S. Rep. 92-415 at 43\n(Oct. 28, 1971). Beyond these brief mentions, the addition of\n“applicants for employment” appeared not worthy of expla-\nnation at all.6\n\n 6 The House version of the conference committee report contained the\n\ntext of § 8(a) but provided no explanation. See H.R. Rep. 92-899 at 8, 19–\n\n44 No. 17-1206\n\n Consider these sparse comments in context. The recogni-\ntion of disparate-impact liability in Griggs had been contro-\nversial and hard-fought between civil rights advocates and\nemployers. If Congress thought in 1972 that it was changing\nthe law to extend disparate-impact protection to reach job ap-\nplicants, that change surely would have been significant\nenough to mention in the detailed committee reports.\n And beyond Congress’s silence about such a supposedly\nmajor change in the legislation, it beggars belief to think that\nemployer groups would have let such an amendment pass\nwithout mention.7 If, as the majority claims here, Griggs had\nactually left open whether job applicants were covered by Ti-\ntle VII’s disparate impact provision, the Chamber and other\nemployer groups would not have been silent. But they had\nalready fought that battle, and they knew they had lost.\n The majority is right that courts often assume that statu-\ntory amendments are intended to change the law. Ante at 11,\nciting, e.g., United States v. Quality Stores, Inc., 572 U.S. 141, 148\n\n20, reprinted in 92nd Cong., 118 Cong. Rec. 6643, 6645, 6648 (March 2,\n1972). An earlier House report mentioned § 8(a) only in passing in the sec-\ntion-by-section analysis. See id. at 20–22, 30, reprinted in 1972\nU.S.C.C.A.N. at 2155–57, 2165.\n 7\n Just months earlier, the Chamber of Commerce’s attorney had\nargued to the Griggs Court:\n This case is one which is a vital concern to employers, both small and\n large throughout the United States. In today’s labor market, there are\n often many applicants for the job, just as there are many employees\n who desire to be promoted [and] the employer must make a choice …\n often a difficult one.\nTranscript of Oral Argument, Griggs, 401 U.S. 424 (No. 70-124), available\nat http://www.oyez.org/cases/1970-1979/1970/1970_124.\n\nNo. 17-1206 45\n\n(2014). But the majority overlooks the long-recognized reality\nthat many statutory amendments are intended only to clarify\nexisting law, not to change it. E.g., Singer, 1A Sutherland Stat-\nutes and Statutory Construction § 22:34 (7th ed. 2010).\n The distinction is relevant most often in disputes over\nwhether to give an amendment retroactive effect. Substantive\namendments that change the law are rarely given retroactive\neffect, while “clarifying” amendments are routinely given\nsuch effect. See, e.g., United States ex rel. Garbe v. Kmart Corp.,\n824 F.3d 632, 642 (7th Cir. 2016) (collecting cases). In this case,\nthe distinction has a dramatic effect on what the 1972 amend-\nment tells us about the scope of Griggs and the proper inter-\npretation of the original Title VII language, which is identical\nto the ADEA language we interpret here.\n How to tell when an amendment is substantive and when\nonly clarifying? We explained in Garbe:\n In deciding whether an amendment is clarifying\n rather than substantive, we consider\n “[1] whether the enacting body declared that it\n was clarifying a prior enactment; [2] whether a\n conflict or ambiguity existed prior to the\n amendment; and [3] whether the amendment is\n consistent with a reasonable interpretation of\n the prior enactment and its legislative history.”\n824 F.3d at 642, quoting Middleton v. City of Chicago, 578 F.3d\n655, 663–64 (7th Cir. 2009).\n The evidence on all three of these factors shows that the\n1972 amendment to the Title VII disparate-impact language\nwas clarifying, not substantive. As shown above: (1) The en-\nacting body announced that the new language only declared\n\n46 No. 17-1206\n\ncurrent law and was consistent with Griggs. (2) Before the\n1972 amendment, disparate-impact coverage for outside job\napplicants had been established in Griggs; that coverage was\ncertainly no worse than ambiguous. (3) The 1972 amendment\nwas “consistent with a reasonable interpretation of the prior\nenactment and its legislative history.” That’s exactly how the\nSupreme Court had read the language a year earlier in Griggs\nand how the decision was described in the 1972 amendment’s\nlegislative history.\n In short, the facts refute the majority’s unsupported claim\nthat the 1972 amendment showed Congress’s “swift and clear\ndesire to extend Title VII’s disparate impact protection to job\napplicants.” Ante at 10. Without evidence that Congress was\n“extending” Title VII, there is no foundation here for the ma-\njority’s further inference that Congress in 1972 was silently\nendorsing a narrower interpretation of identical language in\nthe ADEA. The ADEA was never mentioned in the larger 1972\nAct itself or in the conference report describing it. The 1972\nAct amended only provisions of the 1964 Act and provides no\nsupport for the majority’s narrower interpretation of the\nADEA.\n C. Griggs and Smith v. City of Jackson\n In a further effort to diminish Griggs, the majority offers\nwhat it calls a “commonsense observation.” If it was so clear\nthat Griggs’ Title VII analysis should apply to the ADEA’s\nidentical disparate-impact language, then it is “very difficult\nto explain why it took the Supreme Court 34 years to resolve\nwhether anyone—employee or applicant—could sue on a dis-\nparate impact theory under the ADEA, as it did in Smith v.\nCity of Jackson, 544 U.S. 228 (2005).” Ante at 8–9. Yet again, the\n\nNo. 17-1206 47\n\nmajority ignores the facts. It’s easy to explain. The Court’s\nopinion in Smith did so.\n After emphasizing Title VII and the ADEA’s “identical\ntext” and “striking” contextual parallels, Smith noted some-\nwhat bemusedly: “Indeed, for over two decades after our de-\ncision in Griggs, the Courts of Appeals uniformly interpreted\nthe ADEA as authorizing recovery on a ‘disparate-impact’\ntheory in appropriate cases.” 544 U.S. at 233–37 & n.5. With-\nout a circuit split over identical statutory language, there had\nbeen no need for the Supreme Court to step in.\n In Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993), how-\never, the Court observed that “we have never decided\nwhether a disparate impact theory of liability is available un-\nder the ADEA” and “we need not do so here.” Id. at 610. A\nconcurring opinion in Hazen Paper emphasized that “nothing\nin the Court’s opinion should be read as incorporating in the\nADEA context the so-called ‘disparate impact’ theory of Title\nVII of the Civil Rights Act of 1964” as “there are substantial\narguments that it is improper to carry over disparate impact\nanalysis from Title VII to the ADEA.” Id. at 618. Those com-\nments finally led to a circuit split on the question.8\n\n\n\n\n 8 A year after Hazen Paper, we held that the ADEA did not permit any\ndisparate-impact liability. EEOC v. Francis W. Parker School, 41 F.3d 1073,\n1075 (7th Cir. 1994). In rejecting the reasoning in Griggs, we mistakenly\nemphasized the textual difference between Title VII and the ADEA, see 41\nF.3d at 1077–78, overlooking the fact that Griggs, decided in 1971, consid-\nered exactly the same disparate-impact language that is in the ADEA. In-\nexplicably, the majority now repeats the same error: “We underscored this\nexact difference 14 years ago in our opinion in Francis W. Parker, and we\ndo so again today”—“The ‘mirror’ provision in the ADEA omits from its\n\n48 No. 17-1206\n\n The Supreme Court then granted review in Smith to re-\nsolve the circuit split.9 Smith endorsed the view that had been\nuniform before Hazen Paper: the ADEA recognizes disparate-\nimpact claims. See 544 U.S. at 237 n.8, 240.\n In fact, Smith cited with approval cases allowing disparate-\nimpact ADEA claims by job applicants and others who did\nnot have, according to the majority here, “status as an em-\nployee.” Id. at 237 n.8, citing Faulkner v. Super Valu Stores, Inc.,\n3 F.3d 1419, 1423–24 (10th Cir. 1993) (laid-off warehouse\nworkers applying for jobs with new buyer of warehouse);\nWooden v. Board of Educ. of Jefferson Cty., 931 F.2d 376, 377 (6th\nCir. 1991) (applicant for full-time teaching positions).10 Smith\n\n\ncoverage, ‘applicants for employment.’” Ante at 13. This was simply not\nso in Griggs.\n 9 The Chamber of Commerce again weighed in, arguing against ex-\ntending Griggs’ disparate-impact analysis to the ADEA. The Chamber had\nstill not, however, hit upon the textual reading argued here, that job ap-\nplicants should be excluded from the ADEA’s disparate-impact provision.\nBrief of Amicus Curiae Chamber of Commerce of the United States of\nAmerica in Support of Respondents, 2004 WL 1905736 at 15 (Aug. 23,\n2004) (conceding that the reasoning of Griggs, which prohibited “segrega-\ntion of departments by race,” “applies equally to the ADEA, which sought\nto eliminate these kinds of express age ‘limits’ and ‘classifications,’ which\nfrequently were used against older workers. E.g. Labor Report at 21 (dis-\ncussing ‘persistent and widespread use of age limits in hiring’).”).\n 10Other earlier cases not cited in Smith had also allowed disparate-\nimpact age claims by job applicants. E.g., Lowe v. Commack Union Free\nSchool Dist., 886 F.2d 1364, 1365–70 (2d Cir. 1989) (laid-off teachers later re-\napplied but were not hired); Geller v. Markham, 635 F.2d 1027, 1030 (2d Cir.\n1980) (upholding jury award for teacher applicant temporarily hired, then\npassed over in favor of younger applicant due to “cost-cutting policy”);\nLeftwich v. Harris-Stowe State College, 702 F.2d 686, 689–90 (8th Cir. 1983)\n(faculty member forced to re-apply for job and not hired).\n\nNo. 17-1206 49\n\nthus seemed to end the questioning of Griggs’ relevance to the\nADEA’s disparate-impact provision. See, e.g., Meacham v.\nKnolls Atomic Power Lab., 554 U.S. 84, 95 (2008) (confirming\nthat § 623(a)(2) covers employment practices with disparate\nimpacts on older workers); Texas Dep’t of Housing, 135 S. Ct. at\n2518.\n Smith did not end the long tug-of-war between employers\nand workers over competing interpretations of civil rights\nlegislation. The authors of Hazen Paper concurred in Smith but\nplanted the seed of today’s dispute. Justice O’Connor, joined\nby Justices Kennedy and Thomas, concurred in the judgment\n“on the ground that disparate impact claims are not cogniza-\nble.” Smith, 544 U.S. at 248. A primary reason, they argued,\nnot to defer to the EEOC’s regulation that treated § 623(a)(2)\nas covering disparate-impact claims, was because the regula-\ntion also read the provision to cover employers’ hiring prac-\ntices—and thus protected applicants for employment. Id. at\n266. The concurrence pointed to the difference in language be-\ntween § 623(a)(1) and (a)(2) and asserted that “only”\n§ 623(a)(1) protects applicants and therefore the EEOC regu-\nlation “must” have read a disputed ADEA provision to “pro-\nvide a defense against claims under [§ 623(a)(1)]—which un-\nquestionably permits only disparate treatment claims.” Id.\nObviously that view did not carry the day in Smith.11\n Still, here we are. The resources that employers deployed\nin Smith to try to avoid all ADEA disparate-impact claims\n\n\n 11 Justice Scalia’s concurrence specifically rejected that reasoning as to\n\nthe EEOC regulation and, since the line drawing between applicants and\ncurrent employees was beyond the scope of Smith itself, expressed his ag-\nnosticism on that issue. Smith, 544 U.S. at 246 n.3.\n\n50 No. 17-1206\n\nhave been repurposed. Now they are deployed in a new cam-\npaign to show that the “plain text” of § 623(a)(2) permits em-\nployers to maintain irrational policies that disadvantage older\nindividuals so long as those individuals have not yet been\nhired by the employer. Today’s majority is not the first circuit\nto bite on this argument. The Eleventh Circuit has beaten us\nto it, ironically producing four opinions on the “plain” mean-\ning of the text. Villareal v. R.J. Reynolds Tobacco Co., 839 F.3d\n958 (11th Cir. 2016) (en banc). We should not adopt this delib-\nerately naïve and ahistorical approach.\nIII. Practical Consequences and Statutory Purpose\n The text and precedent favor the view that job applicants\nmay bring disparate-impact claims under the AEDA. In con-\nstruing ambiguous statutory language, it also makes sense to\nconsider the practical consequences of the different readings\nof § 623(a)(2) and how they fit with the overall statute’s design\nand purpose. E.g., Graham County, 559 U.S. at 299–301 (con-\nsidering practical consequences when determining better\nreading of statute); Dewsnup v. Timm, 502 U.S. 410, 416–20\n(1992) (same); Burwell, 135 S. Ct. at 2489 (same). Those consid-\nerations weigh heavily against the majority here.\n A simple hypothetical shows how improbable and arbi-\ntrary the majority’s reading is. Suppose the majority is correct\nthat § 623(a)(2) applies only to current employees. Imagine\ntwo applicants for the defendant’s senior counsel position\nhere. Both are in their fifties, and both have significantly more\nthan seven years of relevant legal experience. One is Kleber,\nwho does not currently have a job with the defendant. The\nother already works for the defendant but wants a transfer or\npromotion to the senior counsel position. Both are turned\ndown because they have more than the maximum seven years\n\nNo. 17-1206 51\n\nof experience. According to the majority, the inside applicant\ncan sue for a disparate-impact violation, but the outside one\ncannot.\n That result is baffling, especially under a statute with the\nstated purpose “to prohibit arbitrary age discrimination in\nemployment.” 29 U.S.C. § 621(b). And the majority’s view de-\npends entirely on the assumption that the statutory phrase\n“otherwise adversely affect his status as an employee” cannot\npossibly be applied to an individual who is, because of the\nchallenged employment practice, completely denied any status\nas an employee. I cannot imagine that when the ADEA was\nenacted, “a reasonable person conversant with applicable so-\ncial conventions would have understood” the ADEA as draw-\ning the line the majority adopts here. See John F. Manning,\nWhat Divides Textualists from Purposivists?, 106 Colum. L. Rev.\n70, 77 (2006); accord, In re Sinclair, 870 F.2d 1340, 1342 (7th Cir.\n1989) (legislative history may provide context for statutory\nlanguage and “may be invaluable in revealing the setting of\nthe enactment and the assumptions its authors entertained\nabout how their words would be understood”).\n Under the majority’s interpretation, still further arbitrary\nline-drawing will now be needed. Suppose the applicant is\ncurrently employed by a sister subsidiary of the employer.\nDoes she have the right “status as an employee” so that she\ncan assert a disparate impact claim? Should the answer de-\npend on some sort of corporate veil-piercing theory? Or sup-\npose the applicant was recently laid off by the employer and\nchallenges its failure to recall her. Or suppose the applicant\ncurrently has a position through a temporary employment\n\n52 No. 17-1206\n\nagency, working side-by-side with employees. I see no argu-\nable reason to exclude any of these applicants from the dis-\nparate-impact protection of paragraph (a)(2).\n Neither the majority nor the defendant or its amici have\noffered a reason why Congress might have chosen to allow\nthe inside applicant but not the outside applicant to assert a\ndisparate-impact claim. I can’t either. Faced with the arbitrary\nconsequences of drawing this line half a century after Con-\ngress drafted the legislation, the majority shrugs and says tau-\ntologically that it’s “the province of Congress to choose where\nto draw legislative lines and to mark those lines with lan-\nguage.” Ante at 14.12\n Of course, Congress can and often does draw arbitrary\nlines when it wants to do so. When it does, courts enforce\n\n 12Far from offering a reason, defendant defiantly claims that just be-\ncause Congress has drawn the line between “employees” and “appli-\ncants” “for no good reason, and that the line might create hypothesized\nanomalies, [that] is no reason to disregard Congress’ words.” Petition for\nRehearing En Banc, Dkt. 43 at 10 (May 10, 2018). The Chamber of Com-\nmerce amicus brief feints toward ascribing intent to Congress, arguing\nthat foreclosing applicants from recourse was “[o]ne of the careful lines\ndrawn by Congress” because the ADEA “strikes a careful balance between\nprohibiting irrational barriers to employment of older workers and pre-\nserving employers’ ability to adopt sound hiring policies.” Dkt. 19 at 3, 1\n(Sept. 6, 2018). There is no evidence of such a deliberate choice in\n§ 623(a)(2). Under the Chamber’s theory, that “balance” is shifted entirely\nin employers’ favor. An employer can set wildly irrational hiring crite-\nria—such as requiring Twitter, Instagram, and Snapchat proficiency for\nan entry-level position at a fast-food joint, which would likely have a large\ndisparate impact on older workers. As long as that position is not open to\ninternal applicants, that would be a highly effective yet immune “barrier\nto employment of older workers.” That’s not a “careful line.” It’s non-\nsense.\n\nNo. 17-1206 53\n\nthose lines, absent constitutional problems. See, e.g., Stephens\nv. Heckler, 766 F.2d 284, 286 (7th Cir. 1985) (Congress can dic-\ntate outcomes even though “there is no shortage of arbitrari-\nness in disability cases”); First Chicago NBD Corp. v. Comm’r of\nInternal Revenue, 135 F.3d 457, 460 (7th Cir. 1998) (“arbitrari-\nness is everywhere in the tax code, so that an approach to in-\nterpretation that sought to purge the arbitrary from the code\nwould be quixotic”). But when the statutory language is at\nworst ambiguous, see above at 21–27, courts should not em-\nbrace such arbitrary results so at odds with the stated statu-\ntory purpose. See, e.g., Graham County, 559 U.S. at 283, 299–\n301 (False Claims Act); Gustafson v. Alloyd Co., Inc., 513 U.S.\n561, 564, 578 (1995) (Securities Act of 1933); see also, e.g., Ken-\nnedy v. Chemical Waste Mgmt., Inc., 79 F.3d 49, 51 (7th Cir. 1996)\n(Americans with Disabilities Act); Martin v. Luther, 689 F.2d\n109, 114 (7th Cir. 1982) (reaching conclusion about parole rev-\nocation “supported by common sense and an assessment of\nthe practical consequences, which naturally guide our inter-\npretation of legislative enactments”).\n The majority’s arbitrary line undermines the stated pur-\npose of the statute. Statutory purpose here is not a matter of\njudicial inference but of statutory declaration in the text en-\nacted by both Houses of Congress and signed by the Presi-\ndent. Congress enacted the ADEA to address unfair employ-\nment practices that make it harder for older people to find\njobs. 29 U.S.C. § 621(a). That purpose was reflected in a variety\nof statutory provisions, as noted above. In addition to the stat-\nute’s specific reliance on its stated purpose, we know from the\n1965 Department of Labor report that was the catalyst for the\nADEA—known as the Wirtz Report—that Congress had job\napplicants very much in mind. Report of the Secretary of La-\n\n54 No. 17-1206\n\nbor, The Older American Worker: Age Discrimination in Employ-\nment (June 1965), reprinted in U.S. Equal Employment Dis-\ncrimination in Employment Act (1981), Doc. No. 5 (the Wirtz\nReport).\n Under the majority’s reading of § 623(a)(2), the ADEA’s\nprotection of the “employment opportunities” of “any indi-\nvidual” prohibits employment practices with disparate im-\npacts in firing older workers and in promoting, paying, and\nmanaging them, but not in hiring them! Congress was con-\ncerned about all of these forms of discrimination. Wirtz Re-\nport at 21–22; see also Employment of Older Workers, 111 Cong.\nRec. 15518, 15518–19 (1965) (describing Wirtz Report as urg-\ning “a clear, unequivocal national policy against hiring that\ndiscriminates against older workers” and referring to “job\nopenings,” and “applicants over 45”); EEOC v. Wyoming, 460\nU.S. 226, 231 (1983) (observing that Wirtz Report concluded\n“arbitrary age discrimination was profoundly harmful … [be-\ncause] it deprived the national economy of the productive la-\nbor of millions … [and] substantially increased costs in unem-\nployment insurance and federal Social Security benefits” for\nolder workers who could not land a job).\n A central goal—arguably the most central goal—of the\nstatute was to prevent age discrimination in hiring. Congress\nand the Wirtz Report explained that the problem stemmed\nnot just from explicit bias against older workers (i.e., dispar-\nate treatment), but also from “[a]ny formal employment\nstandard” neutral on its face yet with adverse effects on oth-\nerwise qualified older applicants. Wirtz Report at 3; see also\nSmith, 544 U.S. at 235 n.5. Those neutral standards and other\nthoughtless or even well-intentioned employment practices\ncan be addressed only with a disparate-impact theory under\n\nNo. 17-1206 55\n\n§ 623(a)(2). The report made clear that the older people who\nsuffered the disparate impact from such practices were those\ntrying to get hired in the first place. The report explained that\ndespite the beneficial effects of such policies, “ironically, they\nsometimes have tended to push still further down the age at\nwhich employers begin asking whether or not a prospective em-\nployee is too old to be taken on.” Wirtz Report at 2 (emphasis\nadded).\n Against this evidence of contemporary understandings,\nthe majority offers no plausible policy reasons, but only its\nwooden and narrow textual interpretation, which is anything\nbut inevitable. Wearing blinders that prevent sensible inter-\npretation of ambiguous statutory language, the majority\nadopts the improbable view that the Act outlawed employ-\nment practices with disparate impacts on older workers, but\nexcluded from that protection everyone not already working\nfor the employer in question.\n * * *\n Given the statutory language in § 623(a)(2), the interpreta-\ntion of that language in Smith and identical language in\nGriggs, the practical consequences of the interpretive choice,\nand the absence of any policy rationale for barring outside job\napplicants from raising disparate-impact claims, we should\nreject the improbable and arbitrary distinction adopted by the\nmajority. We should hold that outside job applicants like\nKleber may bring disparate-impact claims of age discrimina-\ntion. I respectfully dissent.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4361291/", "author_raw": "HAMILTON, Circuit Judge, dissenting"}]}	WOOD	BAUER	FLAUM	2	EASTERBROOK; KANNE; ROVNER; SYKES; HAMILTON; BARRETT; BRENNAN; SCUDDER; ST EVE	{"WOOD": ", Chief", "BAUER": ", Circuit", "FLAUM": ", Circuit", "EASTERBROOK": ", Circuit", "KANNE": ", Circuit", "ROVNER": ", Circuit", "SYKES": ", Circuit", "HAMILTON": ", Circuit", "BARRETT": ", Circuit", "BRENNAN": ", Circuit", "SCUDDER": ", Circuit", "ST EVE": ", Circuit"}	3	2	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4584038/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Dale Kleber v. CareFusion Corporation\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-23\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-1206\nDALE E. KLEBER,\n Plaintiff-Appellant,\n v.\n\nCAREFUSION CORPORATION,\n Defendant-Appellee.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 1:15-cv-1994 — Sharon Johnson Coleman, Judge.\n ____________________\n\n ARGUED SEPTEMBER 6, 2018 — DECIDED JANUARY 23, 2019\n ____________________\n\n Before WOOD, Chief Judge, and BAUER, FLAUM,\nEASTERBROOK, KANNE, ROVNER, SYKES, HAMILTON, BARRETT,\nBRENNAN, SCUDDER, and ST. EVE, Circuit Judges.\n SCUDDER, Circuit Judge. After Dale Kleber unsuccessfully\napplied for a job at CareFusion Corporation, he sued for age\ndiscrimination on a theory of disparate impact liability. The\ndistrict court dismissed his claim, concluding that § 4(a)(2) of\nthe Age Discrimination in Employment Act did not authorize\njob applicants like Kleber to bring a disparate impact claim\n\n2 No. 17-1206\n\nagainst a prospective employer. A divided panel of this court\nreversed. We granted en banc review and, aﬃrming the dis-\ntrict court, now hold that the plain language of § 4(a)(2) makes\nclear that Congress, while protecting employees from dispar-\nate impact age discrimination, did not extend that same pro-\ntection to outside job applicants. While our conclusion is\ngrounded in § 4(a)(2)’s plain language, it is reinforced by the\nADEA’s broader structure and history.\n I\n In March 2014, Kleber, an attorney, applied for a senior in-\nhouse position in CareFusion’s law department. The job de-\nscription required applicants to have “3 to 7 years (no more\nthan 7 years) of relevant legal experience.” Kleber was 58 at\nthe time he applied and had more than seven years of perti-\nnent experience. CareFusion passed over Kleber and instead\nhired a 29-year-old applicant who met but did not exceed the\nprescribed experience requirement.\n Kleber responded by bringing this action and pursuing\nclaims for both disparate treatment and disparate impact un-\nder § 4(a)(1) and § 4(a)(2) of the ADEA. Relying on our prior\ndecision in EEOC v. Francis W. Parker School, 41 F.3d 1073 (7th\nCir. 1994), the district court granted CareFusion’s motion to\ndismiss Kleber’s disparate impact claim, reasoning that the\ntext of § 4(a)(2) did not extend to outside job applicants.\nKleber then voluntarily dismissed his separate claim for dis-\nparate treatment liability under § 4(a)(1). This appeal fol-\nlowed.\n\nNo. 17-1206 3\n\n II\n A\n We begin with the plain language of § 4(a)(2). “If the stat-\nutory language is plain, we must enforce it according to its\nterms.” King v. Burwell, 135 S. Ct. 2480, 2489 (2015). This pre-\ncept reinforces the constitutional principle of separation of\npowers, for our role is to interpret the words Congress enacts\ninto law without altering a statute’s clear limits. See Puerto\nRico v. Franklin Cal. Tax-Free Trust, 136 S. Ct. 1938, 1949 (2016).\n Section 4(a)(2) makes it unlawful for an employer\n to limit, segregate, or classify his employees in\n any way which would deprive or tend to de-\n prive any individual of employment opportuni-\n ties or otherwise adversely aﬀect his status as an\n employee, because of such individual’s age.\n29 U.S.C. § 623(a)(2).\n By its terms, § 4(a)(2) proscribes certain conduct by em-\nployers and limits its protection to employees. The prohibited\nconduct entails an employer acting in any way to limit, segre-\ngate, or classify its employees based on age. The language of\n§ 4(a)(2) then goes on to make clear that its proscriptions ap-\nply only if an employer’s actions have a particular impact—\n“depriv[ing] or tend[ing] to deprive any individual of em-\nployment opportunities or otherwise adversely aﬀect[ing] his\nstatus as an employee.” This language plainly demonstrates\nthat the requisite impact must befall an individual with “sta-\ntus as an employee.” Put most simply, the reach of § 4(a)(2)\ndoes not extend to applicants for employment, as common\ndictionary definitions confirm that an applicant has no “status\nas an employee.” See Merriam-Webster’s Collegiate\n\n4 No. 17-1206\n\nDictionary 60, 408 (11th ed. 2003) (defining “applicant” as\n“one who applies,” including, for example, “a job [appli-\ncant],” while defining “employee” as “one employed by an-\nother usu[ally] for wages or salary and in a position below the\nexecutive level”).\n Subjecting the language of § 4(a)(2) to even closer scrutiny\nreinforces our conclusion. Congress did not prohibit just con-\nduct that “would deprive or tend to deprive any individual of\nemployment opportunities.” It went further. Section 4(a)(2)\nemploys a catchall formulation—“or otherwise adversely af-\nfect his status as an employee”—to extend the proscribed con-\nduct. Congress’s word choice is significant and has a unifying\neﬀect: the use of “or otherwise” serves to stitch the prohibi-\ntions and scope of § 4(a)(2) into a whole, first by making clear\nthat the proscribed acts cover all conduct “otherwise af-\nfect[ing] his status as an employee,” and, second, by limiting\nthe reach of the statutory protection to an individual with\n“status as an employee.” See Villarreal v. R.J. Reynolds Tobacco\nCo., 839 F.3d 958, 964 (11th Cir. 2016) (en banc) (interpreting\n§ 4(a)(2) the same way and explaining that the “or otherwise”\nlanguage “operates as a catchall: the specific items that pre-\ncede it are meant to be subsumed by what comes after the ‘or\notherwise’”).\n Kleber begs to diﬀer, arguing that § 4(a)(2)’s coverage\nextends beyond employees to applicants for employment. He\ngets there by focusing on the language in the middle of\n§ 4(a)(2)—“deprive or tend to deprive any individual of\nemployment opportunities”—and contends that the use of\nthe expansive term “any individual” shows that Congress\nwished to cover outside job applicants. If the only question\nwere whether a job applicant counts as “any individual,”\n\nNo. 17-1206 5\n\nKleber would be right. But time and again the Supreme Court\nhas instructed that statutory interpretation requires reading a\ntext as a whole, and here that requires that we refrain from\nisolating two words when the language surrounding those\ntwo words supplies essential meaning and resolves the\nquestion before us. See, e.g., United Sav. Ass’n of Tex. v. Timbers\nof Inwood Forest Assocs., Ltd., 484 U.S. 365, 371 (1988)\n(describing statutory construction as a “holistic endeavor”);\nsee also K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988)\n(directing courts to consider “the language and design of the\nstatute as a whole”); Trustees of Chicago Truck Drivers v.\nLeaseway Transp. Corp., 76 F.3d 824, 828 (7th Cir. 1996)\n(emphasizing the same points and explaining that the\nmeaning of statutory text comes from reading language in\ncontext and not words in insolation).\n Reading § 4(a)(2) in its entirety shows that Congress em-\nployed the term “any individual” as a shorthand reference to\nsomeone with “status as an employee.” This construction is\nclear from Congress’s use of language telling us that the pro-\nvision covers “any individual” deprived of an employment\nopportunity because such conduct “adversely aﬀects his sta-\ntus as an employee.” Put diﬀerently, ordinary principles of\ngrammatical construction require connecting “any individ-\nual” (the antecedent) with the subsequent personal possessive\npronoun “his,” and upon doing so we naturally read “any in-\ndividual” as referring and limited to someone with “status as\nan employee.” See Flora v. United States, 362 U.S. 145, 150\n(1960) (“This Court naturally does not review congressional\nenactments as a panel of grammarians; but neither do we re-\ngard ordinary principles of English prose as irrelevant to a\nconstruction of those enactments.”). The clear takeaway is\nthat a covered individual must be an employee.\n\n6 No. 17-1206\n\n Our conclusion becomes ironclad the moment we look be-\nyond § 4(a)(2) and ask whether other provisions of the ADEA\ndistinguish between employees and applicants. See Mount\nLemmon Fire Dist. v. Guido, 139 S. Ct. 22, 24 (2018) (endorsing\nthis same approach when interpreting the ADEA’s various\ndefinitions of “employer”). We do not have to look far to see\nthat the answer is yes.\n Right next door to § 4(a)(2) is § 4(a)(1), the ADEA’s dispar-\nate treatment provision. In § 4(a)(1), Congress made it unlaw-\nful for an employer “to fail or refuse to hire or to discharge any\nindividual or otherwise discriminate against any individual\nwith respect to his compensation, terms, conditions, or privi-\nleges of employment, because of such individual’s age.” 29\nU.S.C. § 623(a)(1) (emphasis added). All agree that § 4(a)(1),\nby its terms, covers both employees and applicants. See, e.g.,\nKralman v. Ill. Dep’t of Veterans’ Aﬀairs, 23 F.3d 150, 152–53 (7th\nCir. 1994) (treating an applicant’s right to bring a claim under\n§ 4(a)(1) as unquestioned). Compelling this consensus is\n§ 4(a)(1)’s use of the words “to fail or refuse to hire or to dis-\ncharge,” which make clear that “any individual” includes\nsomeone seeking to be hired. 29 U.S.C. § 623(a)(1).\n Yet a side-by-side comparison of § 4(a)(1) with § 4(a)(2)\nshows that the language in the former plainly covering appli-\ncants is conspicuously absent from the latter. Section 4(a)(2)\nsays nothing about an employer’s decision “to fail or refuse to\nhire … any individual” and instead speaks only in terms of\nan employer’s actions that “adversely aﬀect his status as an\nemployee.” We cannot conclude this diﬀerence means noth-\ning: “when ‘Congress includes particular language in one sec-\ntion of a statute but omits it in another’—let alone in the very\nnext provision—the Court presumes that Congress intended\n\nNo. 17-1206 7\n\na diﬀerence in meaning.” Loughrin v. United States, 573 U.S.\n351, 358 (2014) (quoting Russello v. United States, 464 U.S. 16,\n23 (1983)).\n There is even more. A short distance away from § 4(a)(2)\nis § 4(c)(2), which disallows labor organizations from engag-\ning in particular conduct. Section 4(c)(2), in pertinent part,\nmakes it unlawful for a labor organization\n to limit, segregate, or classify its membership …\n in any way which would deprive or tend to de-\n prive any individual of employment opportuni-\n ties … or otherwise adversely aﬀect his status as\n an employee or as an applicant for employment, be-\n cause of such individualʹs age.\n29 U.S.C. § 623(c)(2) (emphasis added).\n The parallel with § 4(a)(2) is striking: both provisions de-\nfine the prohibited conduct in terms of action that “would de-\nprive or tend to deprive any individual of employment op-\nportunities,” only then to include the “or otherwise adversely\naﬀect” catchall language. But there is a big diﬀerence between\nthe two provisions: § 4(c)(2)’s protection extends to any indi-\nvidual with “status as an employee or as an applicant for em-\nployment,” whereas Congress limited § 4(a)(2)’s reach only to\nsomeone with “status as an employee.”\n Consider yet another example. In § 4(d), Congress ad-\ndressed employer retaliation by making it “unlawful for an\nemployer to discriminate against any of his employees or appli-\ncants for employment” because such an individual has opposed\ncertain unlawful practices of age discrimination. 29 U.S.C.\n§ 623(d) (emphasis added). Here, too, the distinction between\n“employees” and “applicants” jumps oﬀ the page.\n\n8 No. 17-1206\n\n Each of these provisions distinguishes between employees\nand applicants. It is implausible that Congress intended no\nsuch distinction in § 4(a)(2), however, and instead used the\nterm employees to cover both employees and applicants. To\nconclude otherwise runs afoul of the Supreme Court’s ad-\nmonition to take statutes as we find them by giving eﬀect to\ndiﬀerences in meaning evidenced by diﬀerences in language.\nSee Mount Lemmon Fire Dist., 139 S. Ct. at 26 (declining the\ndefendant’s invitation to take language from one part of a sen-\ntence and then “reimpose it for the portion” of the sentence in\nwhich Congress omitted the same language); see also Dep’t of\nHomeland Sec. v. MacLean, 135 S. Ct. 913, 919 (2015) (explaining\nthat “Congress generally acts intentionally when it uses par-\nticular language in one section of a statute but omits it in an-\nother”).\n In the end, the plain language of § 4(a)(2) leaves room for\nonly one interpretation: Congress authorized only employees\nto bring disparate impact claims.\n B\n Kleber urges a diﬀerent conclusion in no small part on the\nbasis of the Supreme Court’s 1971 decision in Griggs v. Duke\nPower Co., 401 U.S. 424, where the Court interpreted\n§ 703(a)(2) of Title VII and held that disparate impact was a\nviable theory of liability. Indeed, Kleber goes so far as to say\nGriggs—a case where the Court considered language in Title\nVII that at the time paralleled the language we consider\nhere—controls and mandates a decision in his favor. We dis-\nagree.\n A commonsense observation is warranted at the outset. If\nKleber is right that Griggs, a Title VII case, compels the\n\nNo. 17-1206 9\n\nconclusion that § 4(a)(2) of the ADEA authorizes outside job\napplicants to bring a disparate impact claim, we find it very\ndiﬃcult to explain why it took the Supreme Court 34 years to\nresolve whether anyone—employee or applicant—could sue\non a disparate impact theory under the ADEA, as it did in\nSmith v. City of Jackson, 544 U.S. 228 (2005). There was no need\nfor the Court to decide Smith if (all or part of) the answer came\nin Griggs. And when the Court did decide Smith the Justices’\nseparate opinions recognized the imperative of showing\nimpact to an individual’s “status as an employee” when\ndiscerning the reach of § 4(a)(2). See id. at 235–36, 236 n.6\n(plurality opinion); see id. at 266 (O’Connor, J., concurring,\njoined by Kennedy & Thomas, JJ.).\n Kleber’s position fares no better within the four corners of\nGriggs itself. Several African-American employees of Duke\nPower challenged the company’s practice of conditioning cer-\ntain job transfers and promotions on graduating from high\nschool and passing a standardized aptitude test. See 401 U.S.\nat 426. The employees sued under § 703(a) of Title VII, a pro-\nvision that in 1971 mirrored the present language of § 4(a)(2)\nof the ADEA. See id. at 426 n.1. The Court held that § 703(a)(2)\nprohibits disparate impact discrimination by proscribing\n“practices that are fair in form, but discriminatory in opera-\ntion” unless an employer can show that the challenged prac-\ntice is “related to job performance” and thus a “business ne-\ncessity.” Id. at 431.\n Kleber would have us read Griggs beyond its facts by fo-\ncusing on language in a couple of places in the Court’s opin-\nion that he sees as covering employees and applicants alike.\nWe decline the invitation. Nowhere in Griggs did the Court\nstate that its holding extended to job applicants. And that\n\n10 No. 17-1206\n\nmakes perfect sense because nothing about the case, brought\nas it was by employees of Duke Power and not outside appli-\ncants, required the Court to answer that question. The lan-\nguage that Kleber insists on reading in isolation must be read\nin context, and the totality of the Griggs opinion makes clear\nthat the Court answered whether Duke Power’s African-\nAmerican employees could bring a claim for disparate impact\nliability based on practices that kept them from pursuing dif-\nferent, higher-paying jobs within the company.\n What happened a year after Griggs cements our conclu-\nsion. In 1972, Congress amended § 703(a)(2) of Title VII—the\nprovision at issue in Griggs—by adding language to expressly\ninclude “applicants for employment.” Pub. L. No. 92-261,\n§ 8(a), 86 Stat. 109 (1972). This amendment occurred in the im-\nmediate wake of Griggs and, in this way, reflected Congress’s\nswift and clear desire to extend Title VII’s disparate impact\nprotection to job applicants. There was no need for Congress\nto amend § 703(a)(2) if the provision had always covered job\napplicants and especially if the Supreme Court had just said\nso in Griggs. To conclude otherwise renders the 1972 amend-\nment a meaningless act of the 92nd Congress, and we are re-\nluctant to conclude that substantive changes to statutes reflect\nidle acts.\n The Supreme Court endorsed this precise course of analy-\nsis—giving eﬀect to “Congress’s decision to amend Title VII’s\nrelevant provisions but not make similar changes to the\nADEA”—in Gross v. FBL Financial Servs., Inc., 557 U.S. 167, 174\n(2009). The Court there considered whether a plaintiﬀ suing\nunder § 4(a)(1) of the ADEA must establish that age was the\nbut-for cause of an employer’s adverse action. See id. at 173.\nThe plaintiﬀ urged the Court to adopt Title VII’s lesser\n\nNo. 17-1206 11\n\nstandard of race being only a motivating factor in the chal-\nlenged decision. See id. Paramount to the Court’s conclusion\nthat an ADEA plaintiﬀ must prove but-for causation were tex-\ntual diﬀerences between the ADEA and Title VII brought\nabout by Congress’s amendments to Title VII. See id. at 174\n(explaining that “Congress neglected to add such a [motivat-\ning-factor] provision to the ADEA when it amended Title VII\n[in 1991]” and emphasizing that “[w]hen Congress amends\none statutory provision but not another, it is presumed to\nhave acted intentionally”). The Court’s instruction was clear:\nprior decisions interpreting Title VII “do not control our con-\nstruction of the ADEA” where the text of the two statutes are\n“materially diﬀerent.” Id. at 173.\n And so it is here. Congress’s choice to add “applicants” to\n§ 703(a)(2) of Title VII but not to amend § 4(a)(2) of the ADEA\nin the same way is meaningful. Gross teaches that we cannot\nignore such diﬀerences in language between the two enact-\nments. And, at the risk of understatement, Gross is far from an\naberration in statutory construction. A mountain of precedent\nsupports giving eﬀect to statutory amendments. See, e.g.,\nUnited States v. Quality Stores, Inc., 572 U.S. 141, 148 (2014)\n(quoting Stone v. INS, 514 U.S. 386, 397 (1995)) (“When Con-\ngress acts to amend a statute, we presume it intends its\namendment to have real and substantial eﬀect.”); Fidelity Fin.\nServs., Inc. v. Fink, 522 U.S. 211, 220–21 (1998) (explaining that\nafter Congress modified the federal statute controlling when\na transfer of a security interest was perfected, “we see no basis\nto say that subsequent amendments removing references to\nstate-law options had the counterintuitive eﬀect of deferring\nto such [state law] options” without unwinding the statutory\namendments); United States v. Wells, 519 U.S. 482, 492–93\n(1997) (explaining that after Congress amended the federal\n\n12 No. 17-1206\n\ncriminal statute pertinent to false representations to remove\nany express reference to materiality, “the most likely infer-\nence in these circumstances is that Congress deliberately\ndropped the term ‘materiality’ without intending materiality\nto be an element of [18 U.S.C.] § 1014”); Stone, 514 U.S. at 397–\n98 (explaining that after Congress amended the Immigration\nand Naturalization Act, “[t]he reasonable construction [was]\nthat the amendment was enacted as an exception, not just to\nstate an already existing rule”).\n In no way does this analysis downplay Griggs, as our dis-\nsenting colleagues contend. We have approached Griggs as\nbinding precedent and construed its holding not only by\nreading what the Supreme Court’s opinion says (and does not\nsay), but also in light of Congress’s immediately amending\nTitle VII (but not § 4(a)(2) of the ADEA) to cover “applicants”\nas well as the broader development in the law ever since, in-\ncluding with precedents like Smith in 2005 and Gross in 2009.\n The upshot is clear: while Congress amended § 703(a)(2)\nof Title VII in 1972 to cover “applicants for employment,” it\nhas never followed suit and modified § 4(a)(2) of the ADEA in\nthe same way. And this is so despite Congress’s\ndemonstrating, just a few years after Griggs, that it knew how\nto amend the ADEA to expressly include outside job\napplicants. See Villarreal, 839 F.3d at 979–80 (Rosenbaum, J.,\nconcurring) (observing that Congress amended the ADEA in\n1974 to extend the statute’s reach to federal-government\nemployment, and in doing so, explicitly referenced both\n“employees and applicants for employment” in the new\nprovision, 29 U.S.C. § 633a).\n Today, then, § 703(a)(2) of Title VII diﬀers from § 4(a)(2) in\nat least one material respect: the protections of the former\n\nNo. 17-1206 13\n\nextend expressly to “applicants for employment,” while the\nlatter covers only individuals with “status as an employee.”\nWe underscored this exact diﬀerence 14 years ago in our opin-\nion in Francis W. Parker, and we do so again today. See 41 F.3d\nat 1077 (“The ‘mirror’ provision in the ADEA omits from its\ncoverage, ‘applicants for employment.’”). The plain language\nof § 4(a)(2) controls and compels judgment in CareFusion’s\nfavor.\n C\n Beyond his reliance on Griggs, Kleber invites us to read the\nADEA against the backdrop of Congress’s clear purpose of\nbroadly prohibiting age discrimination. On this score, he\npoints us to the Supreme Court’s decision in Robinson v. Shell\nOil Company, 519 U.S. 337 (1997) and to the report of the\nformer Secretary of the Department of Labor, Willard Wirtz.\n In Robinson, the Court held that § 704(a) of Title VII ex-\ntended not just to “employees” (a term used in § 704(a)), but\nalso to former employees. See id. at 346. The Court empha-\nsized that, while the meaning of “employees” was ambigu-\nous, Title VII’s broader structure made plain that Congress\nintended the term to cover former employees, a construction\nthat furthered Title VII’s broader purposes. None of this helps\nKleber. (Indeed, if anything, Robinson’s clear observation of\nthe distinct and separate meaning of “employees” and “appli-\ncants for employment” in § 704(a) severely undermines\nKleber’s textual argument. See id. at 344.) Robinson, in short,\nprovides direction on how courts— if confronted with statu-\ntory ambiguity—should resolve such ambiguity. There being\nno ambiguity in the meaning of § 4(a)(2) of the ADEA, our\nrole ends—an outcome on all fours with Robinson.\n\n14 No. 17-1206\n\n The Wirtz Report reflected the Labor Department’s\nresponse to Congress’s request for recommended age\ndiscrimination legislation, and a plurality of the Supreme\nCourt in Smith treated the Report as an authoritative signal of\nCongress’s intent when enacting the ADEA. See Smith, 544\nU.S. at 238. We do too.\n Nobody disputes that the Wirtz Report reinforces\nCongress’s clear aim of enacting the ADEA to prevent age\ndiscrimination in the workplace by encouraging the\nemployment of older persons, including older job applicants.\nBut we decline to resolve the question presented here on the\nbasis of broad statutory purposes or, more specifically, to\nforce an interpretation of but one provision of the ADEA\n(here, § 4(a)(2)) to advance the enactment’s full objectives.\n Our responsibility is to interpret § 4(a)(2) as it stands in the\nU.S. Code and to ask whether the provision covers outside job\napplicants. We cannot say it does and remain faithful to the\nprovision’s plain meaning. It remains the province of\nCongress to choose where to draw legislative lines and to\nmark those lines with language. Our holding gives eﬀect to\nthe plain limits embodied in the text of § 4(a)(2).\n The ADEA, moreover, is a wide-ranging statutory scheme,\nmade up of many provisions beyond § 4(a)(2). And a broader\nlook at the statute shows that outside job applicants have\nother provisions at their disposal to respond to age discrimi-\nnation. Section 4(a)(1), for example, prevents an employer\nfrom disparately treating both job applicants and employees\non the basis of age. See 29 U.S.C. § 623(a)(1). Section 4(c)(2),\nprevents a labor organization’s potential age discrimination\nagainst both job applicants and employees. See 29 U.S.C.\n§ 623(c)(2).\n\nNo. 17-1206 15\n\n Today’s decision, while unfavorable to Kleber, leaves\nteeth in § 4(a)(2). The provision protects older employees who\nencounter age-based disparate impact discrimination in the\nworkplace. And Congress, of course, remains free to do what\nthe judiciary cannot—extend § 4(a)(2) to outside job appli-\ncants, as it did in amending Title VII.\n For these reasons, we AFFIRM.\n\n16 No. 17-1206\n[END_CASE]", "role": "user" } ]
4,584,054		United States v. Ronald Coleman	2019-01-23	17-3636	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before WOOD, Chief Judge, and EASTERBROOK and BRENNAN, Circuit Judges.", "parties": "", "opinions": [{"author": "Diane Pamela Wood", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-3636\nUNITED STATES OF AMERICA,\n Plaintiff-Appellee,\n v.\n\nRONALD T. COLEMAN,\n Defendant-Appellant.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 16-CR-723 — Charles R. Norgle, Judge.\n ____________________\n\n ARGUED SEPTEMBER 24, 2018 — DECIDED JANUARY 23, 2019\n ____________________\n\n Before WOOD, Chief Judge, and EASTERBROOK and\nBRENNAN, Circuit Judges.\n WOOD, Chief Judge. Ronald Coleman is a former Chicago\npolice officer who turned to crime. In June 2014, he was as-\nsigned to a federal drug investigation task force, which was\nabout to execute numerous search and arrest warrants.\nShortly before the operations were set to begin, Coleman tel-\nephoned one of the targets—a high school acquaintance—to\nwarn him about the raid. That call led to a single charge of\n\f2 No. 17-3636\n\nobstruction of justice, in violation of 18 U.S.C. § 1512(c)(2),\nand the end of Coleman’s law-enforcement career when a jury\nconvicted him. Coleman now argues that he is entitled to a\nnew trial for two primary reasons: evidentiary errors, and the\ngovernment’s use of allegedly perjured testimony. He also\nurges that the district court committed procedural and sub-\nstantive errors when selecting his sentence. Because we find\nno prejudicial error in any of the district court’s rulings, we\naffirm both the conviction and the sentence.\n I\n Coleman is a lifelong Chicagoan who grew up to become\nan officer with the Chicago Police Department. In high school,\nhe met cousins Dewan Davis and LaRon Conway. Though\nColeman was not close with either of these men after high\nschool, he maintained a casual friendship with them.\n In 2014, Coleman served on the team conducting a federal\ndrug investigation dubbed Operation Five Leaf Clover (“the\nOperation”). In time, the Operation began to focus on several\npeople whom Coleman knew, including Davis. Although Da-\nvis was never a target of the Operation, he was identified as\nan associate of a heroin supplier named Rodney Bedenfield.\nIn June 2014 the Operation was preparing to execute approx-\nimately 10 search warrants and numerous arrest warrants.\nBut things went awry when, shortly before the bust, the tar-\ngets learned about it.\n Conway testified that while he was at work on June 9,\n2014, he received a call from an unknown woman who told\nhim to call Coleman. This call does not appear in Conway’s\npersonal phone records. Conway testified that when he fol-\nlowed the woman’s instructions and called Coleman,\n\fNo. 17-3636 3\n\nColeman warned him about the impending searches and told\nhim to pass the message along to Davis. (Coleman admits that\nthis call took place, but he told the jury that it was about set-\nting up a Father’s Day picnic.) Conway did what he was told\nand warned Davis about the looming raid. Unbeknownst to\nColeman, however, the task force knew that something was\namiss. The Operation had wiretapped numerous phones as\npart of its investigation, and so when Davis predictably called\nBedenfield, officers heard the two men say that someone “on\nthe task force” had given them a warning call. Davis testified\nthat he understood this person to be Coleman.\n After Coleman’s warning, Bedenfield moved contraband\nto a house that the Operation had not known about before.\nBecause they had intercepted the warning, however, officers\nwere monitoring Bedenfield when this move occurred. The\nOperation then obtained a search warrant for the new house\nand recovered the contraband placed there.\n Based on the warning call, the grand jury indicted Cole-\nman on one count of obstruction of justice. On August 10,\n2017, a jury convicted him on that charge. The district court\nlater denied his motion for a new trial and sentenced him to\n60 months’ imprisonment. On appeal, Coleman raises four\nobjections—two related to the conviction, and two to the sen-\ntence.\n II\n A\n Coleman first complains that the government improperly\nelicited testimony from Conway to the effect that he lied in his\ninitial interviews with law-enforcement agents because he\nfeared retaliation from the Chicago Police Department.\n\f4 No. 17-3636\n\nAlthough he objected to this testimony at trial, the ground for\nthat objection was relevance. FED. R. EVID. 401. On appeal, he\nhas gone further and asserted that Conway’s testimony was\nso prejudicial that it deprived him of a fair trial.\n We assess the district court’s handling of Coleman’s rele-\nvance objection only for abuse of discretion. United States v.\nPhillips, 596 F.3d 414, 416 (7th Cir. 2010). Conway’s testimony\nfalls into the category of “threat evidence.” We have held that\nthis type of evidence “‘can be relevant to explain a witness’\ninconsistent statements.’” United States v. Thompson, 359 F.3d\n470, 477 (7th Cir. 2004) (quoting United States v. Thomas, 86\nF.3d 647, 654 (7th Cir. 1996)). That theory fits these facts. Con-\nway made numerous inconsistent statements to investigators\nin his earlier interviews. The government thus needed to ex-\nplain why he had lied, and the threat testimony served that\npurpose. The district court thus acted within its discretion\nwhen it refused to sustain Coleman’s objection.\n As for the due-process argument, Coleman faces a more\ndifficult standard of review. Because he never made this ar-\ngument in the district court, we review it only for plain error.\nSee United States v. Saunders, 826 F.3d 363, 370–71 (7th Cir.\n2016).\n It is not clear to us that it was error at all to admit this evi-\ndence, much less that any such error was so serious that Cole-\nman “probably would not have been convicted but for the er-\nror.” United States v. Curtis, 280 F.3d 798, 801 (7th Cir. 2002).\n We can assume for present purposes that Conway’s testi-\nmony was likely to be highly prejudicial. And the prejudice\nmay have been compounded because Conway did not allege\na specific threat of retaliation by any member of the Chicago\n\fNo. 17-3636 5\n\nPolice Department—just vague fears based on rumors or sto-\nries he had supposedly heard. But because Coleman never ob-\njected on this basis, the district court was never alerted to the\nneed to weigh the legitimate use of this evidence against its\nweaknesses and incendiary nature. See United States v. Cox,\n536 F.3d 723, 728 (7th Cir. 2008). Indeed, the amorphous na-\nture of the threats Conway described might have caused the\ndistrict court to think that Coleman had a strategic reason for\nnot objecting to that evidence, such as a preference for attack-\ning the weaknesses in Conway’s story on cross-examination.\n Even if the district court did not surmise that Coleman was\nintentionally refraining from objecting on due-process\ngrounds, the court’s failure to strike this testimony sua sponte\nor to take other remedial action was not plain error. Cf. id.\n(holding that two government witnesses’ testimony that the\ndefendant cooked methamphetamine using the “Nazi\nmethod” was not so prejudicial as to create plain error even\nthough it “had almost no probative value”). Furthermore,\nColeman had ample opportunity to attack Conway’s testi-\nmony on cross-examination and in closing argument.\n Coleman also argues that Conway’s testimony about retal-\niation was prompted by an improper leading question. He is\ncorrect that the government’s question, “Were you afraid for\nyou[r] family?” was leading and thus generally improper on\ndirect examination. The government’s contention to the con-\ntrary in this court is simply wrong. A question is leading\nwhen it suggests the answer the witness should give. “Since\n[fearing for one’s family] is unusual, the question would be\nunlikely to be asked unless an affirmative answer was ex-\npected.” United States v. Cephus, 684 F.3d 703, 708 (7th Cir.\n2012). But even when they are improper, leading questions\n\f6 No. 17-3636\n\nrarely give rise to plain error. See United States v. Durham, 645\nF.3d 883, 891 (7th Cir. 2011). This is because “in the face of a\nsustained objection, most lawyers can rephrase a leading\nquestion to elicit the desired testimony.” Id. That is especially\nlikely when the leading question elicits the same response\nthat a witness would have given if asked a neutral question.\nSee United States v. Miller, 782 F.3d 793, 799–800 (7th Cir.\n2015). In this case, Conway had previously told investigators\nthat he feared retaliation from the Chicago Police Depart-\nment, and so there is no reason to think that the government’s\nleading question changed his testimony. We thus find no re-\nversible error in the district court’s failure to take some action\nwith respect to Conway’s retaliation testimony.\n B\n Coleman also asserts that he should receive a new trial be-\ncause the government knowingly used perjured testimony.\nHe is referring to Conway’s description of the call he received\nfrom the unknown woman; that call set in motion the chain of\ncalls warning the suspects about the impending raids. A de-\nfendant seeking a new trial because of the use of perjured tes-\ntimony must show: “(1) the prosecution’s case included per-\njured testimony; (2) the prosecution knew, or should have\nknown, of the perjury; and (3) there is a likelihood that the\nfalse testimony affected the judgment of the jury.” United\nStates v. Saadeh, 61 F.3d 510, 523 (7th Cir. 1995).\n It is doubtful that Coleman can meet even the first of these\ncriteria. All we know is that the phone call from the unknown\nwoman to Conway did not show up on Conway’s personal\nphone records. But there may have been other phones availa-\nble, such as a work phone. And the lack of a record was not\nsomething the government was trying to hide. To the\n\fNo. 17-3636 7\n\ncontrary, it was the government that introduced the phone\nrecords that undercut Conway’s story. That fact is also incon-\nsistent with Coleman’s theory that the government was en-\ngaged in the knowing use of perjured testimony.\n And there is yet another problem with this line of argu-\nment: even if the government knew (or should have known)\nthat Conway was giving false testimony about the woman’s\ncall, so did Coleman. During closing argument, Coleman\nused Conway’s testimony about the call from the mysterious,\nunidentified woman to argue that Conway was a liar whom\nthe jury should not believe. When a defendant has, and takes\nadvantage of, the opportunity to cross-examine, discredit,\nand expose a witness’s perjury, the likelihood that perjured\ntestimony will have “affected the judgment of the jury” is\ngreatly diminished. See id.; see also Long v. Pfister, 874 F.3d\n544, 549 (7th Cir. 2017) (en banc) (suggesting that when “the\nprosecutor fails to correct a falsehood, but the defense knows\nabout that falsehood and corrects it … there is no constitu-\ntional violation”). The district court did not abuse its discre-\ntion in refusing to grant a new trial for this reason.\n III\n Finally, we turn to Coleman’s complaints about his sen-\ntence. He first argues that the district court erroneously found\nthat he perjured himself when he testified at trial that his\nphone call with Conway was about a Father’s Day picnic, and\nthen imposed an enhancement under the Sentencing Guide-\nlines for obstruction of justice. U.S.S.G. § 3C1.1. Second, he ar-\ngues that his 60-month sentence is unreasonable and a viola-\ntion of the Eighth Amendment to the U.S. Constitution.\n\f8 No. 17-3636\n\n We review the district court’s findings in support of the\nobstruction enhancement deferentially. United States v.\nCherry, 855 F.3d 813, 815–16 (7th Cir. 2017). We find the court’s\ndecision well supported. When relying on perjured testimony\nfor the application of the section 3C1.1 offense-level enhance-\nment, “the district court should make a finding as to all the\nfactual predicates necessary for a finding of perjury: false tes-\ntimony, materiality, and willful intent.” United States v. Chy-\nchula, 757 F.3d 615, 619 (7th Cir. 2014) (quoting United States\nv. Riney, 742 F.3d 785, 790 (7th Cir. 2014)). Coleman’s version\nof the telephone call was inconsistent with the other testi-\nmony. More importantly, it was the jury’s prerogative to de-\ncide whom to believe, and the jury chose not to believe Cole-\nman. The district court found that Coleman’s testimony was\n“calculated to confuse the jury,” but that it was a lie “not very\nwell told.” Coleman offers no reason to overturn these assess-\nments.\n We need say only a word or two about Coleman’s argu-\nments that his sentence is substantively unreasonable and un-\nconstitutional. The fact that he can point to other cases in\nwhich law-enforcement officers have committed crimes and\nreceived lower sentences tells us very little, especially since it\nappears that none of his comparators was convicted of ob-\nstruction of justice. Coleman’s sentence was 37 months below\nthe recommended guidelines range for someone with an of-\nfense level of 30 and a criminal-history category of I (97 to 121\nmonths). Indeed, even without the obstruction enhancement,\nhis sentence would have been 28 months below the recom-\nmended guidelines range. “We presume the district court’s\nimposition of a below-[g]uidelines sentence to be reasonable.”\nUnited States v. Jones, 696 F.3d 695, 699 (7th Cir. 2012).\n\fNo. 17-3636 9\n\nColeman offers no reason why that presumption has been\novercome here.\n Because his sentence was reasonable, it also falls well out-\nside the Eighth Amendment’s prohibition on cruel and unu-\nsual punishments. See id. (“If the sentence is within the statu-\ntory limits, a claim of cruel and unusual punishment is nor-\nmally without merit.”); see also Harmelin v. Michigan, 501 U.S.\n957, 965 (1991) (“[T]he Eighth Amendment contains no pro-\nportionality guarantee.”).\n * * *\n We AFFIRM Coleman’s conviction and sentence.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4361307/", "author_raw": "Diane Pamela Wood"}]}	WOOD	EASTERBROOK	BRENNAN	1		{"WOOD": ", Chief", "EASTERBROOK": ", Circuit", "BRENNAN": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4584054/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: United States v. Ronald Coleman\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-23\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-3636\nUNITED STATES OF AMERICA,\n Plaintiff-Appellee,\n v.\n\nRONALD T. COLEMAN,\n Defendant-Appellant.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 16-CR-723 — Charles R. Norgle, Judge.\n ____________________\n\n ARGUED SEPTEMBER 24, 2018 — DECIDED JANUARY 23, 2019\n ____________________\n\n Before WOOD, Chief Judge, and EASTERBROOK and\nBRENNAN, Circuit Judges.\n WOOD, Chief Judge. Ronald Coleman is a former Chicago\npolice officer who turned to crime. In June 2014, he was as-\nsigned to a federal drug investigation task force, which was\nabout to execute numerous search and arrest warrants.\nShortly before the operations were set to begin, Coleman tel-\nephoned one of the targets—a high school acquaintance—to\nwarn him about the raid. That call led to a single charge of\n\f2 No. 17-3636\n\nobstruction of justice, in violation of 18 U.S.C. § 1512(c)(2),\nand the end of Coleman’s law-enforcement career when a jury\nconvicted him. Coleman now argues that he is entitled to a\nnew trial for two primary reasons: evidentiary errors, and the\ngovernment’s use of allegedly perjured testimony. He also\nurges that the district court committed procedural and sub-\nstantive errors when selecting his sentence. Because we find\nno prejudicial error in any of the district court’s rulings, we\naffirm both the conviction and the sentence.\n I\n Coleman is a lifelong Chicagoan who grew up to become\nan officer with the Chicago Police Department. In high school,\nhe met cousins Dewan Davis and LaRon Conway. Though\nColeman was not close with either of these men after high\nschool, he maintained a casual friendship with them.\n In 2014, Coleman served on the team conducting a federal\ndrug investigation dubbed Operation Five Leaf Clover (“the\nOperation”). In time, the Operation began to focus on several\npeople whom Coleman knew, including Davis. Although Da-\nvis was never a target of the Operation, he was identified as\nan associate of a heroin supplier named Rodney Bedenfield.\nIn June 2014 the Operation was preparing to execute approx-\nimately 10 search warrants and numerous arrest warrants.\nBut things went awry when, shortly before the bust, the tar-\ngets learned about it.\n Conway testified that while he was at work on June 9,\n2014, he received a call from an unknown woman who told\nhim to call Coleman. This call does not appear in Conway’s\npersonal phone records. Conway testified that when he fol-\nlowed the woman’s instructions and called Coleman,\n\fNo. 17-3636 3\n\nColeman warned him about the impending searches and told\nhim to pass the message along to Davis. (Coleman admits that\nthis call took place, but he told the jury that it was about set-\nting up a Father’s Day picnic.) Conway did what he was told\nand warned Davis about the looming raid. Unbeknownst to\nColeman, however, the task force knew that something was\namiss. The Operation had wiretapped numerous phones as\npart of its investigation, and so when Davis predictably called\nBedenfield, officers heard the two men say that someone “on\nthe task force” had given them a warning call. Davis testified\nthat he understood this person to be Coleman.\n After Coleman’s warning, Bedenfield moved contraband\nto a house that the Operation had not known about before.\nBecause they had intercepted the warning, however, officers\nwere monitoring Bedenfield when this move occurred. The\nOperation then obtained a search warrant for the new house\nand recovered the contraband placed there.\n Based on the warning call, the grand jury indicted Cole-\nman on one count of obstruction of justice. On August 10,\n2017, a jury convicted him on that charge. The district court\nlater denied his motion for a new trial and sentenced him to\n60 months’ imprisonment. On appeal, Coleman raises four\nobjections—two related to the conviction, and two to the sen-\ntence.\n II\n A\n Coleman first complains that the government improperly\nelicited testimony from Conway to the effect that he lied in his\ninitial interviews with law-enforcement agents because he\nfeared retaliation from the Chicago Police Department.\n\f4 No. 17-3636\n\nAlthough he objected to this testimony at trial, the ground for\nthat objection was relevance. FED. R. EVID. 401. On appeal, he\nhas gone further and asserted that Conway’s testimony was\nso prejudicial that it deprived him of a fair trial.\n We assess the district court’s handling of Coleman’s rele-\nvance objection only for abuse of discretion. United States v.\nPhillips, 596 F.3d 414, 416 (7th Cir. 2010). Conway’s testimony\nfalls into the category of “threat evidence.” We have held that\nthis type of evidence “‘can be relevant to explain a witness’\ninconsistent statements.’” United States v. Thompson, 359 F.3d\n470, 477 (7th Cir. 2004) (quoting United States v. Thomas, 86\nF.3d 647, 654 (7th Cir. 1996)). That theory fits these facts. Con-\nway made numerous inconsistent statements to investigators\nin his earlier interviews. The government thus needed to ex-\nplain why he had lied, and the threat testimony served that\npurpose. The district court thus acted within its discretion\nwhen it refused to sustain Coleman’s objection.\n As for the due-process argument, Coleman faces a more\ndifficult standard of review. Because he never made this ar-\ngument in the district court, we review it only for plain error.\nSee United States v. Saunders, 826 F.3d 363, 370–71 (7th Cir.\n2016).\n It is not clear to us that it was error at all to admit this evi-\ndence, much less that any such error was so serious that Cole-\nman “probably would not have been convicted but for the er-\nror.” United States v. Curtis, 280 F.3d 798, 801 (7th Cir. 2002).\n We can assume for present purposes that Conway’s testi-\nmony was likely to be highly prejudicial. And the prejudice\nmay have been compounded because Conway did not allege\na specific threat of retaliation by any member of the Chicago\n\fNo. 17-3636 5\n\nPolice Department—just vague fears based on rumors or sto-\nries he had supposedly heard. But because Coleman never ob-\njected on this basis, the district court was never alerted to the\nneed to weigh the legitimate use of this evidence against its\nweaknesses and incendiary nature. See United States v. Cox,\n536 F.3d 723, 728 (7th Cir. 2008). Indeed, the amorphous na-\nture of the threats Conway described might have caused the\ndistrict court to think that Coleman had a strategic reason for\nnot objecting to that evidence, such as a preference for attack-\ning the weaknesses in Conway’s story on cross-examination.\n Even if the district court did not surmise that Coleman was\nintentionally refraining from objecting on due-process\ngrounds, the court’s failure to strike this testimony sua sponte\nor to take other remedial action was not plain error. Cf. id.\n(holding that two government witnesses’ testimony that the\ndefendant cooked methamphetamine using the “Nazi\nmethod” was not so prejudicial as to create plain error even\nthough it “had almost no probative value”). Furthermore,\nColeman had ample opportunity to attack Conway’s testi-\nmony on cross-examination and in closing argument.\n Coleman also argues that Conway’s testimony about retal-\niation was prompted by an improper leading question. He is\ncorrect that the government’s question, “Were you afraid for\nyou[r] family?” was leading and thus generally improper on\ndirect examination. The government’s contention to the con-\ntrary in this court is simply wrong. A question is leading\nwhen it suggests the answer the witness should give. “Since\n[fearing for one’s family] is unusual, the question would be\nunlikely to be asked unless an affirmative answer was ex-\npected.” United States v. Cephus, 684 F.3d 703, 708 (7th Cir.\n2012). But even when they are improper, leading questions\n\f6 No. 17-3636\n\nrarely give rise to plain error. See United States v. Durham, 645\nF.3d 883, 891 (7th Cir. 2011). This is because “in the face of a\nsustained objection, most lawyers can rephrase a leading\nquestion to elicit the desired testimony.” Id. That is especially\nlikely when the leading question elicits the same response\nthat a witness would have given if asked a neutral question.\nSee United States v. Miller, 782 F.3d 793, 799–800 (7th Cir.\n2015). In this case, Conway had previously told investigators\nthat he feared retaliation from the Chicago Police Depart-\nment, and so there is no reason to think that the government’s\nleading question changed his testimony. We thus find no re-\nversible error in the district court’s failure to take some action\nwith respect to Conway’s retaliation testimony.\n B\n Coleman also asserts that he should receive a new trial be-\ncause the government knowingly used perjured testimony.\nHe is referring to Conway’s description of the call he received\nfrom the unknown woman; that call set in motion the chain of\ncalls warning the suspects about the impending raids. A de-\nfendant seeking a new trial because of the use of perjured tes-\ntimony must show: “(1) the prosecution’s case included per-\njured testimony; (2) the prosecution knew, or should have\nknown, of the perjury; and (3) there is a likelihood that the\nfalse testimony affected the judgment of the jury.” United\nStates v. Saadeh, 61 F.3d 510, 523 (7th Cir. 1995).\n It is doubtful that Coleman can meet even the first of these\ncriteria. All we know is that the phone call from the unknown\nwoman to Conway did not show up on Conway’s personal\nphone records. But there may have been other phones availa-\nble, such as a work phone. And the lack of a record was not\nsomething the government was trying to hide. To the\n\fNo. 17-3636 7\n\ncontrary, it was the government that introduced the phone\nrecords that undercut Conway’s story. That fact is also incon-\nsistent with Coleman’s theory that the government was en-\ngaged in the knowing use of perjured testimony.\n And there is yet another problem with this line of argu-\nment: even if the government knew (or should have known)\nthat Conway was giving false testimony about the woman’s\ncall, so did Coleman. During closing argument, Coleman\nused Conway’s testimony about the call from the mysterious,\nunidentified woman to argue that Conway was a liar whom\nthe jury should not believe. When a defendant has, and takes\nadvantage of, the opportunity to cross-examine, discredit,\nand expose a witness’s perjury, the likelihood that perjured\ntestimony will have “affected the judgment of the jury” is\ngreatly diminished. See id.; see also Long v. Pfister, 874 F.3d\n544, 549 (7th Cir. 2017) (en banc) (suggesting that when “the\nprosecutor fails to correct a falsehood, but the defense knows\nabout that falsehood and corrects it … there is no constitu-\ntional violation”). The district court did not abuse its discre-\ntion in refusing to grant a new trial for this reason.\n III\n Finally, we turn to Coleman’s complaints about his sen-\ntence. He first argues that the district court erroneously found\nthat he perjured himself when he testified at trial that his\nphone call with Conway was about a Father’s Day picnic, and\nthen imposed an enhancement under the Sentencing Guide-\nlines for obstruction of justice. U.S.S.G. § 3C1.1. Second, he ar-\ngues that his 60-month sentence is unreasonable and a viola-\ntion of the Eighth Amendment to the U.S. Constitution.\n\f8 No. 17-3636\n\n We review the district court’s findings in support of the\nobstruction enhancement deferentially. United States v.\nCherry, 855 F.3d 813, 815–16 (7th Cir. 2017). We find the court’s\ndecision well supported. When relying on perjured testimony\nfor the application of the section 3C1.1 offense-level enhance-\nment, “the district court should make a finding as to all the\nfactual predicates necessary for a finding of perjury: false tes-\ntimony, materiality, and willful intent.” United States v. Chy-\nchula, 757 F.3d 615, 619 (7th Cir. 2014) (quoting United States\nv. Riney, 742 F.3d 785, 790 (7th Cir. 2014)). Coleman’s version\nof the telephone call was inconsistent with the other testi-\nmony. More importantly, it was the jury’s prerogative to de-\ncide whom to believe, and the jury chose not to believe Cole-\nman. The district court found that Coleman’s testimony was\n“calculated to confuse the jury,” but that it was a lie “not very\nwell told.” Coleman offers no reason to overturn these assess-\nments.\n We need say only a word or two about Coleman’s argu-\nments that his sentence is substantively unreasonable and un-\nconstitutional. The fact that he can point to other cases in\nwhich law-enforcement officers have committed crimes and\nreceived lower sentences tells us very little, especially since it\nappears that none of his comparators was convicted of ob-\nstruction of justice. Coleman’s sentence was 37 months below\nthe recommended guidelines range for someone with an of-\nfense level of 30 and a criminal-history category of I (97 to 121\nmonths). Indeed, even without the obstruction enhancement,\nhis sentence would have been 28 months below the recom-\nmended guidelines range. “We presume the district court’s\nimposition of a below-[g]uidelines sentence to be reasonable.”\nUnited States v. Jones, 696 F.3d 695, 699 (7th Cir. 2012).\n\fNo. 17-3636 9\n\nColeman offers no reason why that presumption has been\novercome here.\n Because his sentence was reasonable, it also falls well out-\nside the Eighth Amendment’s prohibition on cruel and unu-\nsual punishments. See id. (“If the sentence is within the statu-\ntory limits, a claim of cruel and unusual punishment is nor-\nmally without merit.”); see also Harmelin v. Michigan, 501 U.S.\n957, 965 (1991) (“[T]he Eighth Amendment contains no pro-\nportionality guarantee.”).\n * * *\n We AFFIRM Coleman’s conviction and sentence.\n[END_CASE]", "role": "user" } ]
4,584,056		Dale Kleber v. CareFusion Corporation	2019-01-23	17-1206	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before WOOD, Chief Judge, and BAUER, FLAUM, EASTERBROOK, KANNE, ROVNER, SYKES, HAMILTON, BARRETT, BRENNAN, SCUDDER, and ST. EVE, Circuit Judges.", "parties": "", "opinions": [{"author": "by EASTERBROOK, Circuit Judge.", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-1206\nDALE E. KLEBER,\n Plaintiff-Appellant,\n v.\n\nCAREFUSION CORPORATION,\n Defendant-Appellee.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 1:15-cv-1994 — Sharon Johnson Coleman, Judge.\n ____________________\n\n ARGUED SEPTEMBER 6, 2018 — DECIDED JANUARY 23, 2019\n ____________________\n\n Before WOOD, Chief Judge, and BAUER, FLAUM,\nEASTERBROOK, KANNE, ROVNER, SYKES, HAMILTON, BARRETT,\nBRENNAN, SCUDDER, and ST. EVE, Circuit Judges.\n SCUDDER, Circuit Judge. After Dale Kleber unsuccessfully\napplied for a job at CareFusion Corporation, he sued for age\ndiscrimination on a theory of disparate impact liability. The\ndistrict court dismissed his claim, concluding that § 4(a)(2) of\nthe Age Discrimination in Employment Act did not authorize\njob applicants like Kleber to bring a disparate impact claim\n\n2 No. 17-1206\n\nagainst a prospective employer. A divided panel of this court\nreversed. We granted en banc review and, aﬃrming the dis-\ntrict court, now hold that the plain language of § 4(a)(2) makes\nclear that Congress, while protecting employees from dispar-\nate impact age discrimination, did not extend that same pro-\ntection to outside job applicants. While our conclusion is\ngrounded in § 4(a)(2)’s plain language, it is reinforced by the\nADEA’s broader structure and history.\n I\n In March 2014, Kleber, an attorney, applied for a senior in-\nhouse position in CareFusion’s law department. The job de-\nscription required applicants to have “3 to 7 years (no more\nthan 7 years) of relevant legal experience.” Kleber was 58 at\nthe time he applied and had more than seven years of perti-\nnent experience. CareFusion passed over Kleber and instead\nhired a 29-year-old applicant who met but did not exceed the\nprescribed experience requirement.\n Kleber responded by bringing this action and pursuing\nclaims for both disparate treatment and disparate impact un-\nder § 4(a)(1) and § 4(a)(2) of the ADEA. Relying on our prior\ndecision in EEOC v. Francis W. Parker School, 41 F.3d 1073 (7th\nCir. 1994), the district court granted CareFusion’s motion to\ndismiss Kleber’s disparate impact claim, reasoning that the\ntext of § 4(a)(2) did not extend to outside job applicants.\nKleber then voluntarily dismissed his separate claim for dis-\nparate treatment liability under § 4(a)(1). This appeal fol-\nlowed.\n\nNo. 17-1206 3\n\n II\n A\n We begin with the plain language of § 4(a)(2). “If the stat-\nutory language is plain, we must enforce it according to its\nterms.” King v. Burwell, 135 S. Ct. 2480, 2489 (2015). This pre-\ncept reinforces the constitutional principle of separation of\npowers, for our role is to interpret the words Congress enacts\ninto law without altering a statute’s clear limits. See Puerto\nRico v. Franklin Cal. Tax-Free Trust, 136 S. Ct. 1938, 1949 (2016).\n Section 4(a)(2) makes it unlawful for an employer\n to limit, segregate, or classify his employees in\n any way which would deprive or tend to de-\n prive any individual of employment opportuni-\n ties or otherwise adversely aﬀect his status as an\n employee, because of such individual’s age.\n29 U.S.C. § 623(a)(2).\n By its terms, § 4(a)(2) proscribes certain conduct by em-\nployers and limits its protection to employees. The prohibited\nconduct entails an employer acting in any way to limit, segre-\ngate, or classify its employees based on age. The language of\n§ 4(a)(2) then goes on to make clear that its proscriptions ap-\nply only if an employer’s actions have a particular impact—\n“depriv[ing] or tend[ing] to deprive any individual of em-\nployment opportunities or otherwise adversely aﬀect[ing] his\nstatus as an employee.” This language plainly demonstrates\nthat the requisite impact must befall an individual with “sta-\ntus as an employee.” Put most simply, the reach of § 4(a)(2)\ndoes not extend to applicants for employment, as common\ndictionary definitions confirm that an applicant has no “status\nas an employee.” See Merriam-Webster’s Collegiate\n\n4 No. 17-1206\n\nDictionary 60, 408 (11th ed. 2003) (defining “applicant” as\n“one who applies,” including, for example, “a job [appli-\ncant],” while defining “employee” as “one employed by an-\nother usu[ally] for wages or salary and in a position below the\nexecutive level”).\n Subjecting the language of § 4(a)(2) to even closer scrutiny\nreinforces our conclusion. Congress did not prohibit just con-\nduct that “would deprive or tend to deprive any individual of\nemployment opportunities.” It went further. Section 4(a)(2)\nemploys a catchall formulation—“or otherwise adversely af-\nfect his status as an employee”—to extend the proscribed con-\nduct. Congress’s word choice is significant and has a unifying\neﬀect: the use of “or otherwise” serves to stitch the prohibi-\ntions and scope of § 4(a)(2) into a whole, first by making clear\nthat the proscribed acts cover all conduct “otherwise af-\nfect[ing] his status as an employee,” and, second, by limiting\nthe reach of the statutory protection to an individual with\n“status as an employee.” See Villarreal v. R.J. Reynolds Tobacco\nCo., 839 F.3d 958, 964 (11th Cir. 2016) (en banc) (interpreting\n§ 4(a)(2) the same way and explaining that the “or otherwise”\nlanguage “operates as a catchall: the specific items that pre-\ncede it are meant to be subsumed by what comes after the ‘or\notherwise’”).\n Kleber begs to diﬀer, arguing that § 4(a)(2)’s coverage\nextends beyond employees to applicants for employment. He\ngets there by focusing on the language in the middle of\n§ 4(a)(2)—“deprive or tend to deprive any individual of\nemployment opportunities”—and contends that the use of\nthe expansive term “any individual” shows that Congress\nwished to cover outside job applicants. If the only question\nwere whether a job applicant counts as “any individual,”\n\nNo. 17-1206 5\n\nKleber would be right. But time and again the Supreme Court\nhas instructed that statutory interpretation requires reading a\ntext as a whole, and here that requires that we refrain from\nisolating two words when the language surrounding those\ntwo words supplies essential meaning and resolves the\nquestion before us. See, e.g., United Sav. Ass’n of Tex. v. Timbers\nof Inwood Forest Assocs., Ltd., 484 U.S. 365, 371 (1988)\n(describing statutory construction as a “holistic endeavor”);\nsee also K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988)\n(directing courts to consider “the language and design of the\nstatute as a whole”); Trustees of Chicago Truck Drivers v.\nLeaseway Transp. Corp., 76 F.3d 824, 828 (7th Cir. 1996)\n(emphasizing the same points and explaining that the\nmeaning of statutory text comes from reading language in\ncontext and not words in insolation).\n Reading § 4(a)(2) in its entirety shows that Congress em-\nployed the term “any individual” as a shorthand reference to\nsomeone with “status as an employee.” This construction is\nclear from Congress’s use of language telling us that the pro-\nvision covers “any individual” deprived of an employment\nopportunity because such conduct “adversely aﬀects his sta-\ntus as an employee.” Put diﬀerently, ordinary principles of\ngrammatical construction require connecting “any individ-\nual” (the antecedent) with the subsequent personal possessive\npronoun “his,” and upon doing so we naturally read “any in-\ndividual” as referring and limited to someone with “status as\nan employee.” See Flora v. United States, 362 U.S. 145, 150\n(1960) (“This Court naturally does not review congressional\nenactments as a panel of grammarians; but neither do we re-\ngard ordinary principles of English prose as irrelevant to a\nconstruction of those enactments.”). The clear takeaway is\nthat a covered individual must be an employee.\n\n6 No. 17-1206\n\n Our conclusion becomes ironclad the moment we look be-\nyond § 4(a)(2) and ask whether other provisions of the ADEA\ndistinguish between employees and applicants. See Mount\nLemmon Fire Dist. v. Guido, 139 S. Ct. 22, 24 (2018) (endorsing\nthis same approach when interpreting the ADEA’s various\ndefinitions of “employer”). We do not have to look far to see\nthat the answer is yes.\n Right next door to § 4(a)(2) is § 4(a)(1), the ADEA’s dispar-\nate treatment provision. In § 4(a)(1), Congress made it unlaw-\nful for an employer “to fail or refuse to hire or to discharge any\nindividual or otherwise discriminate against any individual\nwith respect to his compensation, terms, conditions, or privi-\nleges of employment, because of such individual’s age.” 29\nU.S.C. § 623(a)(1) (emphasis added). All agree that § 4(a)(1),\nby its terms, covers both employees and applicants. See, e.g.,\nKralman v. Ill. Dep’t of Veterans’ Aﬀairs, 23 F.3d 150, 152–53 (7th\nCir. 1994) (treating an applicant’s right to bring a claim under\n§ 4(a)(1) as unquestioned). Compelling this consensus is\n§ 4(a)(1)’s use of the words “to fail or refuse to hire or to dis-\ncharge,” which make clear that “any individual” includes\nsomeone seeking to be hired. 29 U.S.C. § 623(a)(1).\n Yet a side-by-side comparison of § 4(a)(1) with § 4(a)(2)\nshows that the language in the former plainly covering appli-\ncants is conspicuously absent from the latter. Section 4(a)(2)\nsays nothing about an employer’s decision “to fail or refuse to\nhire … any individual” and instead speaks only in terms of\nan employer’s actions that “adversely aﬀect his status as an\nemployee.” We cannot conclude this diﬀerence means noth-\ning: “when ‘Congress includes particular language in one sec-\ntion of a statute but omits it in another’—let alone in the very\nnext provision—the Court presumes that Congress intended\n\nNo. 17-1206 7\n\na diﬀerence in meaning.” Loughrin v. United States, 573 U.S.\n351, 358 (2014) (quoting Russello v. United States, 464 U.S. 16,\n23 (1983)).\n There is even more. A short distance away from § 4(a)(2)\nis § 4(c)(2), which disallows labor organizations from engag-\ning in particular conduct. Section 4(c)(2), in pertinent part,\nmakes it unlawful for a labor organization\n to limit, segregate, or classify its membership …\n in any way which would deprive or tend to de-\n prive any individual of employment opportuni-\n ties … or otherwise adversely aﬀect his status as\n an employee or as an applicant for employment, be-\n cause of such individualʹs age.\n29 U.S.C. § 623(c)(2) (emphasis added).\n The parallel with § 4(a)(2) is striking: both provisions de-\nfine the prohibited conduct in terms of action that “would de-\nprive or tend to deprive any individual of employment op-\nportunities,” only then to include the “or otherwise adversely\naﬀect” catchall language. But there is a big diﬀerence between\nthe two provisions: § 4(c)(2)’s protection extends to any indi-\nvidual with “status as an employee or as an applicant for em-\nployment,” whereas Congress limited § 4(a)(2)’s reach only to\nsomeone with “status as an employee.”\n Consider yet another example. In § 4(d), Congress ad-\ndressed employer retaliation by making it “unlawful for an\nemployer to discriminate against any of his employees or appli-\ncants for employment” because such an individual has opposed\ncertain unlawful practices of age discrimination. 29 U.S.C.\n§ 623(d) (emphasis added). Here, too, the distinction between\n“employees” and “applicants” jumps oﬀ the page.\n\n8 No. 17-1206\n\n Each of these provisions distinguishes between employees\nand applicants. It is implausible that Congress intended no\nsuch distinction in § 4(a)(2), however, and instead used the\nterm employees to cover both employees and applicants. To\nconclude otherwise runs afoul of the Supreme Court’s ad-\nmonition to take statutes as we find them by giving eﬀect to\ndiﬀerences in meaning evidenced by diﬀerences in language.\nSee Mount Lemmon Fire Dist., 139 S. Ct. at 26 (declining the\ndefendant’s invitation to take language from one part of a sen-\ntence and then “reimpose it for the portion” of the sentence in\nwhich Congress omitted the same language); see also Dep’t of\nHomeland Sec. v. MacLean, 135 S. Ct. 913, 919 (2015) (explaining\nthat “Congress generally acts intentionally when it uses par-\nticular language in one section of a statute but omits it in an-\nother”).\n In the end, the plain language of § 4(a)(2) leaves room for\nonly one interpretation: Congress authorized only employees\nto bring disparate impact claims.\n B\n Kleber urges a diﬀerent conclusion in no small part on the\nbasis of the Supreme Court’s 1971 decision in Griggs v. Duke\nPower Co., 401 U.S. 424, where the Court interpreted\n§ 703(a)(2) of Title VII and held that disparate impact was a\nviable theory of liability. Indeed, Kleber goes so far as to say\nGriggs—a case where the Court considered language in Title\nVII that at the time paralleled the language we consider\nhere—controls and mandates a decision in his favor. We dis-\nagree.\n A commonsense observation is warranted at the outset. If\nKleber is right that Griggs, a Title VII case, compels the\n\nNo. 17-1206 9\n\nconclusion that § 4(a)(2) of the ADEA authorizes outside job\napplicants to bring a disparate impact claim, we find it very\ndiﬃcult to explain why it took the Supreme Court 34 years to\nresolve whether anyone—employee or applicant—could sue\non a disparate impact theory under the ADEA, as it did in\nSmith v. City of Jackson, 544 U.S. 228 (2005). There was no need\nfor the Court to decide Smith if (all or part of) the answer came\nin Griggs. And when the Court did decide Smith the Justices’\nseparate opinions recognized the imperative of showing\nimpact to an individual’s “status as an employee” when\ndiscerning the reach of § 4(a)(2). See id. at 235–36, 236 n.6\n(plurality opinion); see id. at 266 (O’Connor, J., concurring,\njoined by Kennedy & Thomas, JJ.).\n Kleber’s position fares no better within the four corners of\nGriggs itself. Several African-American employees of Duke\nPower challenged the company’s practice of conditioning cer-\ntain job transfers and promotions on graduating from high\nschool and passing a standardized aptitude test. See 401 U.S.\nat 426. The employees sued under § 703(a) of Title VII, a pro-\nvision that in 1971 mirrored the present language of § 4(a)(2)\nof the ADEA. See id. at 426 n.1. The Court held that § 703(a)(2)\nprohibits disparate impact discrimination by proscribing\n“practices that are fair in form, but discriminatory in opera-\ntion” unless an employer can show that the challenged prac-\ntice is “related to job performance” and thus a “business ne-\ncessity.” Id. at 431.\n Kleber would have us read Griggs beyond its facts by fo-\ncusing on language in a couple of places in the Court’s opin-\nion that he sees as covering employees and applicants alike.\nWe decline the invitation. Nowhere in Griggs did the Court\nstate that its holding extended to job applicants. And that\n\n10 No. 17-1206\n\nmakes perfect sense because nothing about the case, brought\nas it was by employees of Duke Power and not outside appli-\ncants, required the Court to answer that question. The lan-\nguage that Kleber insists on reading in isolation must be read\nin context, and the totality of the Griggs opinion makes clear\nthat the Court answered whether Duke Power’s African-\nAmerican employees could bring a claim for disparate impact\nliability based on practices that kept them from pursuing dif-\nferent, higher-paying jobs within the company.\n What happened a year after Griggs cements our conclu-\nsion. In 1972, Congress amended § 703(a)(2) of Title VII—the\nprovision at issue in Griggs—by adding language to expressly\ninclude “applicants for employment.” Pub. L. No. 92-261,\n§ 8(a), 86 Stat. 109 (1972). This amendment occurred in the im-\nmediate wake of Griggs and, in this way, reflected Congress’s\nswift and clear desire to extend Title VII’s disparate impact\nprotection to job applicants. There was no need for Congress\nto amend § 703(a)(2) if the provision had always covered job\napplicants and especially if the Supreme Court had just said\nso in Griggs. To conclude otherwise renders the 1972 amend-\nment a meaningless act of the 92nd Congress, and we are re-\nluctant to conclude that substantive changes to statutes reflect\nidle acts.\n The Supreme Court endorsed this precise course of analy-\nsis—giving eﬀect to “Congress’s decision to amend Title VII’s\nrelevant provisions but not make similar changes to the\nADEA”—in Gross v. FBL Financial Servs., Inc., 557 U.S. 167, 174\n(2009). The Court there considered whether a plaintiﬀ suing\nunder § 4(a)(1) of the ADEA must establish that age was the\nbut-for cause of an employer’s adverse action. See id. at 173.\nThe plaintiﬀ urged the Court to adopt Title VII’s lesser\n\nNo. 17-1206 11\n\nstandard of race being only a motivating factor in the chal-\nlenged decision. See id. Paramount to the Court’s conclusion\nthat an ADEA plaintiﬀ must prove but-for causation were tex-\ntual diﬀerences between the ADEA and Title VII brought\nabout by Congress’s amendments to Title VII. See id. at 174\n(explaining that “Congress neglected to add such a [motivat-\ning-factor] provision to the ADEA when it amended Title VII\n[in 1991]” and emphasizing that “[w]hen Congress amends\none statutory provision but not another, it is presumed to\nhave acted intentionally”). The Court’s instruction was clear:\nprior decisions interpreting Title VII “do not control our con-\nstruction of the ADEA” where the text of the two statutes are\n“materially diﬀerent.” Id. at 173.\n And so it is here. Congress’s choice to add “applicants” to\n§ 703(a)(2) of Title VII but not to amend § 4(a)(2) of the ADEA\nin the same way is meaningful. Gross teaches that we cannot\nignore such diﬀerences in language between the two enact-\nments. And, at the risk of understatement, Gross is far from an\naberration in statutory construction. A mountain of precedent\nsupports giving eﬀect to statutory amendments. See, e.g.,\nUnited States v. Quality Stores, Inc., 572 U.S. 141, 148 (2014)\n(quoting Stone v. INS, 514 U.S. 386, 397 (1995)) (“When Con-\ngress acts to amend a statute, we presume it intends its\namendment to have real and substantial eﬀect.”); Fidelity Fin.\nServs., Inc. v. Fink, 522 U.S. 211, 220–21 (1998) (explaining that\nafter Congress modified the federal statute controlling when\na transfer of a security interest was perfected, “we see no basis\nto say that subsequent amendments removing references to\nstate-law options had the counterintuitive eﬀect of deferring\nto such [state law] options” without unwinding the statutory\namendments); United States v. Wells, 519 U.S. 482, 492–93\n(1997) (explaining that after Congress amended the federal\n\n12 No. 17-1206\n\ncriminal statute pertinent to false representations to remove\nany express reference to materiality, “the most likely infer-\nence in these circumstances is that Congress deliberately\ndropped the term ‘materiality’ without intending materiality\nto be an element of [18 U.S.C.] § 1014”); Stone, 514 U.S. at 397–\n98 (explaining that after Congress amended the Immigration\nand Naturalization Act, “[t]he reasonable construction [was]\nthat the amendment was enacted as an exception, not just to\nstate an already existing rule”).\n In no way does this analysis downplay Griggs, as our dis-\nsenting colleagues contend. We have approached Griggs as\nbinding precedent and construed its holding not only by\nreading what the Supreme Court’s opinion says (and does not\nsay), but also in light of Congress’s immediately amending\nTitle VII (but not § 4(a)(2) of the ADEA) to cover “applicants”\nas well as the broader development in the law ever since, in-\ncluding with precedents like Smith in 2005 and Gross in 2009.\n The upshot is clear: while Congress amended § 703(a)(2)\nof Title VII in 1972 to cover “applicants for employment,” it\nhas never followed suit and modified § 4(a)(2) of the ADEA in\nthe same way. And this is so despite Congress’s\ndemonstrating, just a few years after Griggs, that it knew how\nto amend the ADEA to expressly include outside job\napplicants. See Villarreal, 839 F.3d at 979–80 (Rosenbaum, J.,\nconcurring) (observing that Congress amended the ADEA in\n1974 to extend the statute’s reach to federal-government\nemployment, and in doing so, explicitly referenced both\n“employees and applicants for employment” in the new\nprovision, 29 U.S.C. § 633a).\n Today, then, § 703(a)(2) of Title VII diﬀers from § 4(a)(2) in\nat least one material respect: the protections of the former\n\nNo. 17-1206 13\n\nextend expressly to “applicants for employment,” while the\nlatter covers only individuals with “status as an employee.”\nWe underscored this exact diﬀerence 14 years ago in our opin-\nion in Francis W. Parker, and we do so again today. See 41 F.3d\nat 1077 (“The ‘mirror’ provision in the ADEA omits from its\ncoverage, ‘applicants for employment.’”). The plain language\nof § 4(a)(2) controls and compels judgment in CareFusion’s\nfavor.\n C\n Beyond his reliance on Griggs, Kleber invites us to read the\nADEA against the backdrop of Congress’s clear purpose of\nbroadly prohibiting age discrimination. On this score, he\npoints us to the Supreme Court’s decision in Robinson v. Shell\nOil Company, 519 U.S. 337 (1997) and to the report of the\nformer Secretary of the Department of Labor, Willard Wirtz.\n In Robinson, the Court held that § 704(a) of Title VII ex-\ntended not just to “employees” (a term used in § 704(a)), but\nalso to former employees. See id. at 346. The Court empha-\nsized that, while the meaning of “employees” was ambigu-\nous, Title VII’s broader structure made plain that Congress\nintended the term to cover former employees, a construction\nthat furthered Title VII’s broader purposes. None of this helps\nKleber. (Indeed, if anything, Robinson’s clear observation of\nthe distinct and separate meaning of “employees” and “appli-\ncants for employment” in § 704(a) severely undermines\nKleber’s textual argument. See id. at 344.) Robinson, in short,\nprovides direction on how courts— if confronted with statu-\ntory ambiguity—should resolve such ambiguity. There being\nno ambiguity in the meaning of § 4(a)(2) of the ADEA, our\nrole ends—an outcome on all fours with Robinson.\n\n14 No. 17-1206\n\n The Wirtz Report reflected the Labor Department’s\nresponse to Congress’s request for recommended age\ndiscrimination legislation, and a plurality of the Supreme\nCourt in Smith treated the Report as an authoritative signal of\nCongress’s intent when enacting the ADEA. See Smith, 544\nU.S. at 238. We do too.\n Nobody disputes that the Wirtz Report reinforces\nCongress’s clear aim of enacting the ADEA to prevent age\ndiscrimination in the workplace by encouraging the\nemployment of older persons, including older job applicants.\nBut we decline to resolve the question presented here on the\nbasis of broad statutory purposes or, more specifically, to\nforce an interpretation of but one provision of the ADEA\n(here, § 4(a)(2)) to advance the enactment’s full objectives.\n Our responsibility is to interpret § 4(a)(2) as it stands in the\nU.S. Code and to ask whether the provision covers outside job\napplicants. We cannot say it does and remain faithful to the\nprovision’s plain meaning. It remains the province of\nCongress to choose where to draw legislative lines and to\nmark those lines with language. Our holding gives eﬀect to\nthe plain limits embodied in the text of § 4(a)(2).\n The ADEA, moreover, is a wide-ranging statutory scheme,\nmade up of many provisions beyond § 4(a)(2). And a broader\nlook at the statute shows that outside job applicants have\nother provisions at their disposal to respond to age discrimi-\nnation. Section 4(a)(1), for example, prevents an employer\nfrom disparately treating both job applicants and employees\non the basis of age. See 29 U.S.C. § 623(a)(1). Section 4(c)(2),\nprevents a labor organization’s potential age discrimination\nagainst both job applicants and employees. See 29 U.S.C.\n§ 623(c)(2).\n\nNo. 17-1206 15\n\n Today’s decision, while unfavorable to Kleber, leaves\nteeth in § 4(a)(2). The provision protects older employees who\nencounter age-based disparate impact discrimination in the\nworkplace. And Congress, of course, remains free to do what\nthe judiciary cannot—extend § 4(a)(2) to outside job appli-\ncants, as it did in amending Title VII.\n For these reasons, we AFFIRM.\n\n16 No. 17-1206", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4361309/", "author_raw": "by EASTERBROOK, Circuit Judge."}, {"author": "EASTERBROOK, Circuit Judge, dissenting", "type": "dissent", "text": "EASTERBROOK, Circuit Judge, dissenting. I do not join the\nmajority’s opinion, because the statute lacks a plain mean-\ning. Robinson v. Shell Oil Corp., 519 U.S. 337 (1997), held that\nthe word “employees” in one part of Title VII includes ex-\nemployees. Robinson interpreted text in context. Here, too,\nthe judiciary must look outside one subsection to tell wheth-\ner “individual” in 29 U.S.C. §623(a)(2) includes applicants\nfor employment.\n But neither do I join all of Judge Hamilton’s dissent,\nwhich relies on legislative purpose. The purpose of a law is\nimputed by judges; it is not a thing to be mined out of a stat-\nute. Even when we know what direction the legislature\nwanted to move, we must know how far to go—and making\nthat choice is a legislative task. See, e.g., Rodriguez v. United\nStates, 480 U.S. 522, 525–26 (1987). Our job is to apply the en-\nacted text, the only thing to which the House, the Senate,\nand the President all subscribed, not to plumb legislators’\nhopes and goals.\n Section 623(a) provides:\n It shall be unlawful for an employer—\n (1) to fail or refuse to hire or to discharge any individual or\n otherwise discriminate against any individual with respect\n to his compensation, terms, conditions, or privileges of em-\n ployment, because of such individual’s age;\n (2) to limit, segregate, or classify his employees in any way\n which would deprive or tend to deprive any individual of\n employment opportunities or otherwise adversely aﬀect his\n status as an employee, because of such individual’s age; or\n (3) to reduce the wage rate of any employee in order to com-\n ply with this chapter.\n\nNo. 17-1206 17\n\nThe word “individual” in paragraph (1) includes applicants\nfor employment; everyone agrees on this much. “Individual”\nreappears in paragraph (2), and normally one word used in\nadjacent paragraphs means a single thing. See Antonin Scalia\n& Bryan A. Garner, Reading Law: The Interpretation of Legal\nTexts (2011) (Canon 25: Presumption of Consistent Usage).\nMaybe the trailing phrase in paragraph (2)—”otherwise ad-\nversely aﬀect his status as an employee”—implies that the\nword “individual” in paragraph (2) means only employees.\nThat’s what the majority believes. But maybe, as Part I.C of\nJudge Hamilton’s dissent suggests, this phrase establishes an\nindependent set of rights for employees, without implying\nthat applicants for employment are not “individuals.”\n The statutory context does not point ineluctably to one\nunderstanding. The majority does not explain why the stat-\nute would use “individual” in dramatically diﬀerent ways\nwithin the space of a few words. But the principal dissent\ndoes not explain how we can read “individual” in paragraph\n(2) to include “applicant” without causing paragraphs (1)\nand (2) to converge. If that happens, then paragraph (2) ap-\nplies disparate-impact analysis to all employment actions.\nThat leaves little or nothing for paragraph (1) to do, for par-\nagraph (2), no less than paragraph (1), prohibits disparate\ntreatment.\n Smith v. Jackson, 544 U.S. 228, 236 n.6 (2005) (plurality\nopinion), tells us that paragraphs (1) and (2) have diﬀerent\nscopes and that only paragraph (2) provides disparate-\nimpact liability. That conclusion is enough by itself to expose\nproblems in Part III of Judge Hamilton’s dissent, which in\nthe name of legislative purpose would extend disparate-\nimpact analysis across the board. Yet this does not help us to\n\n18 No. 17-1206\n\nknow what “individual” in paragraph (2) does mean. Per-\nhaps Justice O’Connor was right in Smith, 544 U.S. at 247–68\n(concurring opinion), and we should not impute disparate-\nimpact liability to paragraph (2). The question we are ad-\ndressing today may have no answer; it may be an artifact of\nthe way the plurality in Smith distinguished paragraph (1)\nfrom paragraph (2), and if Justice O’Connor is right there’s\nno need to search for that nonexistent answer. But that mode\nof resolving this suit is not open to a court of appeals.\n Because neither text nor purpose oﬀers a satisfactory so-\nlution, we should stop with precedent. Griggs v. Duke Power\nCo., 401 U.S. 424 (1971), treats the word “individual” in 42\nU.S.C. §2000e–2(a)(2), as it stood before an amendment in\n1972, as including applicants for employment. The pre-1972\nversion of that statute is identical to the existing text in\n§623(a); Congress copied this part of the ADEA from that\npart of Title VII. It may be that the Court in Griggs was care-\nless to treat outside applicants for employment as “individ-\nuals” in paragraph (2), but that is what the Justices did. Part\nII of Judge Hamilton’s opinion shows how this came to hap-\npen and also shows that many of the Supreme Court’s later\ndecisions read Griggs to hold that paragraph (2) in the pre-\n1972 version of Title VII applies disparate-impact theory to\noutside applicants for employment. If the Justices think that\nthis topic (or Smith itself) needs a new look, the matter is for\nthem to decide. I therefore join Part II of Judge Hamilton’s\ndissenting opinion.\n\nNo. 17-1206 19", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4361309/", "author_raw": "EASTERBROOK, Circuit Judge, dissenting"}, {"author": "HAMILTON, Circuit Judge, dissenting", "type": "dissent", "text": "HAMILTON, Circuit Judge, dissenting, joined by WOOD,\nChief Judge, and ROVNER, Circuit Judge, and joined as to Part II\nby EASTERBROOK, Circuit Judge.\n We should reverse the district court’s Rule 12(b)(6) dismis-\nsal of plaintiff Dale Kleber’s disparate impact claim and re-\nmand for further proceedings. The key provision of the Age\nDiscrimination in Employment Act prohibits both employ-\nment practices that discriminate intentionally against older\nworkers and those that have disparate impacts on older work-\ners. 29 U.S.C. § 623(a); Smith v. City of Jackson, 544 U.S. 228\n(2005). The central issue in this appeal is whether the dispar-\nate-impact provision, § 623(a)(2), protects only current em-\nployees or whether it protects current employees and outside\njob applicants.\n We should hold that the disparate-impact language in\n§ 623(a)(2) protects both outside job applicants and current\nemployees. Part I of this opinion explains why that’s the better\nreading of the statutory text that is at worst ambiguous on\ncoverage of job applicants. While other ADEA provisions pro-\ntect job applicants more clearly, the Supreme Court guides us\naway from the majority’s word-matching and toward a more\nsensible and less arbitrary reading. See Robinson v. Shell Oil\nCo., 519 U.S. 337, 341–46 (1997).\n Part II explains that protecting outside job applicants\ntracks the Supreme Court’s reading of identical statutory lan-\nguage in Title VII of the Civil Rights Act of 1964. In Griggs v.\nDuke Power Co., 401 U.S. 424, 426 n.1, 431 (1971), the Court\nfound that this same disparate-treatment language protects\nnot only current employees but also “the job-seeker”—people\nlike plaintiff Kleber. We should read the same language the\n\n20 No. 17-1206\n\nsame way. The majority tries to avoid this reasoning by nar-\nrowing Griggs and attributing significance to the 1972 amend-\nment of the Title VII disparate-impact provision. As detailed\nin Part II, the actual facts of both the Griggs litigation and the\n1972 amendment flatly contradict the majority’s glib and un-\nsupported theories.\n Part III explains that protecting both outside applicants\nand current employees is also more consistent with the pur-\npose of the Act (as set forth in the statute itself) and avoids\ndrawing an utterly arbitrary line. Neither the defendant nor\nits amici have offered a plausible policy reason why Congress\nmight have chosen to allow disparate-impact claims by cur-\nrent employees, including internal job applicants, while ex-\ncluding outside job applicants. The en banc majority does not\neven try to do so, following instead a deliberately naïve ap-\nproach to an ambiguous statutory text, closing its eyes to fifty\nyears of history, context, and application.\nI. The Text of the ADEA’s Disparate-Impact Provision\n A. Statutory Text of Disputed Provision\n We begin with the statutory language, of course. We ana-\nlyze the specific words and phrases Congress used, but we\ncannot lose sight of their “place in the overall statutory\nscheme,” since we “construe statutes, not isolated provi-\nsions.” King v. Burwell, 135 S. Ct. 2480, 2489 (2015), quoting\nFDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133\n(2000), and Graham County Soil and Water Conservation Dist. v.\nUnited States ex rel. Wilson, 559 U.S. 280, 290 (2010). As the Su-\npreme Court explained in dealing with a similar issue in Title\nVII: “The plainness or ambiguity of statutory language is de-\n\nNo. 17-1206 21\n\ntermined by reference to the language itself, the specific con-\ntext in which that language is used, and the broader context\nof the statute as a whole.” Robinson, 519 U.S. at 341, 346 (pro-\ntection of “employees” from retaliation included former em-\nployees).\n The key provision of the ADEA, 29 U.S.C. § 623(a), reads:\n It shall be unlawful for an employer—\n (1) to fail or refuse to hire or to discharge any\n individual or otherwise discriminate against\n any individual with respect to his compensa-\n tion, terms, conditions, or privileges of employ-\n ment, because of such individual’s age;\n (2) to limit, segregate, or classify his employ-\n ees in any way which would deprive or tend to\n deprive any individual of employment oppor-\n tunities or otherwise adversely affect his status\n as an employee, because of such individual’s\n age; or\n (3) to reduce the wage rate of any employee\n in order to comply with this chapter.\nThe disparate-treatment provision, paragraph (a)(1), does not\nrefer to job applicants, but it clearly applies to them by mak-\ning it unlawful for the employer “to fail or refuse to hire …\nany individual … because of such individual’s age.” The dis-\nparate-impact provision, paragraph (a)(2), also does not refer\nspecifically to applicants or hiring decisions, but its broad lan-\nguage easily reaches employment practices that hurt older job\napplicants as well as current older employees.\n\n22 No. 17-1206\n\n Start with the critical statutory language, which includes\ntwo parallel provisions that prohibit employers from engag-\ning in certain behavior. Under paragraph (a)(1), an employer\nmay not intentionally discriminate against an older individ-\nual by firing or failing to hire or promote her because she is\nolder—i.e., engage in disparate treatment of older individu-\nals. Paragraph (a)(2) prohibits an employer from creating an\ninternal employee classification or limitation that has the ef-\nfect of depriving “any individual of employment opportuni-\nties” or adversely affecting his or her status as an employee\nbecause of age—i.e., creating an internal classification system\nwith a disparate impact against older individuals.\n If an employer classifies a position as one that must be\nfilled by someone with certain minimum or maximum expe-\nrience requirements, it is classifying its employees within the\nmeaning of paragraph (a)(2). If that classification “would de-\nprive or tend to deprive any individual of employment op-\nportunities” because of the person’s age, paragraph (a)(2) can\nreach that classification. The broad phrase “any individual”\nreaches job applicants, so the focus turns to the employer’s\naction and its effects—i.e., whether the employer has classi-\nfied jobs in a way that tends to limit any individual’s employ-\nment opportunities based on age. See Smith, 544 U.S. at 234,\n235–38 (plurality) (explaining that this “text focuses on the ef-\nfects of the action” and not the employer’s motive); id. at 243\n(Scalia, J., concurring).1 The defendant’s maximum-experi-\nence requirement in this case certainly limited plaintiff\nKleber’s employment opportunities.\n\n\n 1Justice Scalia joined Parts I, II, and IV of the Smith opinion by Justice\nStevens and wrote that he also agreed with Justice Stevens’s reasoning in\nPart III. 544 U.S. at 243. I therefore treat all parts of the Smith opinion by\n\nNo. 17-1206 23\n\n B. The Majority’s Cramped Reading\n To avoid this conclusion, the majority emphasizes the\nphrase “or otherwise adversely affect his status as an em-\nployee,” reading it to limit the statute’s disparate-impact pro-\ntection “to an individual with ‘status as an employee.’” Ante\nat 4. Note that the key “with” in that phrase—repeated several\ntimes in the majority opinion—comes only from the majority,\nnot from the statute itself. It’s not correct. The antecedent of\n“his” is “any individual,” and “otherwise adversely affect” is\neven broader than “deprive or tend to deprive any individual\nof employment opportunities.”\n The crux of the majority’s argument is that if “any individ-\nual” is not already employed by the employer in question, the\nindividual does not yet have “status as an employee” and so\nis not protected from policies or practices that have disparate\nimpacts because of age. The majority thus concludes that a\n“person’s status as an employee” cannot be affected unless\nthe person is already an employee. If that’s true, then para-\ngraph (a)(2) subtly limits its protections from disparate im-\npacts to people who already possess “status as an employee”\nwith the defendant-employer.\n The majority’s analysis nullifies the two uses of the broad\nword “individual,” which certainly reaches job applicants.\nWhat Congress meant to say, the majority argues, is that it’s\nunlawful for an employer “to limit, segregate, or classify his\nemployees in any way which would deprive or tend to de-\nprive any current employee [not “any individual”] of employ-\nment opportunities or otherwise adversely affect his status as\n\nJustice Stevens as authoritative without repeatedly citing Justice Scalia’s\nconcurrence as well.\n\n24 No. 17-1206\n\nan employee, because of such employee’s [not “individual’s”]\nage.”\n How does one read a bar against depriving “any individ-\nual” of “employment opportunities” to exclude all cases\nwhere a person is looking for a job? And if Congress meant to\nlimit the provision’s coverage only to current employees, why\ndidn’t it just use the word “employee”? It had used that word\ntwice in this provision already. Courts are generally loath to\nread statutory terms out of a textual provision and to insert\nlimitations that are not evident in the text. See Mount Lemmon\nFire District v. Guido, 139 S. Ct. 22, 26 (2018) (refusing to read\nlimitation into ADEA’s coverage that is not apparent from\ntext, noting that “[t]his Court is not at liberty to insert the ab-\nsent qualifier”).\n C. The Better Reading\n If we look at the language of paragraph (a)(2) in isolation,\nthe majority’s mechanical reading has some superficial plau-\nsibility, but it should be rejected. At the textual level, there are\nthree distinct and fundamental problems.\n First, as Judge Easterbrook points out, the majority’s the-\nory gives the phrase “any individual” very different mean-\nings in adjoining paragraphs (a)(1) and (a)(2) of § 623. Ante at\n17. See also, e.g., Mohasco Corp. v. Silver, 447 U.S. 807, 826\n(1980) (declining to interpret § 706 of Title VII so that the word\n“filed” would have different meanings in different subsec-\ntions).\n Second, the majority merely assumes that “affect his status\nas an employee” necessarily limits the already broad phrase,\n“deprive or tend to deprive any individual of employment\nopportunities.” It is not self-evident—at least as a matter of\n\nNo. 17-1206 25\n\nplain meaning—that the latter “status” phrase must be read as\nlimiting the former. A list culminating in an “or otherwise”\nterm can instead direct the reader to consider the last phrase\nas a catch-all alternative, “in addition to” what came before,\nto capture prohibited actions that might otherwise escape the\nstatute’s reach. For example, an employer can violate the\nADEA by adversely affecting the status of its employees (e.g.,\nby giving bigger raises to junior employees, as alleged in\nSmith, 544 U.S. at 231) without depriving an individual of em-\nployment opportunities such as better jobs and promotions.\nIn this sense, paragraph (a)(2) “enumerates various factual\nmeans of committing a single element”—imposing employ-\nment policies that have disparate impacts on older workers.\nSee Mathis v. United States, 136 S. Ct. 2243, 2249 (2016) (dis-\ncussing various ways to write an “alternatively phrased\nlaw”).\n In Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA, Inc.,\n139 S. Ct. —, — (2019), the Supreme Court rejected a remark-\nably similar argument that attempted to use an “otherwise”\nphrase to limit what came before. Much like the majority here,\nthe patentee argued that “otherwise available to the public”\nin the Patent Act’s “on sale” bar meant that the preceding lan-\nguage also required public availability after a sale. The pa-\ntentee “places too much weight on [the] catchall phrase. Like\nother such phrases, ‘otherwise available to the public’ cap-\ntures material that does not fit neatly into the statute’s enu-\nmerated categories but is nevertheless meant to be covered.”\nSee also Republic of Iraq v. Beaty, 556 U.S. 848, 860 (2009) (ex-\nplaining that “the whole value of a generally phrased residual\nclause, like the one used in the second proviso, is that it serves\nas a catchall for matters not specifically contemplated—\nknown unknowns”). If “otherwise adversely affect his status\n\n26 No. 17-1206\n\nas an employee” does not necessarily limit the entire disparate-\nimpact phrase—if it is instead a catch-all phrase for known\nunknowns, as the Supreme Court explained in Texas Dep’t of\nHousing & Community Affairs v. Inclusive Communities Project,\nInc., 135 S. Ct. 2507, 2519 (2015) (linking “otherwise” phrases\nin ADEA, Title VII, and Fair Housing Act as establishing tex-\ntual foundations for disparate-impact protection)—the major-\nity’s textual analysis collapses.\n Third, even if “status as an employee” must be affected to\nstate a disparate-impact claim under (a)(2), the majority’s con-\nclusion also depends entirely on the unlikely notion that “sta-\ntus as an employee” is not “adversely affected” when an em-\nployer denies an individual the opportunity to become an em-\nployee in the first place. Refusing to hire an individual has the\nmost dramatic possible adverse effect on that individual’s\n“status as an employee.” Reading “status as an employee”\nbroadly, to include whether the individual is an employee or\nnot, is consistent with the actual words Congress used in re-\npeatedly referring to “individuals,” and with ordinary usage.\nCourts often speak of “denying status” of one sort or another.2\n\n\n 2Judge Martin’s dissent in Villarreal v. R.J. Reynolds Tobacco Company\ncollected several examples. 839 F.3d 958, 983 & n.2 (11th Cir. 2016) (en\nbanc), citing Howard Delivery Serv., Inc. v. Zurich Am. Ins. Co., 547 U.S. 651,\n656 (2006) (bankruptcy claimant could be “denied priority status”);\nChandris, Inc. v. Latsis, 515 U.S. 347, 372 (1995) (maritime worker could “be\ndenied seaman status”); McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479,\n496 (1991) (person trying to do seasonal work could be “denied SAW\n[special agricultural worker] status”); Clark v. Gabriel, 393 U.S. 256, 264\n(1968) (draft registrant could be “denied CO [conscientious objector]\nstatus”).\n We have also used this “denial of status” phrasing in a variety of\ncontexts. Bell v. Kay, 847 F.3d 866, 868 (7th Cir. 2017) (plaintiff objected to\n\nNo. 17-1206 27\n\nAnd the word “status” is not necessarily limited to status as\nof any particular moment. 1 U.S.C. § 1 (Dictionary Act provid-\ning that “unless the context indicates otherwise … words used\nin the present tense include the future as well as the present”).\n In short, the effect of the phrase “otherwise adversely af-\nfects his status as an employee” on job applicants is at worst\nambiguous for applicants like Kleber. The majority loads onto\nthat phrase more weight than it can bear. If Congress really\nmeant to exclude job applicants from disparate-impact pro-\ntection, the phrase “status as an employee” was a remarkably\nobscure and even obtuse way to express that meaning.\n D. Comparing § 623(a)(2) to Other ADEA Provisions\n Congress no doubt could have written § 623(a)(2) to make\nclearer its protection of outside job applicants, as it did in\nother ADEA provisions and other statutes. As explained by\nJustice Thomas for a unanimous Supreme Court in Robinson\nv. Shell Oil, however, that observation does not prove that\nCongress chose not to provide that protection. 519 U.S. at 341–\n\n“the order denying him pauper status”); McMahon v. LVNV Funding, LLC,\n807 F.3d 872, 875 (7th Cir. 2015) (observing that “the denial of class status\nis likely to be fatal to this litigation”); Moranski v. General Motors Corp., 433\nF.3d 537, 538 (7th Cir. 2005) (analyzing “denial of Affinity Group status”\naffecting a proposed group of employees); Hileman v. Maze, 367 F.3d 694,\n697 (7th Cir. 2004) (plaintiff alleged injury resulting “from the denial of\nher status” as candidate in local election); Resser v. Comm’r of Internal\nRevenue, 74 F.3d 1528, 1532 (7th Cir. 1996) (appealing Tax Court’s “denial\nof ‘innocent spouse’ status”); Williams v. Katz, 23 F.3d 190, 191 (7th Cir.\n1994) (spurned intervenor permanently “denied the status of a party” in\nlitigation); Lister v. Hoover, 655 F.2d 123, 124–25 (7th Cir. 1981) (plaintiffs\n“who were denied resident status and the accompanying reduced tuition”\nat a state university). In all of these cases, “status” was surely “adversely\naffected,” to use the phrasing of § 623(a)(2).\n\n28 No. 17-1206\n\n42 (language in other statutes “proves only that Congress can\nuse the unqualified term ‘employees’ to refer only to current\nemployees, not that it did so in this particular statute”).\n The first statutory text that provides guidance on how to\nread § 623(a)(2) is the statute’s stated purpose, which the ma-\njority largely disregards. Congress told us it set out to address\n“the incidence of unemployment, especially long-term unem-\nployment” among older workers. 29 U.S.C. § 621(a)(3). In the\nstatute, Congress said it was “especially” concerned about the\ndifficulty older workers faced in trying to “regain employ-\nment when displaced from jobs”—in other words, when older\nworkers were applying for jobs. See § 621(a)(1). Unemployment\nends when a person who is not currently employed applies\nsuccessfully for a job. As the ADEA itself provides, “it is …\nthe purpose of this chapter to promote employment of older\npersons based on their ability rather than age.” § 621(b).\n The majority, however, focuses on comparing § 623(a)(2)\nto several neighboring provisions in the ADEA that distin-\nguish clearly between current employees and job applicants.\nThe majority, to support its improbable result, reads too much\ninto the differences in wording.\n The unlawful employment practices section of the ADEA\nbegins with three subsections prohibiting age discrimination\nin employment by three different kinds of actors—private and\npublic employers, employment agencies, and labor organiza-\ntions. 29 U.S.C. § 623(a)–(c); see also § 630(b) (defining “em-\nployer”). Subsections (a), (b), and (c) are all worded slightly\ndifferently. In the following subsection (d), the ADEA prohib-\nits retaliation by any of these private-sector actors. In another\nsection, the ADEA provides for a different and even broader\n\nNo. 17-1206 29\n\npolicy prohibiting age discrimination in federal hiring and\nemployment. § 633a(a).\n The majority compares three of those ADEA provisions:\nthe labor union provision in § 623(c)(2), the retaliation provi-\nsion in § 623(d), and the federal government provision in\n§ 633a(a). All three of these provisions use the phrase “appli-\ncant for employment.” The majority invokes the common pre-\nsumption that a difference in statutory wording signals a dif-\nference in Congressional intent and meaning. That presump-\ntion, however, is only a tool, not an inflexible rule. We need\nsome basis beyond simple word-matching to believe that\nthese particular differences in language were intended to dis-\ntinguish the ADEA’s disparate-impact provision from these\nother provisions to produce such an improbable result as ex-\ncluding older job applicants from disparate-impact protec-\ntion.\n Instructive here is the Supreme Court’s approach to inter-\npreting the term “employee” in Title VII’s anti-retaliation pro-\nvision. Robinson v. Shell Oil, 519 U.S. at 339–41. Title VII makes\nit unlawful “for an employer to discriminate against any of\nhis employees or applicants for employment” who have ei-\nther availed themselves of Title VII’s protections or assisted\nothers in doing so. 42 U.S.C. § 2000e-3(a). The issue in Robin-\nson was whether this language prohibits retaliation against\nformer employees. As in this case, the Court had to interpret\na provision that was not as clear as other related provisions.\nThe fact that “Congress also could have used the phrase ‘cur-\nrent employees,’” or “expressly included the phrase ‘former\nemployees’ does not aid our inquiry.” 519 U.S. at 341. That\n“the term ‘employees’ may have a plain meaning in the con-\ntext of a particular section,” or that “other statutes have been\n\n30 No. 17-1206\n\nmore specific in their coverage of ‘employees’ and ‘former\nemployees,’ … proves only that Congress can use the unqual-\nified term ‘employees’ to refer only to current employees”—\n“not that the term has the same meaning in all other sections\nand in all other contexts.” Id. at 341–43.\n Adopting an approach that fits here, the Court wrote: “Be-\ncause the term ‘applicants’ in § 704(a) is not synonymous with\nthe phrase ‘future employees,’ there is no basis for engaging\nin the further (and questionable) negative inference that in-\nclusion of the term ‘applicants’ demonstrations intentional ex-\nclusion of former employees.” Id. at 344–45. In fact, the Court\nreasoned, to hold that the term “employee” does not include\nformer employees “would effectively vitiate much of the pro-\ntection afforded by § 704(a),” and “undermine the effective-\nness of Title VII by allowing the threat of postemployment re-\ntaliation to deter victims of discrimination from complaining\nto the EEOC, and would provide a perverse incentive for em-\nployers to fire employees who might bring Title VII claims.”\nId. at 345–46.\n In short, the Court concluded, an “inclusive interpretation\nof ‘employees’ in § 704(a) that is already suggested by the\nbroader context of Title VII”—and that is not “destructive of\n[the] purpose” of the statute by allowing an employer to es-\ncape liability for “an entire class of acts”—“carry persuasive\nforce given their coherence and their consistency with a pri-\nmary purpose” of the statutory provision. Id. at 346. We\nshould use the same approach here.\n Instead, the majority’s reading of § 623(a)(2) creates a\nstrange incongruity. All actors who regularly recruit job ap-\nplicants—employment agencies, labor unions, and federal\n\nNo. 17-1206 31\n\nagencies—are prohibited from engaging in age discrimina-\ntion, including disparate-impact discrimination. See 29 U.S.C.\n§§ 623(b), 623(c)(2), & 633a(a). Yet the majority concludes that\nCongress chose to allow private employers to use practices\nwith disparate impacts on older job applicants. This is a truly\nodd reading, especially in light of the statute’s stated purpose\nand the rest of § 623, where Congress grouped employers,\nemployment agencies, and labor organizations together with\nrespect to retaliation, job advertisements, and the use of bona\nfide occupational qualifications and reasonable factors other\nthan age. See Pub. L. 90-202, § 4(d)–(f), 81 Stat. 603 (1967).\n Half a century after the ADEA was enacted, we can see\nthat Congress could have been more precise in phrasing the\ndisputed provision. The majority errs, though, in concluding\nboldly that the text “leaves room for only one interpretation.”\nAnte at 8. The majority naively puts on blinders, considers\nonly the language of the ADEA in isolation, and, as we’ll see,\nignores precedent, legislative history, and practical conse-\nquences to offer one cramped reading for the scope of\n§ 623(a). The text alone does not provide sufficient grounds\nfor choosing between two readings of one of the statute’s most\nimportant protections, one that protects outside job appli-\ncants, and one that excludes them.\nII. Griggs, Title VII, and the ADEA\n A. Griggs and “Job-Seekers”\n The most reliable basis for choosing between these two\nreadings of the statutory text is to follow the Supreme Court’s\ninterpretation of identical language in Title VII of the Civil\nRights Act of 1964 in Griggs v. Duke Power, 401 U.S. at 430–31.\n\n32 No. 17-1206\n\nIn Griggs, the Court held that the language of Title VII as en-\nacted in 1964 included disparate-impact protection for both\njob-seekers and current employees seeking promotions. That\nauthoritative construction of identical language should con-\ntrol here. See Smith, 544 U.S. at 233–38 (applying Griggs to\n§ 623(a)(2) in ADEA); Texas Dep’t of Housing and Community\nAffairs, 135 S. Ct. at 2518 (applying analysis of identical statu-\ntory language in Griggs (Title VII) and Smith (ADEA) to inter-\npret parallel disparate-impact provision in Fair Housing Act);\nsee also, e.g., Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 65\n(1987) (field preemption applies to ERISA because Congress\ncopied ERISA’s jurisdictional language from Labor Manage-\nment Relations Act, to which field preemption applied).\n 1. Parallel Statutory Texts\n The ADEA’s § 623(a)(2) tracks word-for-word the parallel\nprovision for race, sex, religious, and national origin discrim-\nination in Title VII of the Civil Rights Act of 1964, as it was\nenacted in 1964, as it stood when the ADEA was enacted, and\nas it stood when Griggs was decided. Here’s the original lan-\nguage of Title VII’s parallel disparate-treatment and dispar-\nate-impact provisions:\n (a) It shall be an unlawful employment practice\n for an employer—\n (1) to fail or refuse to hire or to discharge any\n individual, or otherwise to discriminate against\n any individual with respect to his compensa-\n tion, terms, conditions, or privileges of employ-\n ment, because of such individual’s race, color,\n religion, sex, or national origin; or\n\nNo. 17-1206 33\n\n (2) to limit, segregate, or classify his employ-\n ees in any way which would deprive or tend to\n deprive any individual of employment oppor-\n tunities or otherwise adversely affect his status\n as an employee, because of such individual’s\n race, color, religion, sex, or national origin.\n78 Stat. 255, quoted in Griggs, 401 U.S. at 426 n.1. The only dif-\nference between Title VII’s § 703(a)(2) and the ADEA’s\n§ 623(a)(2) is the substitution of “age” for “race, color, reli-\ngion, sex, or national origin.” That’s why Smith v. City of Jack-\nson described Griggs as “a precedent of compelling im-\nportance” in interpreting the ADEA’s disparate-impact lan-\nguage. 544 U.S. at 234.\n In Griggs, the Supreme Court unanimously held that Title\nVII “proscribes not only overt discrimination but also prac-\ntices that are fair in form, but discriminatory in operation”—\ne.g., practices with disparate impacts against protected\ngroups. Griggs, 401 U.S. at 431. “The touchstone is business\nnecessity,” the Court explained, as “the very purpose of title\nVII is to promote hiring on the basis of job qualifications, ra-\nther than on the basis of race or color.” Id. at 431, 434, quoting\n110 Cong. Rec. 7247 (1964).\n The majority contends Griggs offers no guidance here be-\ncause “nothing about the case, brought as it was by employees\nof Duke Power and not outside applicants, required the Court\nto answer th[e] question” whether Title VII’s disparate impact\nprovision extended to job applicants. Ante at 10. The majority\ntreats the Supreme Court’s references in Griggs to hiring as\ncareless slips of the pen. As a general rule, that is not how\nlower federal courts should read Supreme Court opinions.\n\n34 No. 17-1206\n\nMore specifically, a closer look at Griggs shows that the ma-\njority’s approach is 180 degrees off course.\n 2. The Facts of Griggs\n Beyond reasonable dispute, the Griggs holding included\njob applicants. The majority ignores the fact that Griggs was a\nclass action. The district court had certified a class “defined as\nthose Negroes presently employed, and who subsequently\nmay be employed, at [Duke Power’s plant] and all Negroes\nwho may hereafter seek employment”—i.e., job applicants. Griggs\nv. Duke Power Co., 292 F. Supp. 243, 244 (M.D.N.C. 1968) (em-\nphasis added). After remand from the Supreme Court, the\ndistrict court enjoined Duke Power from, among other prac-\ntices, “administering any personnel or aptitude tests or re-\nquiring any formal educational background … as a condition\nof consideration for employment or promotion or transfer.”\nGriggs v. Duke Power Co., 1972 WL 215 at 1 (Sept. 25, 1972)\n(emphasis added). Of course the Supreme Court’s holding ap-\nplied to job applicants.\n And that was for good reason. The Griggs class challenged\nemployment practices that had the effect of segregating the\nworkforce. Duke Power classified its employees into two\nmain groups: (1) the “inside departments,” historically staffed\nby white employees, with higher pay and responsible for\ntasks such as operating the boilers and maintaining the plant\nequipment; and (2) the Labor Department, the lowest-wage\nunit, “responsible generally for the janitorial services” and\nhistorically staffed by black employees. Griggs v. Duke Power\nCo., 420 F.2d 1225, 1245–46 (4th Cir. 1970) (Sobeloff, J., dissent-\ning); id. at 1228–29 (majority). Before the civil rights move-\nment, white and black employees (within their respective seg-\nregated departments) had been hired and promoted with\n\nNo. 17-1206 35\n\nmiddle school levels of education or less, and certainly with-\nout high school diplomas; there was no indication that any\nparticular level of formal education was needed to work at the\npower plant. Id. at 1245–46 (dissent).\n As the civil rights movement picked up steam, Duke\nPower “initiated a new policy as to hiring and advancement,”\nrequiring “a high school education or its equivalent … for all\nnew employees, except as to those in the Labor Department.”\nId. at 1228–29 (majority) (emphasis added). On the day Title\nVII took effect, Duke Power “added a further requirement for\nnew employees”—the passage of “two professionally prepared\naptitude tests, as well as to have a high school diploma.”\nGriggs, 401 U.S. at 428 (emphasis added). All existing employ-\nees (white and black) were grandfathered in. Only new Labor\nDepartment employees could still be hired without having to\nmeet the requirements. Griggs, 420 F.2d at 1245–46 (dissent).3\n Notwithstanding the new rule, if an “inside” position\nopened, the grandfathered white employees from “inside de-\npartments” without high school diplomas faced “no re-\nstriction on transfer from any of the inside departments to the\nother two inside departments.” Id. at 1246 (Sobeloff, J., dis-\nsenting). It was “only the outsiders” (e.g., entirely new appli-\ncants or black Labor Department employees) who “must meet\nthe questioned criteria.” Id. This internal employee classifica-\n\n\n\n 3 To be precise, the coal handling department was the one unit staffed\n\nby white employees that had been subject to the high school diploma re-\nquirement for transfer. The aptitude tests were offered at the coal employ-\nees’ request as “a means of escaping from that department” and were then\nmade available to employees in the Labor Department. Griggs, 420 F.2d at\n1229; Griggs, 401 U.S. at 427–28.\n\n36 No. 17-1206\n\ntion policy therefore put the black Labor Department employ-\nees in the same position as outside applicants. Consequently,\n“four years after the passage of Title VII, [the Duke power\nplant] look[ed] substantially like it did before 1965. The Labor\nDepartment [wa]s all black; the rest [wa]s virtually lily-\nwhite.” Id. at 1247.\n Thus, it made no legal difference that the named class rep-\nresentatives were existing Labor Department employees chal-\nlenging their restricted ability to transfer (read: apply) to the\nhigher-paying units staffed with white employees. The\nCourt’s legal analysis was not limited to intra-company trans-\nfers: all new applicants and the Labor Department plaintiffs\nhad to meet Duke’s educational and testing standards to ap-\nply for non-janitorial open positions. Griggs, 401 U.S. at 425–\n28.\n 3. The Supreme Court’s Analysis\n Thus it was neither accidental nor surprising that the Su-\npreme Court framed the issue as whether an employer could\nrequire a high school education or passing a general intelli-\ngence test as “a condition of employment in or transfer to\njobs,” id. at 426, signaling that the disparate-impact provision\napplied to both current employees and outside job applicants.\nThe opinion also referred to the “hiring and assigning of em-\nployees” and to “tests or criteria for employment or promo-\ntion.” Id. at 427, 431 (emphasis added). Even more clearly,\nwriting for the unanimous Court, Chief Justice Burger ex-\nplained:\n Congress has now provided that tests or cri-\n teria for employment or promotion may not\n provide equality of opportunity merely in the\n\nNo. 17-1206 37\n\n sense of the fabled offer of milk to the stork and\n the fox. On the contrary, Congress has now re-\n quired that the posture and condition of the job-\n seeker be taken into account. It has—to resort\n again to the fable—provided that the vessel in\n which the milk is proffered be one all seekers can\n use. The Act proscribes not only overt discrimi-\n nation but also practices that are fair in form,\n but discriminatory in operation.\nId. at 431 (emphasis added). The Court framed the issue and\nits holding as applying to the use of aptitude and personality\ntests for both hiring and promotion decisions because those\nwere the facts at issue. A decision that applied only to intra-\nDuke transfers, as the majority reads it now, would have\nmissed the whole point of plaintiffs’ case.\n Everyone understood that Griggs was the case testing dis-\nparate-impact coverage nationally. Given the class definition\nthat included future job applicants, all judicial officers, par-\nties, and amici understood that the stakes included protection\nfor job applicants.4 The amicus brief for the United States ar-\ngued that the Court should hold that Title VII did not permit\n\n\n 4 Judge Sobeloff’s dissent in the Fourth Circuit was prescient: “The\ndecision we make today is likely to be as pervasive in its effect as any we\nhave been called upon to make in recent years.” Griggs, 420 F.2d at 1237.\nHe continued: “The statute is unambiguous” in prohibiting “‘objective’ or\n‘neutral’ standards that favor whites but do not serve business needs.” Id.\nat 1238. After all, “[n]o one can doubt that [a] requirement would be inva-\nlid” if an employer issued the “neutral” criteria that “all applicants for em-\nployment shall have attended a particular type of school,” but “the speci-\nfied schools were only open to whites” and “taught nothing of particular\nsignificance to the employer’s needs.” Id. (emphasis added).\n\n38 No. 17-1206\n\n“an employer to require completion of high school or passage\nof certain general intelligence tests as a condition of eligibility\nfor employment in, or transfer to, jobs formerly reserved only\nfor whites” when these new requirements “disqualif[ied] Ne-\ngroes at a substantially higher rate than whites” and were not\n“shown to be necessary for successful performance of the\njobs.” Griggs v. Duke Power Co., Brief for the United States as\nAmicus Curiae at 2, 1970 WL 122637 (Sept. 4, 1970) (emphasis\nadded). On the other side, the Chamber of Commerce cau-\ntioned that the “subject matter of the instant case—the utili-\nzation of educational or test requirements to select employees\nfor hiring or promotion—is a matter of significant national\nconcern.” Brief Amicus Curiae on Behalf of the Chamber of\nCommerce of the United States of America at 1–2, 1970 WL\n122547 (Oct. 14, 1970) (emphasis added).5\n Against this background, there can be no serious doubt\nthat Griggs recognized disparate-impact protection for both\ncurrent employees and job applicants. Even the Court’s take-\naway instructions for employers also addressed hiring: “Con-\ngress has now required that the posture and condition of the\njob-seeker be taken into account. … If an employment practice\nwhich operates to exclude Negroes cannot be shown to be re-\nlated to job performance, the practice is prohibited.” 401 U.S.\nat 431. And this was so despite the fact that the Court was\nconfronted with the same textual differences in Title VII that\n\n\n 5The Chamber of Commerce attorney also talked about hiring in oral\nargument: “We’re talking about objective means of choosing which em-\nployee should fit in to a particular job or which employee should be hired in\nthe first place….” Transcript of Oral Argument, Griggs, 401 U.S. 424 (No.\n70-124), available at http://www.oyez.org/cases/1970-1979/1970/1970_124\n(emphasis added).\n\nNo. 17-1206 39\n\nwe face in the ADEA today: the explicit reference to “hiring”\nin paragraph (a)(1), its omission in (a)(2), and the phrase “or\notherwise adversely affect his status as an employee” in (a)(2).\n The majority in this case therefore has its facts exactly\nbackwards in asserting that “[n]owhere in Griggs did the\nCourt state that its holding extended to job applicants.” Ante\nat 9. One cannot reasonably read hiring and job applicants out\nof the opinion. After Griggs, no competent lawyer would have\ncounseled employers that they were prohibited from basing\nonly intra-company transfers and promotions on “neutral”\nbut non-job-related tests, but remained free to use the same\ntests when hiring new employees.\n B. Griggs’ Aftermath and Title VII’s 1972 Amendment\n 1. Later Judicial Treatment of Griggs\n Unlike the majority here, courts, employers, and scholars\ntook Griggs at its word that its holding was broad and not lim-\nited to intra-company transfers and promotions. Within two\nyears, a “plethora of prominent and forceful federal court rul-\nings—from district court judges to the Supreme Court but\nperhaps most pointedly from the courts of appeal—\nhad already won … sweepingly wide proactive employer\ncompliance with Title VII’s strictures.” David J. Garrow, To-\nward a Definitive History of Griggs v. Duke Power Co., 67 Vand.\nL. Rev. 197, 230 (2014).\n Later Supreme Court decisions continued to read Griggs\nas governing hiring practices. E.g., Albemarle Paper Co. v.\nMoody, 422 U.S. 405, 427 (1975) (“Like the employer in Griggs,”\nthe paper company defendant required “[a]pplicants for hire”\nto achieve certain test scores); id. at 425 (after Griggs, the “com-\nplaining party or class” must show “that the tests in question\n\n40 No. 17-1206\n\nselect applicants for hire or promotion in a racial pattern”) (em-\nphasis added); Dothard v. Rawlinson, 433 U.S. 321, 329 (1977)\n(explaining that Griggs and Albemarle Paper “make clear that\nto establish a prima facie case of discrimination, a plaintiff\nneed only show that the facially neutral standards in question\nselect applicants for hire in a significantly discriminatory pat-\ntern”); Connecticut v. Teal, 457 U.S. 440, 446 (1982) (although\nrequirements in Griggs “applied equally to white and black\nemployees and applicants, they barred employment opportu-\nnities to a disproportionate number of blacks” and were\ntherefore invalid); Texas Dep’t of Housing, 135 S. Ct. at 2517 (ex-\nplaining that Griggs “held that ‘business necessity’ constitutes\na defense to disparate-impact claims” and did “not prohibit\nhiring criteria with a ‘manifest relationship’ to job perfor-\nmance”) (emphasis added), quoting Griggs, 401 U.S. at 432. In\nshort, lower federal courts have no business dismissing as\ncareless dicta the Griggs references to job applicants.\n 2. Title VII’s 1972 Revision\n None of the Court’s later references to Griggs’ application\nto hiring even mention, let alone rely on, the fact that, as part\nof a major 1972 revision to Title VII, Congress also engaged in\nsome statutory housekeeping and added an express reference\nto “applicants for employment” to the disparate-impact pro-\nvision, § 2000e-2(a)(2). Pub. L. No. 92-261, § 8(a), 86 Stat. 109\n(1972). But the majority, apparently without engaging with\nthe facts of the Griggs litigation or the legislation, opines that\nthe 1972 Amendment actually “reflected Congress’s swift and\nclear desire to extend Title VII’s disparate impact protection to\njob applicants.” Ante at 10 (emphasis added). The facts show\nagain that the majority has it exactly wrong.\n\nNo. 17-1206 41\n\n The year after Griggs, Congress enacted the Equal Employ-\nment Opportunity Act of 1972. It was a major bill designed to\nexpand the powers of the EEOC and the scope of Title VII. But\nnot every provision was important or controversial. The Act\nincluded this minor amendment not to change the law but to\ncodify existing law as decided in Griggs.\n The 1964 Act had confined the EEOC’s role to “investiga-\ntion, persuasion, and conciliation,” and unlike other major\nagencies, it “lacked the authority to issue cease-and-desist or-\nders or to initiate legal action in the federal courts.” Herbert\nHill, The Equal Employment Opportunity Acts of 1964 and 1972,\n2 Berkeley J. Emp. & Labor L. 1, 7–8 (1977). The Department\nof Justice, which did have authority to sue to enjoin employ-\nment discrimination, filed “few suits” and “obtain[ed] only\nminimal benefits for the complainants.” Id. at 29. By the end\nof 1971, the year Griggs was decided, the EEOC was already\n“handicapped by a backlog of more than 23,000 unresolved\ncomplaints of discrimination” and was subject to withering\ncriticism. Id. at 31–33. There was concern that Title VII’s re-\nsults had been “disappointing” and “in most respects, proved\nto be a cruel joke to those complainants who have in good\nfaith turned toward the Federal Government [which] cannot\ncompel compliance”; thus there was general resolve that\n“promises of equal job opportunity made in 1964 must be\nmade realities in 1971.” Id. at 47–48, quoting S. Rep. No. 415,\n92nd Cong., 1st Sess. 8 (1971).\n The EEOC’s limited powers were noted early. Efforts to\nstrengthen it began almost immediately after the 1964 enact-\nment. Id. at 32–33. It was clear, however, “that employers were\nvigorously opposed to any measure designed to increase the\neffectiveness of the law,” and “[b]usiness interests conducted\n\n42 No. 17-1206\n\nan intensive lobbying campaign against the various proposals\nto extend Title VII coverage, provide enforcement power to\nthe EEOC, or strengthen the antidiscrimination statute in any\nway.” Id. at 33.\n This years-long battle culminated in the 1972 Act. The\nAct’s major provisions: authorized the EEOC “to initiate civil\nsuits in federal district courts”; retained the then-controver-\nsial private right of action; created a new Office of General\nCounsel; expanded coverage to a larger number of private\nemployers, most state and local government employees, and\nfederal employees; and deleted the exemption for educational\ninstitutions. Id. at 50–58; Conf. Rep. on H.R. 1746, reprinted in\n118 Cong. Rec. 7166, 7166–69 (March 6, 1972).\n 3. Clarifying the Title VII Disparate-Impact Provision\n Along with these major changes, § 8(a) of the 1972 Act\namended Title VII’s disparate-impact language in § 2000e-\n2(a)(2) to add the reference to “applicants for employment.”\nPub. L. No. 92-261, § 8(a), 86 Stat. 109 (1972). The majority ar-\ngues that, in light of this addition, concluding that Griggs had\nalready covered job applicants “renders the 1972 amendment\na meaningless act of the 92nd Congress.” Ante at 10. Without\nconsidering the facts of the 1972 legislation as a whole, the\nmajority has leaped to the wrong conclusion. It has over-\nlooked the long-recognized difference between substantive\nand clarifying statutory amendments.\n First, Congress was well aware of Griggs. The Court’s\nopinion was mentioned several times in the lengthy legisla-\ntive history—always favorably and typically described in\nterms tracking the discussion of Griggs above. One House re-\nport quoted Griggs to emphasize the importance of disparate\n\nNo. 17-1206 43\n\nimpact protections for “the job seeker” before noting that the\n“provisions of the bill are fully in accord with the decision of\nthe Court.” H.R. Rep. 92-899 at 21–22, reprinted in 118 Cong.\nRec. 2156–57 (March 2, 1972), quoting Griggs, 401 U.S. at 431.\nAnother House report described Griggs as a case “where the\nCourt held that the use of employment tests as determinants\nof an applicant’s job qualification … was in violation of Title\nVII if such tests work a discriminatory effect in hiring pat-\nterns” without a “showing of an overriding business neces-\nsity.” H.R. Rep. 92-238 at 8, reprinted at 1972 U.S.C.C.A.N. at\n2144 (emphasis added).\n Amid the major policy changes in the 1972 Act, the addi-\ntion of “applicants for employment” to the disparate-impact\nprovision was a minor change, mentioned only briefly as in-\ncorporating existing law. The conference committee report to\nthe Senate said that this addition was “merely declaratory of\npresent laws.” 118 Cong. Rec. at 7169. Congress noted its in-\ntention to “make it clear that discrimination against appli-\ncants for employment … is an unlawful employment prac-\ntice” under both clauses of Title VII’s § 2000e-2(a). 118 Cong.\nRec. at 7169. This conference committee report to the Senate\nwas the final report on § 8(a) of H.R. 1746, which added “or\napplicants for employment” to the provision, see 86 Stat. 103,\n109 (approved March 24, 1972), essentially repeating an ear-\nlier Senate report that said this clarifying amendment “would\nmerely be declaratory of present law.” S. Rep. 92-415 at 43\n(Oct. 28, 1971). Beyond these brief mentions, the addition of\n“applicants for employment” appeared not worthy of expla-\nnation at all.6\n\n 6 The House version of the conference committee report contained the\n\ntext of § 8(a) but provided no explanation. See H.R. Rep. 92-899 at 8, 19–\n\n44 No. 17-1206\n\n Consider these sparse comments in context. The recogni-\ntion of disparate-impact liability in Griggs had been contro-\nversial and hard-fought between civil rights advocates and\nemployers. If Congress thought in 1972 that it was changing\nthe law to extend disparate-impact protection to reach job ap-\nplicants, that change surely would have been significant\nenough to mention in the detailed committee reports.\n And beyond Congress’s silence about such a supposedly\nmajor change in the legislation, it beggars belief to think that\nemployer groups would have let such an amendment pass\nwithout mention.7 If, as the majority claims here, Griggs had\nactually left open whether job applicants were covered by Ti-\ntle VII’s disparate impact provision, the Chamber and other\nemployer groups would not have been silent. But they had\nalready fought that battle, and they knew they had lost.\n The majority is right that courts often assume that statu-\ntory amendments are intended to change the law. Ante at 11,\nciting, e.g., United States v. Quality Stores, Inc., 572 U.S. 141, 148\n\n20, reprinted in 92nd Cong., 118 Cong. Rec. 6643, 6645, 6648 (March 2,\n1972). An earlier House report mentioned § 8(a) only in passing in the sec-\ntion-by-section analysis. See id. at 20–22, 30, reprinted in 1972\nU.S.C.C.A.N. at 2155–57, 2165.\n 7\n Just months earlier, the Chamber of Commerce’s attorney had\nargued to the Griggs Court:\n This case is one which is a vital concern to employers, both small and\n large throughout the United States. In today’s labor market, there are\n often many applicants for the job, just as there are many employees\n who desire to be promoted [and] the employer must make a choice …\n often a difficult one.\nTranscript of Oral Argument, Griggs, 401 U.S. 424 (No. 70-124), available\nat http://www.oyez.org/cases/1970-1979/1970/1970_124.\n\nNo. 17-1206 45\n\n(2014). But the majority overlooks the long-recognized reality\nthat many statutory amendments are intended only to clarify\nexisting law, not to change it. E.g., Singer, 1A Sutherland Stat-\nutes and Statutory Construction § 22:34 (7th ed. 2010).\n The distinction is relevant most often in disputes over\nwhether to give an amendment retroactive effect. Substantive\namendments that change the law are rarely given retroactive\neffect, while “clarifying” amendments are routinely given\nsuch effect. See, e.g., United States ex rel. Garbe v. Kmart Corp.,\n824 F.3d 632, 642 (7th Cir. 2016) (collecting cases). In this case,\nthe distinction has a dramatic effect on what the 1972 amend-\nment tells us about the scope of Griggs and the proper inter-\npretation of the original Title VII language, which is identical\nto the ADEA language we interpret here.\n How to tell when an amendment is substantive and when\nonly clarifying? We explained in Garbe:\n In deciding whether an amendment is clarifying\n rather than substantive, we consider\n “[1] whether the enacting body declared that it\n was clarifying a prior enactment; [2] whether a\n conflict or ambiguity existed prior to the\n amendment; and [3] whether the amendment is\n consistent with a reasonable interpretation of\n the prior enactment and its legislative history.”\n824 F.3d at 642, quoting Middleton v. City of Chicago, 578 F.3d\n655, 663–64 (7th Cir. 2009).\n The evidence on all three of these factors shows that the\n1972 amendment to the Title VII disparate-impact language\nwas clarifying, not substantive. As shown above: (1) The en-\nacting body announced that the new language only declared\n\n46 No. 17-1206\n\ncurrent law and was consistent with Griggs. (2) Before the\n1972 amendment, disparate-impact coverage for outside job\napplicants had been established in Griggs; that coverage was\ncertainly no worse than ambiguous. (3) The 1972 amendment\nwas “consistent with a reasonable interpretation of the prior\nenactment and its legislative history.” That’s exactly how the\nSupreme Court had read the language a year earlier in Griggs\nand how the decision was described in the 1972 amendment’s\nlegislative history.\n In short, the facts refute the majority’s unsupported claim\nthat the 1972 amendment showed Congress’s “swift and clear\ndesire to extend Title VII’s disparate impact protection to job\napplicants.” Ante at 10. Without evidence that Congress was\n“extending” Title VII, there is no foundation here for the ma-\njority’s further inference that Congress in 1972 was silently\nendorsing a narrower interpretation of identical language in\nthe ADEA. The ADEA was never mentioned in the larger 1972\nAct itself or in the conference report describing it. The 1972\nAct amended only provisions of the 1964 Act and provides no\nsupport for the majority’s narrower interpretation of the\nADEA.\n C. Griggs and Smith v. City of Jackson\n In a further effort to diminish Griggs, the majority offers\nwhat it calls a “commonsense observation.” If it was so clear\nthat Griggs’ Title VII analysis should apply to the ADEA’s\nidentical disparate-impact language, then it is “very difficult\nto explain why it took the Supreme Court 34 years to resolve\nwhether anyone—employee or applicant—could sue on a dis-\nparate impact theory under the ADEA, as it did in Smith v.\nCity of Jackson, 544 U.S. 228 (2005).” Ante at 8–9. Yet again, the\n\nNo. 17-1206 47\n\nmajority ignores the facts. It’s easy to explain. The Court’s\nopinion in Smith did so.\n After emphasizing Title VII and the ADEA’s “identical\ntext” and “striking” contextual parallels, Smith noted some-\nwhat bemusedly: “Indeed, for over two decades after our de-\ncision in Griggs, the Courts of Appeals uniformly interpreted\nthe ADEA as authorizing recovery on a ‘disparate-impact’\ntheory in appropriate cases.” 544 U.S. at 233–37 & n.5. With-\nout a circuit split over identical statutory language, there had\nbeen no need for the Supreme Court to step in.\n In Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993), how-\never, the Court observed that “we have never decided\nwhether a disparate impact theory of liability is available un-\nder the ADEA” and “we need not do so here.” Id. at 610. A\nconcurring opinion in Hazen Paper emphasized that “nothing\nin the Court’s opinion should be read as incorporating in the\nADEA context the so-called ‘disparate impact’ theory of Title\nVII of the Civil Rights Act of 1964” as “there are substantial\narguments that it is improper to carry over disparate impact\nanalysis from Title VII to the ADEA.” Id. at 618. Those com-\nments finally led to a circuit split on the question.8\n\n\n\n\n 8 A year after Hazen Paper, we held that the ADEA did not permit any\ndisparate-impact liability. EEOC v. Francis W. Parker School, 41 F.3d 1073,\n1075 (7th Cir. 1994). In rejecting the reasoning in Griggs, we mistakenly\nemphasized the textual difference between Title VII and the ADEA, see 41\nF.3d at 1077–78, overlooking the fact that Griggs, decided in 1971, consid-\nered exactly the same disparate-impact language that is in the ADEA. In-\nexplicably, the majority now repeats the same error: “We underscored this\nexact difference 14 years ago in our opinion in Francis W. Parker, and we\ndo so again today”—“The ‘mirror’ provision in the ADEA omits from its\n\n48 No. 17-1206\n\n The Supreme Court then granted review in Smith to re-\nsolve the circuit split.9 Smith endorsed the view that had been\nuniform before Hazen Paper: the ADEA recognizes disparate-\nimpact claims. See 544 U.S. at 237 n.8, 240.\n In fact, Smith cited with approval cases allowing disparate-\nimpact ADEA claims by job applicants and others who did\nnot have, according to the majority here, “status as an em-\nployee.” Id. at 237 n.8, citing Faulkner v. Super Valu Stores, Inc.,\n3 F.3d 1419, 1423–24 (10th Cir. 1993) (laid-off warehouse\nworkers applying for jobs with new buyer of warehouse);\nWooden v. Board of Educ. of Jefferson Cty., 931 F.2d 376, 377 (6th\nCir. 1991) (applicant for full-time teaching positions).10 Smith\n\n\ncoverage, ‘applicants for employment.’” Ante at 13. This was simply not\nso in Griggs.\n 9 The Chamber of Commerce again weighed in, arguing against ex-\ntending Griggs’ disparate-impact analysis to the ADEA. The Chamber had\nstill not, however, hit upon the textual reading argued here, that job ap-\nplicants should be excluded from the ADEA’s disparate-impact provision.\nBrief of Amicus Curiae Chamber of Commerce of the United States of\nAmerica in Support of Respondents, 2004 WL 1905736 at 15 (Aug. 23,\n2004) (conceding that the reasoning of Griggs, which prohibited “segrega-\ntion of departments by race,” “applies equally to the ADEA, which sought\nto eliminate these kinds of express age ‘limits’ and ‘classifications,’ which\nfrequently were used against older workers. E.g. Labor Report at 21 (dis-\ncussing ‘persistent and widespread use of age limits in hiring’).”).\n 10Other earlier cases not cited in Smith had also allowed disparate-\nimpact age claims by job applicants. E.g., Lowe v. Commack Union Free\nSchool Dist., 886 F.2d 1364, 1365–70 (2d Cir. 1989) (laid-off teachers later re-\napplied but were not hired); Geller v. Markham, 635 F.2d 1027, 1030 (2d Cir.\n1980) (upholding jury award for teacher applicant temporarily hired, then\npassed over in favor of younger applicant due to “cost-cutting policy”);\nLeftwich v. Harris-Stowe State College, 702 F.2d 686, 689–90 (8th Cir. 1983)\n(faculty member forced to re-apply for job and not hired).\n\nNo. 17-1206 49\n\nthus seemed to end the questioning of Griggs’ relevance to the\nADEA’s disparate-impact provision. See, e.g., Meacham v.\nKnolls Atomic Power Lab., 554 U.S. 84, 95 (2008) (confirming\nthat § 623(a)(2) covers employment practices with disparate\nimpacts on older workers); Texas Dep’t of Housing, 135 S. Ct. at\n2518.\n Smith did not end the long tug-of-war between employers\nand workers over competing interpretations of civil rights\nlegislation. The authors of Hazen Paper concurred in Smith but\nplanted the seed of today’s dispute. Justice O’Connor, joined\nby Justices Kennedy and Thomas, concurred in the judgment\n“on the ground that disparate impact claims are not cogniza-\nble.” Smith, 544 U.S. at 248. A primary reason, they argued,\nnot to defer to the EEOC’s regulation that treated § 623(a)(2)\nas covering disparate-impact claims, was because the regula-\ntion also read the provision to cover employers’ hiring prac-\ntices—and thus protected applicants for employment. Id. at\n266. The concurrence pointed to the difference in language be-\ntween § 623(a)(1) and (a)(2) and asserted that “only”\n§ 623(a)(1) protects applicants and therefore the EEOC regu-\nlation “must” have read a disputed ADEA provision to “pro-\nvide a defense against claims under [§ 623(a)(1)]—which un-\nquestionably permits only disparate treatment claims.” Id.\nObviously that view did not carry the day in Smith.11\n Still, here we are. The resources that employers deployed\nin Smith to try to avoid all ADEA disparate-impact claims\n\n\n 11 Justice Scalia’s concurrence specifically rejected that reasoning as to\n\nthe EEOC regulation and, since the line drawing between applicants and\ncurrent employees was beyond the scope of Smith itself, expressed his ag-\nnosticism on that issue. Smith, 544 U.S. at 246 n.3.\n\n50 No. 17-1206\n\nhave been repurposed. Now they are deployed in a new cam-\npaign to show that the “plain text” of § 623(a)(2) permits em-\nployers to maintain irrational policies that disadvantage older\nindividuals so long as those individuals have not yet been\nhired by the employer. Today’s majority is not the first circuit\nto bite on this argument. The Eleventh Circuit has beaten us\nto it, ironically producing four opinions on the “plain” mean-\ning of the text. Villareal v. R.J. Reynolds Tobacco Co., 839 F.3d\n958 (11th Cir. 2016) (en banc). We should not adopt this delib-\nerately naïve and ahistorical approach.\nIII. Practical Consequences and Statutory Purpose\n The text and precedent favor the view that job applicants\nmay bring disparate-impact claims under the AEDA. In con-\nstruing ambiguous statutory language, it also makes sense to\nconsider the practical consequences of the different readings\nof § 623(a)(2) and how they fit with the overall statute’s design\nand purpose. E.g., Graham County, 559 U.S. at 299–301 (con-\nsidering practical consequences when determining better\nreading of statute); Dewsnup v. Timm, 502 U.S. 410, 416–20\n(1992) (same); Burwell, 135 S. Ct. at 2489 (same). Those consid-\nerations weigh heavily against the majority here.\n A simple hypothetical shows how improbable and arbi-\ntrary the majority’s reading is. Suppose the majority is correct\nthat § 623(a)(2) applies only to current employees. Imagine\ntwo applicants for the defendant’s senior counsel position\nhere. Both are in their fifties, and both have significantly more\nthan seven years of relevant legal experience. One is Kleber,\nwho does not currently have a job with the defendant. The\nother already works for the defendant but wants a transfer or\npromotion to the senior counsel position. Both are turned\ndown because they have more than the maximum seven years\n\nNo. 17-1206 51\n\nof experience. According to the majority, the inside applicant\ncan sue for a disparate-impact violation, but the outside one\ncannot.\n That result is baffling, especially under a statute with the\nstated purpose “to prohibit arbitrary age discrimination in\nemployment.” 29 U.S.C. § 621(b). And the majority’s view de-\npends entirely on the assumption that the statutory phrase\n“otherwise adversely affect his status as an employee” cannot\npossibly be applied to an individual who is, because of the\nchallenged employment practice, completely denied any status\nas an employee. I cannot imagine that when the ADEA was\nenacted, “a reasonable person conversant with applicable so-\ncial conventions would have understood” the ADEA as draw-\ning the line the majority adopts here. See John F. Manning,\nWhat Divides Textualists from Purposivists?, 106 Colum. L. Rev.\n70, 77 (2006); accord, In re Sinclair, 870 F.2d 1340, 1342 (7th Cir.\n1989) (legislative history may provide context for statutory\nlanguage and “may be invaluable in revealing the setting of\nthe enactment and the assumptions its authors entertained\nabout how their words would be understood”).\n Under the majority’s interpretation, still further arbitrary\nline-drawing will now be needed. Suppose the applicant is\ncurrently employed by a sister subsidiary of the employer.\nDoes she have the right “status as an employee” so that she\ncan assert a disparate impact claim? Should the answer de-\npend on some sort of corporate veil-piercing theory? Or sup-\npose the applicant was recently laid off by the employer and\nchallenges its failure to recall her. Or suppose the applicant\ncurrently has a position through a temporary employment\n\n52 No. 17-1206\n\nagency, working side-by-side with employees. I see no argu-\nable reason to exclude any of these applicants from the dis-\nparate-impact protection of paragraph (a)(2).\n Neither the majority nor the defendant or its amici have\noffered a reason why Congress might have chosen to allow\nthe inside applicant but not the outside applicant to assert a\ndisparate-impact claim. I can’t either. Faced with the arbitrary\nconsequences of drawing this line half a century after Con-\ngress drafted the legislation, the majority shrugs and says tau-\ntologically that it’s “the province of Congress to choose where\nto draw legislative lines and to mark those lines with lan-\nguage.” Ante at 14.12\n Of course, Congress can and often does draw arbitrary\nlines when it wants to do so. When it does, courts enforce\n\n 12Far from offering a reason, defendant defiantly claims that just be-\ncause Congress has drawn the line between “employees” and “appli-\ncants” “for no good reason, and that the line might create hypothesized\nanomalies, [that] is no reason to disregard Congress’ words.” Petition for\nRehearing En Banc, Dkt. 43 at 10 (May 10, 2018). The Chamber of Com-\nmerce amicus brief feints toward ascribing intent to Congress, arguing\nthat foreclosing applicants from recourse was “[o]ne of the careful lines\ndrawn by Congress” because the ADEA “strikes a careful balance between\nprohibiting irrational barriers to employment of older workers and pre-\nserving employers’ ability to adopt sound hiring policies.” Dkt. 19 at 3, 1\n(Sept. 6, 2018). There is no evidence of such a deliberate choice in\n§ 623(a)(2). Under the Chamber’s theory, that “balance” is shifted entirely\nin employers’ favor. An employer can set wildly irrational hiring crite-\nria—such as requiring Twitter, Instagram, and Snapchat proficiency for\nan entry-level position at a fast-food joint, which would likely have a large\ndisparate impact on older workers. As long as that position is not open to\ninternal applicants, that would be a highly effective yet immune “barrier\nto employment of older workers.” That’s not a “careful line.” It’s non-\nsense.\n\nNo. 17-1206 53\n\nthose lines, absent constitutional problems. See, e.g., Stephens\nv. Heckler, 766 F.2d 284, 286 (7th Cir. 1985) (Congress can dic-\ntate outcomes even though “there is no shortage of arbitrari-\nness in disability cases”); First Chicago NBD Corp. v. Comm’r of\nInternal Revenue, 135 F.3d 457, 460 (7th Cir. 1998) (“arbitrari-\nness is everywhere in the tax code, so that an approach to in-\nterpretation that sought to purge the arbitrary from the code\nwould be quixotic”). But when the statutory language is at\nworst ambiguous, see above at 21–27, courts should not em-\nbrace such arbitrary results so at odds with the stated statu-\ntory purpose. See, e.g., Graham County, 559 U.S. at 283, 299–\n301 (False Claims Act); Gustafson v. Alloyd Co., Inc., 513 U.S.\n561, 564, 578 (1995) (Securities Act of 1933); see also, e.g., Ken-\nnedy v. Chemical Waste Mgmt., Inc., 79 F.3d 49, 51 (7th Cir. 1996)\n(Americans with Disabilities Act); Martin v. Luther, 689 F.2d\n109, 114 (7th Cir. 1982) (reaching conclusion about parole rev-\nocation “supported by common sense and an assessment of\nthe practical consequences, which naturally guide our inter-\npretation of legislative enactments”).\n The majority’s arbitrary line undermines the stated pur-\npose of the statute. Statutory purpose here is not a matter of\njudicial inference but of statutory declaration in the text en-\nacted by both Houses of Congress and signed by the Presi-\ndent. Congress enacted the ADEA to address unfair employ-\nment practices that make it harder for older people to find\njobs. 29 U.S.C. § 621(a). That purpose was reflected in a variety\nof statutory provisions, as noted above. In addition to the stat-\nute’s specific reliance on its stated purpose, we know from the\n1965 Department of Labor report that was the catalyst for the\nADEA—known as the Wirtz Report—that Congress had job\napplicants very much in mind. Report of the Secretary of La-\n\n54 No. 17-1206\n\nbor, The Older American Worker: Age Discrimination in Employ-\nment (June 1965), reprinted in U.S. Equal Employment Dis-\ncrimination in Employment Act (1981), Doc. No. 5 (the Wirtz\nReport).\n Under the majority’s reading of § 623(a)(2), the ADEA’s\nprotection of the “employment opportunities” of “any indi-\nvidual” prohibits employment practices with disparate im-\npacts in firing older workers and in promoting, paying, and\nmanaging them, but not in hiring them! Congress was con-\ncerned about all of these forms of discrimination. Wirtz Re-\nport at 21–22; see also Employment of Older Workers, 111 Cong.\nRec. 15518, 15518–19 (1965) (describing Wirtz Report as urg-\ning “a clear, unequivocal national policy against hiring that\ndiscriminates against older workers” and referring to “job\nopenings,” and “applicants over 45”); EEOC v. Wyoming, 460\nU.S. 226, 231 (1983) (observing that Wirtz Report concluded\n“arbitrary age discrimination was profoundly harmful … [be-\ncause] it deprived the national economy of the productive la-\nbor of millions … [and] substantially increased costs in unem-\nployment insurance and federal Social Security benefits” for\nolder workers who could not land a job).\n A central goal—arguably the most central goal—of the\nstatute was to prevent age discrimination in hiring. Congress\nand the Wirtz Report explained that the problem stemmed\nnot just from explicit bias against older workers (i.e., dispar-\nate treatment), but also from “[a]ny formal employment\nstandard” neutral on its face yet with adverse effects on oth-\nerwise qualified older applicants. Wirtz Report at 3; see also\nSmith, 544 U.S. at 235 n.5. Those neutral standards and other\nthoughtless or even well-intentioned employment practices\ncan be addressed only with a disparate-impact theory under\n\nNo. 17-1206 55\n\n§ 623(a)(2). The report made clear that the older people who\nsuffered the disparate impact from such practices were those\ntrying to get hired in the first place. The report explained that\ndespite the beneficial effects of such policies, “ironically, they\nsometimes have tended to push still further down the age at\nwhich employers begin asking whether or not a prospective em-\nployee is too old to be taken on.” Wirtz Report at 2 (emphasis\nadded).\n Against this evidence of contemporary understandings,\nthe majority offers no plausible policy reasons, but only its\nwooden and narrow textual interpretation, which is anything\nbut inevitable. Wearing blinders that prevent sensible inter-\npretation of ambiguous statutory language, the majority\nadopts the improbable view that the Act outlawed employ-\nment practices with disparate impacts on older workers, but\nexcluded from that protection everyone not already working\nfor the employer in question.\n * * *\n Given the statutory language in § 623(a)(2), the interpreta-\ntion of that language in Smith and identical language in\nGriggs, the practical consequences of the interpretive choice,\nand the absence of any policy rationale for barring outside job\napplicants from raising disparate-impact claims, we should\nreject the improbable and arbitrary distinction adopted by the\nmajority. We should hold that outside job applicants like\nKleber may bring disparate-impact claims of age discrimina-\ntion. I respectfully dissent.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4361309/", "author_raw": "HAMILTON, Circuit Judge, dissenting"}]}	WOOD	BAUER	FLAUM	2	EASTERBROOK; KANNE; ROVNER; SYKES; HAMILTON; BARRETT; BRENNAN; SCUDDER; ST EVE	{"WOOD": ", Chief", "BAUER": ", Circuit", "FLAUM": ", Circuit", "EASTERBROOK": ", Circuit", "KANNE": ", Circuit", "ROVNER": ", Circuit", "SYKES": ", Circuit", "HAMILTON": ", Circuit", "BARRETT": ", Circuit", "BRENNAN": ", Circuit", "SCUDDER": ", Circuit", "ST EVE": ", Circuit"}	3	2	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4584056/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Dale Kleber v. CareFusion Corporation\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-23\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-1206\nDALE E. KLEBER,\n Plaintiff-Appellant,\n v.\n\nCAREFUSION CORPORATION,\n Defendant-Appellee.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 1:15-cv-1994 — Sharon Johnson Coleman, Judge.\n ____________________\n\n ARGUED SEPTEMBER 6, 2018 — DECIDED JANUARY 23, 2019\n ____________________\n\n Before WOOD, Chief Judge, and BAUER, FLAUM,\nEASTERBROOK, KANNE, ROVNER, SYKES, HAMILTON, BARRETT,\nBRENNAN, SCUDDER, and ST. EVE, Circuit Judges.\n SCUDDER, Circuit Judge. After Dale Kleber unsuccessfully\napplied for a job at CareFusion Corporation, he sued for age\ndiscrimination on a theory of disparate impact liability. The\ndistrict court dismissed his claim, concluding that § 4(a)(2) of\nthe Age Discrimination in Employment Act did not authorize\njob applicants like Kleber to bring a disparate impact claim\n\n2 No. 17-1206\n\nagainst a prospective employer. A divided panel of this court\nreversed. We granted en banc review and, aﬃrming the dis-\ntrict court, now hold that the plain language of § 4(a)(2) makes\nclear that Congress, while protecting employees from dispar-\nate impact age discrimination, did not extend that same pro-\ntection to outside job applicants. While our conclusion is\ngrounded in § 4(a)(2)’s plain language, it is reinforced by the\nADEA’s broader structure and history.\n I\n In March 2014, Kleber, an attorney, applied for a senior in-\nhouse position in CareFusion’s law department. The job de-\nscription required applicants to have “3 to 7 years (no more\nthan 7 years) of relevant legal experience.” Kleber was 58 at\nthe time he applied and had more than seven years of perti-\nnent experience. CareFusion passed over Kleber and instead\nhired a 29-year-old applicant who met but did not exceed the\nprescribed experience requirement.\n Kleber responded by bringing this action and pursuing\nclaims for both disparate treatment and disparate impact un-\nder § 4(a)(1) and § 4(a)(2) of the ADEA. Relying on our prior\ndecision in EEOC v. Francis W. Parker School, 41 F.3d 1073 (7th\nCir. 1994), the district court granted CareFusion’s motion to\ndismiss Kleber’s disparate impact claim, reasoning that the\ntext of § 4(a)(2) did not extend to outside job applicants.\nKleber then voluntarily dismissed his separate claim for dis-\nparate treatment liability under § 4(a)(1). This appeal fol-\nlowed.\n\nNo. 17-1206 3\n\n II\n A\n We begin with the plain language of § 4(a)(2). “If the stat-\nutory language is plain, we must enforce it according to its\nterms.” King v. Burwell, 135 S. Ct. 2480, 2489 (2015). This pre-\ncept reinforces the constitutional principle of separation of\npowers, for our role is to interpret the words Congress enacts\ninto law without altering a statute’s clear limits. See Puerto\nRico v. Franklin Cal. Tax-Free Trust, 136 S. Ct. 1938, 1949 (2016).\n Section 4(a)(2) makes it unlawful for an employer\n to limit, segregate, or classify his employees in\n any way which would deprive or tend to de-\n prive any individual of employment opportuni-\n ties or otherwise adversely aﬀect his status as an\n employee, because of such individual’s age.\n29 U.S.C. § 623(a)(2).\n By its terms, § 4(a)(2) proscribes certain conduct by em-\nployers and limits its protection to employees. The prohibited\nconduct entails an employer acting in any way to limit, segre-\ngate, or classify its employees based on age. The language of\n§ 4(a)(2) then goes on to make clear that its proscriptions ap-\nply only if an employer’s actions have a particular impact—\n“depriv[ing] or tend[ing] to deprive any individual of em-\nployment opportunities or otherwise adversely aﬀect[ing] his\nstatus as an employee.” This language plainly demonstrates\nthat the requisite impact must befall an individual with “sta-\ntus as an employee.” Put most simply, the reach of § 4(a)(2)\ndoes not extend to applicants for employment, as common\ndictionary definitions confirm that an applicant has no “status\nas an employee.” See Merriam-Webster’s Collegiate\n\n4 No. 17-1206\n\nDictionary 60, 408 (11th ed. 2003) (defining “applicant” as\n“one who applies,” including, for example, “a job [appli-\ncant],” while defining “employee” as “one employed by an-\nother usu[ally] for wages or salary and in a position below the\nexecutive level”).\n Subjecting the language of § 4(a)(2) to even closer scrutiny\nreinforces our conclusion. Congress did not prohibit just con-\nduct that “would deprive or tend to deprive any individual of\nemployment opportunities.” It went further. Section 4(a)(2)\nemploys a catchall formulation—“or otherwise adversely af-\nfect his status as an employee”—to extend the proscribed con-\nduct. Congress’s word choice is significant and has a unifying\neﬀect: the use of “or otherwise” serves to stitch the prohibi-\ntions and scope of § 4(a)(2) into a whole, first by making clear\nthat the proscribed acts cover all conduct “otherwise af-\nfect[ing] his status as an employee,” and, second, by limiting\nthe reach of the statutory protection to an individual with\n“status as an employee.” See Villarreal v. R.J. Reynolds Tobacco\nCo., 839 F.3d 958, 964 (11th Cir. 2016) (en banc) (interpreting\n§ 4(a)(2) the same way and explaining that the “or otherwise”\nlanguage “operates as a catchall: the specific items that pre-\ncede it are meant to be subsumed by what comes after the ‘or\notherwise’”).\n Kleber begs to diﬀer, arguing that § 4(a)(2)’s coverage\nextends beyond employees to applicants for employment. He\ngets there by focusing on the language in the middle of\n§ 4(a)(2)—“deprive or tend to deprive any individual of\nemployment opportunities”—and contends that the use of\nthe expansive term “any individual” shows that Congress\nwished to cover outside job applicants. If the only question\nwere whether a job applicant counts as “any individual,”\n\nNo. 17-1206 5\n\nKleber would be right. But time and again the Supreme Court\nhas instructed that statutory interpretation requires reading a\ntext as a whole, and here that requires that we refrain from\nisolating two words when the language surrounding those\ntwo words supplies essential meaning and resolves the\nquestion before us. See, e.g., United Sav. Ass’n of Tex. v. Timbers\nof Inwood Forest Assocs., Ltd., 484 U.S. 365, 371 (1988)\n(describing statutory construction as a “holistic endeavor”);\nsee also K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988)\n(directing courts to consider “the language and design of the\nstatute as a whole”); Trustees of Chicago Truck Drivers v.\nLeaseway Transp. Corp., 76 F.3d 824, 828 (7th Cir. 1996)\n(emphasizing the same points and explaining that the\nmeaning of statutory text comes from reading language in\ncontext and not words in insolation).\n Reading § 4(a)(2) in its entirety shows that Congress em-\nployed the term “any individual” as a shorthand reference to\nsomeone with “status as an employee.” This construction is\nclear from Congress’s use of language telling us that the pro-\nvision covers “any individual” deprived of an employment\nopportunity because such conduct “adversely aﬀects his sta-\ntus as an employee.” Put diﬀerently, ordinary principles of\ngrammatical construction require connecting “any individ-\nual” (the antecedent) with the subsequent personal possessive\npronoun “his,” and upon doing so we naturally read “any in-\ndividual” as referring and limited to someone with “status as\nan employee.” See Flora v. United States, 362 U.S. 145, 150\n(1960) (“This Court naturally does not review congressional\nenactments as a panel of grammarians; but neither do we re-\ngard ordinary principles of English prose as irrelevant to a\nconstruction of those enactments.”). The clear takeaway is\nthat a covered individual must be an employee.\n\n6 No. 17-1206\n\n Our conclusion becomes ironclad the moment we look be-\nyond § 4(a)(2) and ask whether other provisions of the ADEA\ndistinguish between employees and applicants. See Mount\nLemmon Fire Dist. v. Guido, 139 S. Ct. 22, 24 (2018) (endorsing\nthis same approach when interpreting the ADEA’s various\ndefinitions of “employer”). We do not have to look far to see\nthat the answer is yes.\n Right next door to § 4(a)(2) is § 4(a)(1), the ADEA’s dispar-\nate treatment provision. In § 4(a)(1), Congress made it unlaw-\nful for an employer “to fail or refuse to hire or to discharge any\nindividual or otherwise discriminate against any individual\nwith respect to his compensation, terms, conditions, or privi-\nleges of employment, because of such individual’s age.” 29\nU.S.C. § 623(a)(1) (emphasis added). All agree that § 4(a)(1),\nby its terms, covers both employees and applicants. See, e.g.,\nKralman v. Ill. Dep’t of Veterans’ Aﬀairs, 23 F.3d 150, 152–53 (7th\nCir. 1994) (treating an applicant’s right to bring a claim under\n§ 4(a)(1) as unquestioned). Compelling this consensus is\n§ 4(a)(1)’s use of the words “to fail or refuse to hire or to dis-\ncharge,” which make clear that “any individual” includes\nsomeone seeking to be hired. 29 U.S.C. § 623(a)(1).\n Yet a side-by-side comparison of § 4(a)(1) with § 4(a)(2)\nshows that the language in the former plainly covering appli-\ncants is conspicuously absent from the latter. Section 4(a)(2)\nsays nothing about an employer’s decision “to fail or refuse to\nhire … any individual” and instead speaks only in terms of\nan employer’s actions that “adversely aﬀect his status as an\nemployee.” We cannot conclude this diﬀerence means noth-\ning: “when ‘Congress includes particular language in one sec-\ntion of a statute but omits it in another’—let alone in the very\nnext provision—the Court presumes that Congress intended\n\nNo. 17-1206 7\n\na diﬀerence in meaning.” Loughrin v. United States, 573 U.S.\n351, 358 (2014) (quoting Russello v. United States, 464 U.S. 16,\n23 (1983)).\n There is even more. A short distance away from § 4(a)(2)\nis § 4(c)(2), which disallows labor organizations from engag-\ning in particular conduct. Section 4(c)(2), in pertinent part,\nmakes it unlawful for a labor organization\n to limit, segregate, or classify its membership …\n in any way which would deprive or tend to de-\n prive any individual of employment opportuni-\n ties … or otherwise adversely aﬀect his status as\n an employee or as an applicant for employment, be-\n cause of such individualʹs age.\n29 U.S.C. § 623(c)(2) (emphasis added).\n The parallel with § 4(a)(2) is striking: both provisions de-\nfine the prohibited conduct in terms of action that “would de-\nprive or tend to deprive any individual of employment op-\nportunities,” only then to include the “or otherwise adversely\naﬀect” catchall language. But there is a big diﬀerence between\nthe two provisions: § 4(c)(2)’s protection extends to any indi-\nvidual with “status as an employee or as an applicant for em-\nployment,” whereas Congress limited § 4(a)(2)’s reach only to\nsomeone with “status as an employee.”\n Consider yet another example. In § 4(d), Congress ad-\ndressed employer retaliation by making it “unlawful for an\nemployer to discriminate against any of his employees or appli-\ncants for employment” because such an individual has opposed\ncertain unlawful practices of age discrimination. 29 U.S.C.\n§ 623(d) (emphasis added). Here, too, the distinction between\n“employees” and “applicants” jumps oﬀ the page.\n\n8 No. 17-1206\n\n Each of these provisions distinguishes between employees\nand applicants. It is implausible that Congress intended no\nsuch distinction in § 4(a)(2), however, and instead used the\nterm employees to cover both employees and applicants. To\nconclude otherwise runs afoul of the Supreme Court’s ad-\nmonition to take statutes as we find them by giving eﬀect to\ndiﬀerences in meaning evidenced by diﬀerences in language.\nSee Mount Lemmon Fire Dist., 139 S. Ct. at 26 (declining the\ndefendant’s invitation to take language from one part of a sen-\ntence and then “reimpose it for the portion” of the sentence in\nwhich Congress omitted the same language); see also Dep’t of\nHomeland Sec. v. MacLean, 135 S. Ct. 913, 919 (2015) (explaining\nthat “Congress generally acts intentionally when it uses par-\nticular language in one section of a statute but omits it in an-\nother”).\n In the end, the plain language of § 4(a)(2) leaves room for\nonly one interpretation: Congress authorized only employees\nto bring disparate impact claims.\n B\n Kleber urges a diﬀerent conclusion in no small part on the\nbasis of the Supreme Court’s 1971 decision in Griggs v. Duke\nPower Co., 401 U.S. 424, where the Court interpreted\n§ 703(a)(2) of Title VII and held that disparate impact was a\nviable theory of liability. Indeed, Kleber goes so far as to say\nGriggs—a case where the Court considered language in Title\nVII that at the time paralleled the language we consider\nhere—controls and mandates a decision in his favor. We dis-\nagree.\n A commonsense observation is warranted at the outset. If\nKleber is right that Griggs, a Title VII case, compels the\n\nNo. 17-1206 9\n\nconclusion that § 4(a)(2) of the ADEA authorizes outside job\napplicants to bring a disparate impact claim, we find it very\ndiﬃcult to explain why it took the Supreme Court 34 years to\nresolve whether anyone—employee or applicant—could sue\non a disparate impact theory under the ADEA, as it did in\nSmith v. City of Jackson, 544 U.S. 228 (2005). There was no need\nfor the Court to decide Smith if (all or part of) the answer came\nin Griggs. And when the Court did decide Smith the Justices’\nseparate opinions recognized the imperative of showing\nimpact to an individual’s “status as an employee” when\ndiscerning the reach of § 4(a)(2). See id. at 235–36, 236 n.6\n(plurality opinion); see id. at 266 (O’Connor, J., concurring,\njoined by Kennedy & Thomas, JJ.).\n Kleber’s position fares no better within the four corners of\nGriggs itself. Several African-American employees of Duke\nPower challenged the company’s practice of conditioning cer-\ntain job transfers and promotions on graduating from high\nschool and passing a standardized aptitude test. See 401 U.S.\nat 426. The employees sued under § 703(a) of Title VII, a pro-\nvision that in 1971 mirrored the present language of § 4(a)(2)\nof the ADEA. See id. at 426 n.1. The Court held that § 703(a)(2)\nprohibits disparate impact discrimination by proscribing\n“practices that are fair in form, but discriminatory in opera-\ntion” unless an employer can show that the challenged prac-\ntice is “related to job performance” and thus a “business ne-\ncessity.” Id. at 431.\n Kleber would have us read Griggs beyond its facts by fo-\ncusing on language in a couple of places in the Court’s opin-\nion that he sees as covering employees and applicants alike.\nWe decline the invitation. Nowhere in Griggs did the Court\nstate that its holding extended to job applicants. And that\n\n10 No. 17-1206\n\nmakes perfect sense because nothing about the case, brought\nas it was by employees of Duke Power and not outside appli-\ncants, required the Court to answer that question. The lan-\nguage that Kleber insists on reading in isolation must be read\nin context, and the totality of the Griggs opinion makes clear\nthat the Court answered whether Duke Power’s African-\nAmerican employees could bring a claim for disparate impact\nliability based on practices that kept them from pursuing dif-\nferent, higher-paying jobs within the company.\n What happened a year after Griggs cements our conclu-\nsion. In 1972, Congress amended § 703(a)(2) of Title VII—the\nprovision at issue in Griggs—by adding language to expressly\ninclude “applicants for employment.” Pub. L. No. 92-261,\n§ 8(a), 86 Stat. 109 (1972). This amendment occurred in the im-\nmediate wake of Griggs and, in this way, reflected Congress’s\nswift and clear desire to extend Title VII’s disparate impact\nprotection to job applicants. There was no need for Congress\nto amend § 703(a)(2) if the provision had always covered job\napplicants and especially if the Supreme Court had just said\nso in Griggs. To conclude otherwise renders the 1972 amend-\nment a meaningless act of the 92nd Congress, and we are re-\nluctant to conclude that substantive changes to statutes reflect\nidle acts.\n The Supreme Court endorsed this precise course of analy-\nsis—giving eﬀect to “Congress’s decision to amend Title VII’s\nrelevant provisions but not make similar changes to the\nADEA”—in Gross v. FBL Financial Servs., Inc., 557 U.S. 167, 174\n(2009). The Court there considered whether a plaintiﬀ suing\nunder § 4(a)(1) of the ADEA must establish that age was the\nbut-for cause of an employer’s adverse action. See id. at 173.\nThe plaintiﬀ urged the Court to adopt Title VII’s lesser\n\nNo. 17-1206 11\n\nstandard of race being only a motivating factor in the chal-\nlenged decision. See id. Paramount to the Court’s conclusion\nthat an ADEA plaintiﬀ must prove but-for causation were tex-\ntual diﬀerences between the ADEA and Title VII brought\nabout by Congress’s amendments to Title VII. See id. at 174\n(explaining that “Congress neglected to add such a [motivat-\ning-factor] provision to the ADEA when it amended Title VII\n[in 1991]” and emphasizing that “[w]hen Congress amends\none statutory provision but not another, it is presumed to\nhave acted intentionally”). The Court’s instruction was clear:\nprior decisions interpreting Title VII “do not control our con-\nstruction of the ADEA” where the text of the two statutes are\n“materially diﬀerent.” Id. at 173.\n And so it is here. Congress’s choice to add “applicants” to\n§ 703(a)(2) of Title VII but not to amend § 4(a)(2) of the ADEA\nin the same way is meaningful. Gross teaches that we cannot\nignore such diﬀerences in language between the two enact-\nments. And, at the risk of understatement, Gross is far from an\naberration in statutory construction. A mountain of precedent\nsupports giving eﬀect to statutory amendments. See, e.g.,\nUnited States v. Quality Stores, Inc., 572 U.S. 141, 148 (2014)\n(quoting Stone v. INS, 514 U.S. 386, 397 (1995)) (“When Con-\ngress acts to amend a statute, we presume it intends its\namendment to have real and substantial eﬀect.”); Fidelity Fin.\nServs., Inc. v. Fink, 522 U.S. 211, 220–21 (1998) (explaining that\nafter Congress modified the federal statute controlling when\na transfer of a security interest was perfected, “we see no basis\nto say that subsequent amendments removing references to\nstate-law options had the counterintuitive eﬀect of deferring\nto such [state law] options” without unwinding the statutory\namendments); United States v. Wells, 519 U.S. 482, 492–93\n(1997) (explaining that after Congress amended the federal\n\n12 No. 17-1206\n\ncriminal statute pertinent to false representations to remove\nany express reference to materiality, “the most likely infer-\nence in these circumstances is that Congress deliberately\ndropped the term ‘materiality’ without intending materiality\nto be an element of [18 U.S.C.] § 1014”); Stone, 514 U.S. at 397–\n98 (explaining that after Congress amended the Immigration\nand Naturalization Act, “[t]he reasonable construction [was]\nthat the amendment was enacted as an exception, not just to\nstate an already existing rule”).\n In no way does this analysis downplay Griggs, as our dis-\nsenting colleagues contend. We have approached Griggs as\nbinding precedent and construed its holding not only by\nreading what the Supreme Court’s opinion says (and does not\nsay), but also in light of Congress’s immediately amending\nTitle VII (but not § 4(a)(2) of the ADEA) to cover “applicants”\nas well as the broader development in the law ever since, in-\ncluding with precedents like Smith in 2005 and Gross in 2009.\n The upshot is clear: while Congress amended § 703(a)(2)\nof Title VII in 1972 to cover “applicants for employment,” it\nhas never followed suit and modified § 4(a)(2) of the ADEA in\nthe same way. And this is so despite Congress’s\ndemonstrating, just a few years after Griggs, that it knew how\nto amend the ADEA to expressly include outside job\napplicants. See Villarreal, 839 F.3d at 979–80 (Rosenbaum, J.,\nconcurring) (observing that Congress amended the ADEA in\n1974 to extend the statute’s reach to federal-government\nemployment, and in doing so, explicitly referenced both\n“employees and applicants for employment” in the new\nprovision, 29 U.S.C. § 633a).\n Today, then, § 703(a)(2) of Title VII diﬀers from § 4(a)(2) in\nat least one material respect: the protections of the former\n\nNo. 17-1206 13\n\nextend expressly to “applicants for employment,” while the\nlatter covers only individuals with “status as an employee.”\nWe underscored this exact diﬀerence 14 years ago in our opin-\nion in Francis W. Parker, and we do so again today. See 41 F.3d\nat 1077 (“The ‘mirror’ provision in the ADEA omits from its\ncoverage, ‘applicants for employment.’”). The plain language\nof § 4(a)(2) controls and compels judgment in CareFusion’s\nfavor.\n C\n Beyond his reliance on Griggs, Kleber invites us to read the\nADEA against the backdrop of Congress’s clear purpose of\nbroadly prohibiting age discrimination. On this score, he\npoints us to the Supreme Court’s decision in Robinson v. Shell\nOil Company, 519 U.S. 337 (1997) and to the report of the\nformer Secretary of the Department of Labor, Willard Wirtz.\n In Robinson, the Court held that § 704(a) of Title VII ex-\ntended not just to “employees” (a term used in § 704(a)), but\nalso to former employees. See id. at 346. The Court empha-\nsized that, while the meaning of “employees” was ambigu-\nous, Title VII’s broader structure made plain that Congress\nintended the term to cover former employees, a construction\nthat furthered Title VII’s broader purposes. None of this helps\nKleber. (Indeed, if anything, Robinson’s clear observation of\nthe distinct and separate meaning of “employees” and “appli-\ncants for employment” in § 704(a) severely undermines\nKleber’s textual argument. See id. at 344.) Robinson, in short,\nprovides direction on how courts— if confronted with statu-\ntory ambiguity—should resolve such ambiguity. There being\nno ambiguity in the meaning of § 4(a)(2) of the ADEA, our\nrole ends—an outcome on all fours with Robinson.\n\n14 No. 17-1206\n\n The Wirtz Report reflected the Labor Department’s\nresponse to Congress’s request for recommended age\ndiscrimination legislation, and a plurality of the Supreme\nCourt in Smith treated the Report as an authoritative signal of\nCongress’s intent when enacting the ADEA. See Smith, 544\nU.S. at 238. We do too.\n Nobody disputes that the Wirtz Report reinforces\nCongress’s clear aim of enacting the ADEA to prevent age\ndiscrimination in the workplace by encouraging the\nemployment of older persons, including older job applicants.\nBut we decline to resolve the question presented here on the\nbasis of broad statutory purposes or, more specifically, to\nforce an interpretation of but one provision of the ADEA\n(here, § 4(a)(2)) to advance the enactment’s full objectives.\n Our responsibility is to interpret § 4(a)(2) as it stands in the\nU.S. Code and to ask whether the provision covers outside job\napplicants. We cannot say it does and remain faithful to the\nprovision’s plain meaning. It remains the province of\nCongress to choose where to draw legislative lines and to\nmark those lines with language. Our holding gives eﬀect to\nthe plain limits embodied in the text of § 4(a)(2).\n The ADEA, moreover, is a wide-ranging statutory scheme,\nmade up of many provisions beyond § 4(a)(2). And a broader\nlook at the statute shows that outside job applicants have\nother provisions at their disposal to respond to age discrimi-\nnation. Section 4(a)(1), for example, prevents an employer\nfrom disparately treating both job applicants and employees\non the basis of age. See 29 U.S.C. § 623(a)(1). Section 4(c)(2),\nprevents a labor organization’s potential age discrimination\nagainst both job applicants and employees. See 29 U.S.C.\n§ 623(c)(2).\n\nNo. 17-1206 15\n\n Today’s decision, while unfavorable to Kleber, leaves\nteeth in § 4(a)(2). The provision protects older employees who\nencounter age-based disparate impact discrimination in the\nworkplace. And Congress, of course, remains free to do what\nthe judiciary cannot—extend § 4(a)(2) to outside job appli-\ncants, as it did in amending Title VII.\n For these reasons, we AFFIRM.\n\n16 No. 17-1206\n[END_CASE]", "role": "user" } ]
4,584,266	Susan NIELEN-THOMAS, Plaintiff-Appellant, v. CONCORDE INVESTMENT SERVICES, LLC, Et Al., Defendants-Appellees.	Susan Nielen-Thomas v. Concorde Investment Services	2019-01-24	18-2875	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Flaum, Kanne, Hamilton", "parties": "", "opinions": [{"author": "Joel Martin Flaum", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-2875\nSUSAN NIELEN-THOMAS,\n Plaintiff-Appellant,\n v.\n\nCONCORDE INVESTMENT SERVICES, LLC, et al.,\n Defendants-Appellees.\n ____________________\n\n Appeal from the United States District Court for the\n Western District of Wisconsin.\n No. 18-cv-00229 — James D. Peterson, Chief District Judge.\n ____________________\n\n ARGUED JANUARY 15, 2019 — DECIDED JANUARY 24, 2019\n ____________________\n\n Before FLAUM, KANNE, and HAMILTON, Circuit Judges.\n FLAUM, Circuit Judge. Susan Nielen-Thomas, on behalf of\nherself and others similarly situated, filed a complaint in Wis-\nconsin state court alleging she and other class members were\ndefrauded by their investment advisor. Defendants removed\nthe case to federal court. They then argued the action should\nbe dismissed because it was a “covered class action” pre-\ncluded by the Securities Litigation Uniform Standards Act of\n1998 (“SLUSA”). See 15 U.S.C. § 78bb(f)(1), (f)(5)(B), amending\n\f2 No. 18-2875\n\nSecurities Exchange Act of 1934. 1 According to Nielen-\nThomas, her lawsuit did not meet SLUSA’s “covered class ac-\ntion” definition because she alleged a proposed class with\nfewer than fifty members. See § 78bb(f)(5)(B)(i)(I). The district\ncourt agreed with defendants that Nielen-Thomas’s suit was\na “covered class action” because she brought her claims in a\nrepresentative capacity, see § 78bb(f)(5)(B)(i)(II), and it dis-\nmissed her claims with prejudice.\n We hold that the plain language of SLUSA’s “covered\nclass action” definition includes any class action brought by a\nnamed plaintiff on a representative basis, regardless of the\nproposed class size. Because this includes Nielen-Thomas’s\nclass action lawsuit and her complaint meets all other statu-\ntory requirements, her lawsuit is precluded by SLUSA. We af-\nfirm the judgment of the district court.\n I. Background\n On February 5, 2018, plaintiff-appellant Nielen-Thomas\nfiled a putative class action in Wisconsin state court against\ndefendants-appellees Concorde Investment Services, LLC,\nFortune Financial Services, Inc., TD Ameritrade, Inc., Wiscon-\nsin River Bank, Jeffrey L. Butler, and Wisconsin Investment\nServices LLC. The class includes retail clients of Butler and his\ninvestment advisory firm, Wisconsin Investment Services.\nAccording to the complaint, Butler exercised control of his cli-\nents’ accounts and owed them a fiduciary duty to act in their\nbest interests. Butler allegedly failed to properly manage\nthese accounts, though, leading to huge losses.\n\n 1See also 15 U.S.C. § 77p(b), (f)(2) (amending Securities Act of 1933 in\nan identical way). The parties cite solely to the 1934 Act amendments, so\nwe do the same in this opinion unless otherwise noted.\n\fNo. 18-2875 3\n\n Nielen-Thomas identifies two ways Butler mismanaged\naccounts. First, Butler promised to create individualized port-\nfolios for each investor; instead, he subjected his clients to\nblock trades that lacked asset allocation and diversification\nsuitable for retail investors. Second, Butler repeatedly pur-\nchased and sold on behalf of his clients an exchange-traded\nnote known as VXX. VXX is an unsecured debt instrument\ndesigned to track the movement of futures on an index that\nmeasures overall market volatility. This note is inherently vol-\natile and risky, and it is designed to be used as a hedge by\nsophisticated investors only on a short-term basis. However,\nButler repeatedly purchased and sold VXX on behalf of his\nretail clients and let it sit in their accounts for months, even\nthough such a strategy was practically guaranteed to lose\nmoney.\n The other defendants are entities that Nielen-Thomas\nclaims are also responsible for Butler’s conduct. Butler was a\nregistered broker with Concorde from March 2012 to May\n2015 and with Fortune from July 2015 to December 2016. Con-\ncorde and Fortune were required to supervise Butler’s invest-\nment advisory activities when he was trading in the accounts\nof their customers but allegedly failed to do so. Additionally,\nButler had an agreement with TD Ameritrade through which\nButler could use its online trading platform to execute all\ntrades in his clients’ accounts. TD Ameritrade also allegedly\nfailed to properly supervise Butler’s activity. Finally, Wiscon-\nsin River Bank referred clients to Butler, who in turn compen-\nsated the bank for these referrals. Nielen-Thomas alleges the\nbank owed its clients a duty of care in recommending invest-\nment advisors to them, and it breached that duty by recom-\nmending Butler.\n\f4 No. 18-2875\n\n In her class-action complaint, Nielen-Thomas brought\nnine state-law claims on behalf of the putative class, alleging\nbreaches of Wisconsin and Nebraska securities laws, breach\nof Wisconsin’s “fraudulent representations” statute, and com-\nmon law violations under both Wisconsin and Nebraska law\nfor breach of contract, fraud, negligence, failure to supervise,\nand breach of fiduciary duty. 2 According to the complaint,\n“[w]hile the exact number of putative Class members cannot\nbe determined yet, upon information and belief, the putative\nClass consists of at least 35, but no more than 49 members.”\n On March 30, 2018, defendants removed the case to the\nWestern District of Wisconsin pursuant to SLUSA, 15 U.S.C.\n§ 78bb(f)(2). After removal, defendants Fortune, TD Ameri-\ntrade, and Concorde 3 moved to dismiss Nielen-Thomas’s\nnine state-law claims as barred by the Private Securities Liti-\ngation Reform Act of 1995 (“PSLRA”), 15 U.S.C. §§ 77, 78, and\nSLUSA. Specifically, defendants argued this suit qualified as\na “covered class action” that was both removable and pre-\ncluded by SLUSA. Nielen-Thomas opposed these motions\nand sought to remand the case because, she argued, her case\ndid not fall within SLUSA’s ambit; she claimed that because\nher proposed class contained fewer than fifty members, it\ncould not be a “covered class action” as defined by the statute.\n\n\n\n 2 Nielen-Thomas also brought a tenth class claim for breach of the Se-\ncurities Act of 1933. The district court dismissed it with prejudice for fail-\nure to state a claim. Nielen-Thomas does not appeal this aspect of the dis-\ntrict court’s decision.\n 3Nielen-Thomas voluntarily dismissed Butler as a defendant. Alt-\nhough Butler’s firm, Wisconsin Investment Services, is technically still a\ndefendant, it has no assets and is not involved with this appeal.\n\fNo. 18-2875 5\n\n On July 26, 2018, the district court denied Nielen-\nThomas’s motion to remand and granted defendants’ motion\nto dismiss. The court noted that SLUSA’s language was “con-\nfusing,” but concluded its “legislative history clears things\nup”—the lawsuit was not a covered class action under\n15 U.S.C. § 78bb(f)(5)(B)(i)(I) because her proposed class had\nfewer than fifty members, but her lawsuit met SLUSA’s defi-\nnition of a “covered class action” in 15 U.S.C.\n§ 78bb(f)(5)(B)(i)(II) because she brought her action on behalf\nof unnamed parties in a representative capacity. SLUSA thus\nprecluded her state-law claims, and the district court dis-\nmissed them with prejudice. Nielen-Thomas appeals.\n II. Discussion\n At issue is the district court’s denial of Nielen-Thomas’s\nmotion to remand and its grant of defendants’ motions to dis-\nmiss based on its interpretation of SLUSA’s “covered class ac-\ntion” definition. We review the district court’s interpretation\nof a statute de novo. United States v. Rosenbohm, 564 F.3d 820,\n822 (7th Cir. 2009).\n When confronting an issue of statutory interpretation, we\nmust always begin with the text and “give effect to the clear\nmeaning of statutes as written.” Star Athletica, L.L.C. v. Varsity\nBrands, Inc., 137 S. Ct. 1002, 1010 (2017) (quoting Estate of Cow-\nart v. Nicklos Drilling Co., 505 U.S. 469, 476 (1992)). If the text\nis clear, we can end our inquiry here as well. Id. We also read\na statute “as a whole” rather than “as a series of unrelated and\nisolated provisions.” Arreola-Castillo v. United States, 889 F.3d\n378, 386 (7th Cir. 2018) (first quoting King v. St. Vincent’s Hosp.,\n502 U.S. 215, 221 (1991), then quoting Gonzales v. Oregon, 546\nU.S. 243, 273 (2006)). Words are given “their ordinary and nat-\nural meaning” in the absence of a specific statutory definition.\n\f6 No. 18-2875\n\nCFTC v. Worth Bullion Grp., Inc., 717 F.3d 545, 550 (7th Cir.\n2013) (quoting Scherr v. Marriott Int’l, Inc., 703 F.3d 1069, 1077\n(7th Cir. 2013)). We must also, if possible, give effect to “every\nclause and word” of a statute, taking care not to read words\ninto the text or to treat any words as surplusage. Duncan v.\nWalker, 533 U.S. 167, 174 (2001) (quoting United States v.\nMenasche, 348 U.S. 528, 538–39 (1955)); Water Quality Ass’n\nEmps.’ Benefit Corp. v. United States, 795 F.2d 1303, 1309 (7th\nCir. 1986).\n Regarding SLUSA’s language specifically, “Congress en-\nvisioned a broad construction” of the statute, which “follows\nnot only from ordinary principles of statutory construction\nbut also from the particular concerns that culminated in\nSLUSA’s enactment.” Merrill Lynch, Pierce, Fenner & Smith Inc.\nv. Dabit, 547 U.S. 71, 86 (2006). SLUSA amends the Securities\nAct of 1933 and the Securities Exchange Act of 1934, both of\nwhich regulate federal securities “to promote honest practices\nin the securities market.” Cyan, Inc. v. Beaver Cty. Emps. Ret.\nFund, 138 S. Ct. 1061, 1066 (2018). Congress had previously\namended these two laws when it passed the PSLRA in 1995,\n“principally to stem ‘perceived abuses of the class-action ve-\nhicle in litigation involving nationally traded securities.’” Id.\n(quoting Dabit, 547 U.S. at 81). Specifically, “nuisance filings,\ntargeting of deep-pocket defendants, vexatious discovery re-\nquests, and manipulation by class action lawyers of the clients\nwhom they purportedly represent had become rampant,”\nsuch that abusive class-action litigation was injuring “the en-\ntire U.S. economy.” Dabit, 547 U.S. at 81 (citation and internal\nquotation marks omitted). Congress sought to curb these\nabuses through the PSLRA by imposing burdens on plaintiffs\nwho sought to bring federal securities fraud class actions, in-\ncluding by limiting recoverable damages and attorney’s fees\n\fNo. 18-2875 7\n\nand by mandating sanctions for frivolous litigation. Id. at 81–\n82.\n The PSLRA made it harder to bring a federal securities\nclass action; an unintended consequence of its enactment,\nthough, was that plaintiffs tried to escape the law’s con-\nstraints by “bringing class actions under state law, often in\nstate court,” rather than under federal law in federal court. Id.\nat 82. To “prevent plaintiffs from circumventing the [PSLRA]”\nin this manner, Cyan, 138 S. Ct. at 1067, Congress enacted the\nSLUSA amendments in 1998.\n SLUSA precludes specified securities class actions from\nproceeding under state law. Specifically, “[n]o covered class\naction based upon the statutory or common law of any State\nor subdivision thereof may be maintained in any State or Fed-\neral court by any private party” if that party alleges either “a\nmisrepresentation or omission of a material fact in connection\nwith the purchase or sale of a covered security” 4 or “that the\ndefendant used or employed any manipulative or deceptive\ndevice or contrivance in connection with the purchase or sale\nof a covered security.” 15 U.S.C. § 78bb(f)(1). Moreover, “[i]f\nsuch a suit is brought in a state court the defendant can re-\nmove it to federal court and move to dismiss it … [and] the\ndistrict judge must grant the motion.” Brown v. Calamos, 664\nF.3d 123, 124–25 (7th Cir. 2011) (citing 15 U.S.C. § 78bb(f)(2)). 5\n\n\n\n\n 4A “covered security” is “a security traded nationally and listed on a\nregulated national exchange.” Brown v. Calamos, 664 F.3d 123, 124 (7th Cir.\n2011) (citing 15 U.S.C. § 78bb(f)(5)(E)).\n 5 Although some case law refers to SLUSA preemption rather than\npreclusion, SLUSA “does not itself displace state law with federal law but\n\f8 No. 18-2875\n\n Nielen-Thomas does not dispute that her class action\nclaims are based on state law, involve a covered security, and\nallege misrepresentations “in connection with the purchase or\nsale of” that covered security. Instead, she maintains her law-\nsuit is not precluded by SLUSA because it is not a “covered\nclass action” as that term is defined.\n Under SLUSA, a “single lawsuit” qualifies as a “covered\nclass action” when (subject to certain exceptions not applica-\nble here):\n (I) damages are sought on behalf of more than\n 50 persons or prospective class members,\n and questions of law or fact common to\n those persons or members of the prospective\n class, without reference to issues of individ-\n ualized reliance on an alleged misstatement\n or omission, predominate over any ques-\n tions affecting only individual persons or\n members; or\n (II) one or more named parties seek to recover\n damages on a representative basis on behalf\n of themselves and other unnamed parties\n similarly situated, and questions of law or\n fact common to those persons or members of\n the prospective class predominate over any\n questions affecting only individual persons\n or members … .\n\n\n\nmakes some state-law claims nonactionable through the class-action de-\nvice in federal as well as state court.” Kircher v. Putnam Funds Tr., 547 U.S.\n633, 636 n.1 (2006).\n\fNo. 18-2875 9\n\n15 U.S.C. § 78bb(f)(5)(B)(i). 6 Subparagraph (I) and Subpara-\ngraph (II) in this definition are separated by “or.” An “or” in\na statute is usually disjunctive, see United States v. Woods, 571\nU.S. 31, 45 (2013), meaning a lawsuit can satisfy SLUSA’s\n“covered class action” requirement via either subparagraph.\n Subparagraph (I) provides three criteria for a single law-\nsuit to qualify as a covered class action: (1) damages are\nsought, (2) on behalf of more than fifty “persons or prospec-\ntive class members,” and (3) common questions of law or fact\npredominate “without reference to issues of individualized\nreliance on an alleged misstatement or omission.” Because\nthis subparagraph includes the “prospective class members”\nlanguage, some class actions (as that term is traditionally un-\nderstood) must fall within its scope. See, e.g., Class Action,\nBlack’s Law Dictionary (10th ed. 2014) (“A lawsuit in which\nthe court authorizes a single person or a small group of people\nto represent the interests of a larger group.”); Fed. R. Civ. P.\n23(a) (defining class actions as ones where “[o]ne or more\nmembers of a class may sue or be sued as representative par-\nties on behalf of all members”). Specifically, class actions with\nmore than fifty prospective class members meet this defini-\ntion.\n Subparagraph (II) also includes three criteria for a single\nlawsuit to qualify: (1) damages are sought, (2) by “one or\nmore named parties” who seek to recover such damages “on\n\n\n 6 SLUSA also includes a definition of “covered class action” that ap-\nplies to “any group of lawsuits filed in or pending in the same court” in\nwhich “damages are sought on behalf of more than 50 persons” and “the\nlawsuits are joined, consolidated, or otherwise proceed as a single action\nfor any purpose.” 15 U.S.C. § 78bb(f)(5)(B)(ii).\n\f10 No. 18-2875\n\na representative basis on behalf of themselves and other un-\nnamed parties similarly situated,” and (3) common questions\nof law or fact predominate. This subparagraph must also\nreach class actions because its definition includes suits\nbrought by named parties “on a representative basis.”\n Although there is overlap between the two, each subpara-\ngraph has a separate meaning. Subparagraph (I) includes in\nits scope all actions brought by groups of more than fifty “pro-\nspective class members,” so class actions of the requisite size\ncan be covered under this definition. But this subparagraph\nalso includes single lawsuits brought by groups of more than\nfifty “persons” without any “prospective” or “representative”\ncaveat on their plaintiff status. In other words, a lawsuit may\nbe treated as a class action even if all plaintiffs are identified\nin the complaint and no plaintiff is pursuing claims as a rep-\nresentative on behalf of others, if there are more than fifty\nsuch plaintiffs and SLUSA’s other requirements are met. 7\n Subparagraph (II)’s language includes all actions in which\none named plaintiff seeks to recover damages “on a repre-\nsentative basis on behalf of themselves and other unnamed\nparties similarly situated.” By its plain and unambiguous\n\n\n 7 Subparagraph (I) also includes a caveat to its commonality require-\nment: common questions of law or fact must predominate “without refer-\nence to issues of individualized reliance on an alleged misstatement or\nomission.” § 78bb(f)(5)(B)(i)(I). If over fifty plaintiffs are identified in an\naction, they could attempt to evade treatment as a class action, and SLUSA\npreclusion, by pointing to the fact of each plaintiff’s reliance, which would\nnecessarily require an individualized inquiry. See, e.g., Basic Inc. v. Levin-\nson, 485 U.S. 224, 242–43 (1988). But Subparagraph (I) prevents that from\nhappening by removing the reliance issue from the commonality analysis.\nIt can therefore reach actions that are not “class actions” in the usual sense.\n\fNo. 18-2875 11\n\nterms, it includes any action brought as a putative class action\nin the traditional Rule 23 meaning of the term. And because\nthis subparagraph contains no fifty-person threshold as (I)\ndoes, Subparagraph (II) includes all putative class actions that\notherwise meet the relevant requirements in its scope, regard-\nless of this proposed class’s size.\n This reading of the “covered class action” definition for\nsingle lawsuits still includes some overlap in the scope of each\nsubparagraph; a putative class action in which the proposed\nclass exceeds fifty members could be “covered” under both\nSubparagraph (I) and Subparagraph (II). But this redundancy\nis not unusual or problematic. See Conn. Nat’l Bank v. Germain,\n503 U.S. 249, 253 (1992). More importantly, this reading gives\nseparate effect to both subparagraphs so that each covers\nsomething the other does not. See Hibbs v. Winn, 542 U.S. 88,\n101 (2004) (“A statute should be construed so that effect is\ngiven to all its provisions, so that no part will be inoperative\nor superfluous, void or insignificant.” (citation omitted)).\nSubparagraph (I) includes lawsuits that, while not “class ac-\ntions” in that no plaintiff seeks damages as a representative,\nidentify more than fifty plaintiffs. And Subparagraph (II) in-\ncludes all putative class actions with fifty or fewer proposed\nclass members. 8\n\n\n 8 No other circuit has directly opined on the difference between Sub-\nparagraphs (I) and (II). The Second and Eighth Circuits have, however,\nreferenced SLUSA’s definition of a covered class action in a way that sup-\nports our interpretation. See In re Kingate Mgmt. Ltd. Litig., 784 F.3d 128,\n138 n.16 (2d Cir. 2015) (“‘[C]overed class action’ includes, with certain ex-\nceptions, class actions seeking damages on behalf of unidentified plain-\ntiffs, class actions seeking damages on behalf of more than 50 identified\npersons, and [group lawsuits].”); Green v. Ameritrade, Inc., 279 F.3d 590,\n596 n.4 (8th Cir. 2002) (“A covered class action is any suit brought by a\n\f12 No. 18-2875\n\n While the plain language of each subparagraph of\n§ 78bb(f)(5)(B)(i) is clear, such that we do not need to resort to\nconsidering SLUSA’s legislative history to aid in our inquiry,\nthis history is consistent with our interpretation. See Gustafson\nv. Alloyd Co. Inc., 513 U.S. 561, 580 (1995); see also Cyan, 138 S.\nCt. at 1072 (addressing petitioner’s interpretive arguments\nbased on SLUSA’s legislative history). The House Report ac-\ncompanying SLUSA explains that the “covered class action”\ndefinition includes: “actions brought on behalf of more than\n50 persons, actions brought on behalf of one or more un-\nnamed parties, and so-called ‘mass actions,’ in which a group\nof lawsuits filed in the same court are joined or otherwise pro-\nceed as a single action.” H.R. Rep. 105-640, at 9 (1998). This\nexplanation separates the types of “covered class actions” that\nSLUSA precludes in a way that mirrors how they appear in\nthe statute. Actions brought on behalf of more than fifty per-\nsons are covered by Subparagraph (I), actions brought on be-\nhalf of unnamed parties are covered by Subparagraph (II),\nand actions brought as groups of lawsuits in the same court\nare covered by the “group lawsuit” definition in\n§ 78bb(f)(5)(B)(ii). See also H.R. Conf. Rep. 105-803, at 13 (1998)\n(using identical language to explain the “covered class action”\ndefinition).\n The Senate Report also explains the “covered class action”\ndefinition in SLUSA. Regarding Subparagraph (I), it states\nthat this portion of the definition “provides that any single\n\n\nclass of more than 50 persons, or by one or more named parties acting as\nclass representatives, and where ‘questions of law or fact common to those\npersons or members of the prospective class predominate over any ques-\ntions affecting only individual persons or members.’” (quoting 15 U.S.C.\n§ 78bb(f)(5)(B)(i)(II))).\n\fNo. 18-2875 13\n\nlawsuit is treated as a class action if it seeks damages on behalf\nof more than fifty persons and questions of law or fact com-\nmon to the prospective class predominate, without regard to\nquestions of individualized reliance.” S. Rep. 105-182, at 7\n(1998) (emphasis added). It also references Subparagraph (II),\nnoting that it “provides a definition that closely tracks the rel-\nevant provisions of Rule 23 of the Federal Rules of Civil Pro-\ncedure in which a suit is brought by representative plaintiffs\non behalf of themselves and other unnamed parties.” Id. To-\ngether, these explanations of the “covered class action” defi-\nnition in SLUSA envision the same distinction between Sub-\nparagraphs (I) and (II) that is reflected in the statute’s text.\n Applying this interpretation here demonstrates that\nNielen-Thomas cannot proceed with her state-law claims. 9\nShe calls her filing a “Class Action Complaint” and brings her\nclaims “individually and on behalf of all others similarly sit-\nuated.” She specifically pleads that “common questions of\nlaw and fact exist as to all members of the putative Class and\nSub-Classes,” she seeks damages from defendants, and she\nproposes a class of between thirty-five and forty-nine mem-\nbers. Because her proposed class contains fewer than fifty per-\nsons, her lawsuit is not a covered class action under Subpara-\ngraph (I). However, because she seeks to recover damages on\na representative basis, her lawsuit is a covered class action un-\nder Subparagraph (II). SLUSA therefore precludes her state-\nlaw claims, and the district court was correct to both remove\nthe case from state court and dismiss the state-law claims.\n\n\n 9 We can assume the truth of Nielen-Thomas’s well-pleaded factual\nallegations at this stage without first considering whether a class could be\ncertified. See Brown, 664 F.3d at 125.\n\f14 No. 18-2875\n\n An obvious implication of our § 78bb(f)(5)(B)(i)(I)–(II) in-\nterpretation is that no putative securities class actions that are\nbased on state law and otherwise meet SLUSA’s requirements\n(they involve a covered security, allege a misrepresentation in\nconnection with that security, etc.) can proceed in either fed-\neral or state court under SLUSA. Nielen-Thomas argues this\nsweeps too broadly; she says the legislative history for SLUSA\nindicates Congress only intended to preclude “certain” state\nactions, but not all of them. See H.R. Conf. Rep. 105-803, at 2\n(“[T]o prevent certain State private securities class action law-\nsuits alleging fraud from being used to frustrate the objectives\nof the [PSLRA], it is appropriate to enact national standards\nfor securities class action lawsuits involving nationally traded\nsecurities.” (emphasis added)). But it makes sense that Con-\ngress would preclude all actions brought using the class-ac-\ntion device, not just classes alleged to include more than fifty\npeople, when we again consider SLUSA’s enactment history\nand legislative purpose. 10\n Congress passed these amendments to combat a specific\nproblem—litigants were attempting to circumvent the\nPSLRA’s barriers to federal securities class actions by filing\ntheir class actions under state law instead. Cyan, 138 S. Ct. at\n1067. To that end, SLUSA sought “to limit the conduct of se-\ncurities class actions under State law.” SLUSA, 112 Stat 3227.\n\n\n 10Furthermore, Congress did create some exceptions to SLUSA’s re-\nquirements, in § 78bb(f)(3), so not all class actions are covered. For exam-\nple, SLUSA’s preclusion and removal provisions specifically exclude class\nactions comprised solely of states and other political subdivisions. See\n15 U.S.C. § 78bb(f)(3)(B). Derivative actions are also excluded. See id.\n§ 78bb(f)(5)(C). Certain state securities class actions can go forward under\nSLUSA, just not those brought by a private party on a representative basis.\n\fNo. 18-2875 15\n\nThe Supreme Court has consistently underscored this pur-\npose of the amendments. See, e.g., Cyan, 138 S. Ct. at 1072\n(SLUSA “preclude[s] certain vexing state-law class actions”\n(quoting Kircher v. Putnam Funds Tr., 547 U.S. 633, 645 n.12\n(2006))). This purpose could be easily frustrated if plaintiffs\nbringing a state-law securities class action could simply allege\nthat they represented a class of no more than fifty people. If\nSLUSA did not bar all putative class actions, such suits could\nproceed through the courts until discovery identified the en-\ntire class of plaintiffs. At that point, the actual class could in-\nclude more than fifty persons, and by that time the abuses that\nthe PSLRA sought to prevent would have already taken place.\nCf. Holtz v. JPMorgan Chase Bank, N.A., 846 F.3d 928, 930 (7th\nCir. 2017) (SLUSA was designed to prevent “artful pleading”\nto “evade limits on securities litigation that are designed to\nblock frivolous or abusive suits.”). The plain language of\n§ 78bb(f)(5)(B)(i) gives effect to SLUSA’s purpose and pre-\nvents that from happening by including all putative class ac-\ntions, subject to § 78bb(f)(3)’s exceptions, in its covered class\naction definition.\n Nielen-Thomas also proposes two alternative interpreta-\ntions of SLUSA’s “covered class action” definition. Under ei-\nther one, her case would not be included in SLUSA’s preclu-\nsive scope because her proposed class is alleged to contain\nfewer than fifty members. However, both of these proposed\ninterpretations run contrary to the statutory text.\n First, Nielen-Thomas says Subparagraphs (I) and (II) are\n“separate, independent bases for excluding securities class ac-\ntions from SLUSA’s proscriptions.” By this reading, if a pro-\nposed putative class contains fewer than fifty people, it is ex-\n\f16 No. 18-2875\n\nempted under Subparagraph (I) without the need to go fur-\nther and consider whether Subparagraph (II) might also ap-\nply. This interpretation completely reads Subparagraph (II)\nout of the statute, though, and we do not read statutes in ways\nthat make entire provisions superfluous. See Hibbs, 542 U.S. at\n101. As previously discussed, the definition of “covered class\naction” for single lawsuits includes two subparagraphs sepa-\nrated by a disjunctive “or.” A single lawsuit can therefore be\na covered class action under either section, and our analysis\ncannot stop after determining that a lawsuit does not meet the\ncriteria set out in Subparagraph (I).\n Alternatively, Nielen-Thomas claims the fifty-person\nthreshold identified in Subparagraph (I) must also apply to\nSubparagraph (II) to avoid making the former superfluous.\nThis interpretation is similarly untenable; it attempts to read\nwords from one part of the statute into another part where\nthey do not appear, contravening the plain text. See Water\nQuality Ass’n, 795 F.2d at 1309. By including the fifty-person\nthreshold in Subparagraph (I) but omitting it from (II), Con-\ngress must have intended that it would only apply to (I). See\nDig. Realty Tr., Inc. v. Somers, 138 S. Ct. 767, 777 (2018)\n(“[W]hen Congress includes particular language in one sec-\ntion of a statute but omits it in another[,]” we presume “that\nCongress intended a difference in meaning.” (alterations in\noriginal) (quoting Loughrin v. United States, 573 U.S. 351, 358\n(2014))). Indeed, Congress also included the fifty-person\nthreshold in the group lawsuit “covered class action” defini-\ntion in § 78bb(f)(5)(B)(ii), directly below § 78bb(f)(5)(B)(i),\nwhile excluding it from Subparagraph (II). We cannot rewrite\nthe statute that Congress has written to impute the fifty-per-\nson threshold where it does not appear.\n\fNo. 18-2875 17\n\n Nielen-Thomas argues these interpretations find support\nin statements by both the Supreme Court and Seventh Circuit\nindicating that class actions brought on behalf of fewer than\nfifty persons are not covered by SLUSA. See, e.g., Cyan, 138 S.\nCt. at 1067 (“According to SLUSA’s definitions, the term ‘cov-\nered class action’ means a class action in which ‘damages are\nsought on behalf of more than 50 persons.’” (quoting 15 U.S.C.\n§ 77p(f)(2))); Chadbourne & Parke LLP v. Troice, 571 U.S. 377,\n380 (2014) (SLUSA “forbids the bringing of large securities\nclass actions based upon violations of state law” and “does\nnot apply to class actions with fewer than 51 ‘persons or pro-\nspective class members’” (quoting 15 U.S.C. § 78bb(f)(5)(B));\nDabit, 547 U.S. at 83 (“A ‘covered class action’ is a lawsuit in\nwhich damages are sought on behalf of more than 50 peo-\nple.”); Holtz, 846 F.3d at 934 (stating, near conclusion of opin-\nion, that SLUSA “is limited to ‘covered class actions,’ which\nmeans that [plaintiff] could litigate for herself and as many as\n49 other customers”); Brown, 664 F.3d at 124 (SLUSA “prohib-\nits securities class actions if the class has more than 50 mem-\nbers”).\n These statements appear, in isolation, to support Nielen-\nThomas; they reference only the fifty-person threshold from\nSubparagraph (I) and suggest that only “sizable” class actions\npursued on a representative basis are within SLUSA’s scope.\nBut in context, it is clear neither the Supreme Court nor this\nCircuit is making any interpretive statement regarding the\nscope of the “covered class action” definition because that\nwas not the issue these cases addressed. See Cyan, 138 S. Ct. at\n1066 (issue was whether SLUSA stripped state courts of juris-\ndiction over class actions involving 1933 Act violations, and\ninvestors did not dispute their class action would be “cov-\nered”); Chadbourne & Parke, 571 U.S. at 381 (Court considered\n\f18 No. 18-2875\n\nwhether SLUSA encompassed a class action in which plain-\ntiffs alleged they purchased uncovered securities that were\nfalsely presented to them as “covered” securities); Dabit, 547\nU.S. at 83–84 (plaintiff did not dispute the class was covered\nunder SLUSA, and the issue before the Court involved the “in\nconnection with” requirement); Holtz, 846 F.3d at 930 (issue\nwas whether plaintiff’s contract and fiduciary claims neces-\nsarily involved an “omission of a material fact” to implicate\nSLUSA); Brown, 664 F.3d at 125 (court addressed whether the\nplaintiff’s complaint alleged a misrepresentation or omission\nof a material fact in connection with the purchase or sale of a\ncovered security).\n The Supreme Court and the Seventh Circuit in these cases\ndid not have the opportunity or need to opine on the contexts\nin which Subparagraphs (I) or (II) could apply. Thus, all of\nthese statements defining “covered class action” solely in re-\nlation to the fifty-person requirement in Subparagraph (I) are\nmerely dicta rather than an interpretation of SLUSA that we\nare bound to follow. Cf. In re Air Crash Disaster Near Chi., Ill.\non May 25, 1979, 701 F.2d 1189, 1196 (7th Cir. 1983) (casual\ndicta of a state supreme court, as opposed to considered dicta,\n“has little precedential weight”). Instead, the plain text of\nSLUSA’s “covered class action” definition governs, and pur-\nsuant to this unambiguous text, Nielen-Thomas’s lawsuit is a\ncovered class action.\n In sum, SLUSA’s definition of “covered class action” un-\nambiguously precludes Nielen-Thomas’s suit. She is a named\nplaintiff seeking to bring claims on a representative basis and\nalleges that common questions of law or fact predominate.\nThus, § 78bb(f)(5)(B)(i)(II) applies, the suit is a covered class\n\fNo. 18-2875 19\n\naction, and SLUSA precludes it from proceeding in both state\nand federal court.\n To the extent the identities of any of the other putative\nclass members are known, and these individuals wish to pur-\nsue claims on their own behalf in state court under state law,\nnothing in SLUSA prevents them from doing so (provided\nthere are fewer than fifty such plaintiffs for which common\nquestions of law or fact predominate). What SLUSA does pre-\nclude these individuals from doing is continuing to pursue\ntheir claims in the form of a class action. 11\n III. Conclusion\n For the foregoing reasons, we AFFIRM the judgment of the\ndistrict court.\n\n\n\n\n 11 The district court dismissed Nielen-Thomas’s state-law class claims\n\nwith prejudice. In her reply brief, Nielen-Thomas argues for the first time\nthat even if her action is covered under Subparagraph (II), the Court\nshould still remand with directions to dismiss without prejudice instead\nbecause she should be given the opportunity to join other named plaintiffs\nto her own individual claims. Because Nielen-Thomas waited to raise this\nchallenge until her reply brief, she has waived it. See United States v. Price,\n906 F.3d 685, 690 (7th Cir. 2018).", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4361519/", "author_raw": "Joel Martin Flaum"}]}	FLAUM	KANNE	HAMILTON	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4584266/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Susan NIELEN-THOMAS, Plaintiff-Appellant, v. CONCORDE INVESTMENT SERVICES, LLC, Et Al., Defendants-Appellees.\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-24\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-2875\nSUSAN NIELEN-THOMAS,\n Plaintiff-Appellant,\n v.\n\nCONCORDE INVESTMENT SERVICES, LLC, et al.,\n Defendants-Appellees.\n ____________________\n\n Appeal from the United States District Court for the\n Western District of Wisconsin.\n No. 18-cv-00229 — James D. Peterson, Chief District Judge.\n ____________________\n\n ARGUED JANUARY 15, 2019 — DECIDED JANUARY 24, 2019\n ____________________\n\n Before FLAUM, KANNE, and HAMILTON, Circuit Judges.\n FLAUM, Circuit Judge. Susan Nielen-Thomas, on behalf of\nherself and others similarly situated, filed a complaint in Wis-\nconsin state court alleging she and other class members were\ndefrauded by their investment advisor. Defendants removed\nthe case to federal court. They then argued the action should\nbe dismissed because it was a “covered class action” pre-\ncluded by the Securities Litigation Uniform Standards Act of\n1998 (“SLUSA”). See 15 U.S.C. § 78bb(f)(1), (f)(5)(B), amending\n\f2 No. 18-2875\n\nSecurities Exchange Act of 1934. 1 According to Nielen-\nThomas, her lawsuit did not meet SLUSA’s “covered class ac-\ntion” definition because she alleged a proposed class with\nfewer than fifty members. See § 78bb(f)(5)(B)(i)(I). The district\ncourt agreed with defendants that Nielen-Thomas’s suit was\na “covered class action” because she brought her claims in a\nrepresentative capacity, see § 78bb(f)(5)(B)(i)(II), and it dis-\nmissed her claims with prejudice.\n We hold that the plain language of SLUSA’s “covered\nclass action” definition includes any class action brought by a\nnamed plaintiff on a representative basis, regardless of the\nproposed class size. Because this includes Nielen-Thomas’s\nclass action lawsuit and her complaint meets all other statu-\ntory requirements, her lawsuit is precluded by SLUSA. We af-\nfirm the judgment of the district court.\n I. Background\n On February 5, 2018, plaintiff-appellant Nielen-Thomas\nfiled a putative class action in Wisconsin state court against\ndefendants-appellees Concorde Investment Services, LLC,\nFortune Financial Services, Inc., TD Ameritrade, Inc., Wiscon-\nsin River Bank, Jeffrey L. Butler, and Wisconsin Investment\nServices LLC. The class includes retail clients of Butler and his\ninvestment advisory firm, Wisconsin Investment Services.\nAccording to the complaint, Butler exercised control of his cli-\nents’ accounts and owed them a fiduciary duty to act in their\nbest interests. Butler allegedly failed to properly manage\nthese accounts, though, leading to huge losses.\n\n 1See also 15 U.S.C. § 77p(b), (f)(2) (amending Securities Act of 1933 in\nan identical way). The parties cite solely to the 1934 Act amendments, so\nwe do the same in this opinion unless otherwise noted.\n\fNo. 18-2875 3\n\n Nielen-Thomas identifies two ways Butler mismanaged\naccounts. First, Butler promised to create individualized port-\nfolios for each investor; instead, he subjected his clients to\nblock trades that lacked asset allocation and diversification\nsuitable for retail investors. Second, Butler repeatedly pur-\nchased and sold on behalf of his clients an exchange-traded\nnote known as VXX. VXX is an unsecured debt instrument\ndesigned to track the movement of futures on an index that\nmeasures overall market volatility. This note is inherently vol-\natile and risky, and it is designed to be used as a hedge by\nsophisticated investors only on a short-term basis. However,\nButler repeatedly purchased and sold VXX on behalf of his\nretail clients and let it sit in their accounts for months, even\nthough such a strategy was practically guaranteed to lose\nmoney.\n The other defendants are entities that Nielen-Thomas\nclaims are also responsible for Butler’s conduct. Butler was a\nregistered broker with Concorde from March 2012 to May\n2015 and with Fortune from July 2015 to December 2016. Con-\ncorde and Fortune were required to supervise Butler’s invest-\nment advisory activities when he was trading in the accounts\nof their customers but allegedly failed to do so. Additionally,\nButler had an agreement with TD Ameritrade through which\nButler could use its online trading platform to execute all\ntrades in his clients’ accounts. TD Ameritrade also allegedly\nfailed to properly supervise Butler’s activity. Finally, Wiscon-\nsin River Bank referred clients to Butler, who in turn compen-\nsated the bank for these referrals. Nielen-Thomas alleges the\nbank owed its clients a duty of care in recommending invest-\nment advisors to them, and it breached that duty by recom-\nmending Butler.\n\f4 No. 18-2875\n\n In her class-action complaint, Nielen-Thomas brought\nnine state-law claims on behalf of the putative class, alleging\nbreaches of Wisconsin and Nebraska securities laws, breach\nof Wisconsin’s “fraudulent representations” statute, and com-\nmon law violations under both Wisconsin and Nebraska law\nfor breach of contract, fraud, negligence, failure to supervise,\nand breach of fiduciary duty. 2 According to the complaint,\n“[w]hile the exact number of putative Class members cannot\nbe determined yet, upon information and belief, the putative\nClass consists of at least 35, but no more than 49 members.”\n On March 30, 2018, defendants removed the case to the\nWestern District of Wisconsin pursuant to SLUSA, 15 U.S.C.\n§ 78bb(f)(2). After removal, defendants Fortune, TD Ameri-\ntrade, and Concorde 3 moved to dismiss Nielen-Thomas’s\nnine state-law claims as barred by the Private Securities Liti-\ngation Reform Act of 1995 (“PSLRA”), 15 U.S.C. §§ 77, 78, and\nSLUSA. Specifically, defendants argued this suit qualified as\na “covered class action” that was both removable and pre-\ncluded by SLUSA. Nielen-Thomas opposed these motions\nand sought to remand the case because, she argued, her case\ndid not fall within SLUSA’s ambit; she claimed that because\nher proposed class contained fewer than fifty members, it\ncould not be a “covered class action” as defined by the statute.\n\n\n\n 2 Nielen-Thomas also brought a tenth class claim for breach of the Se-\ncurities Act of 1933. The district court dismissed it with prejudice for fail-\nure to state a claim. Nielen-Thomas does not appeal this aspect of the dis-\ntrict court’s decision.\n 3Nielen-Thomas voluntarily dismissed Butler as a defendant. Alt-\nhough Butler’s firm, Wisconsin Investment Services, is technically still a\ndefendant, it has no assets and is not involved with this appeal.\n\fNo. 18-2875 5\n\n On July 26, 2018, the district court denied Nielen-\nThomas’s motion to remand and granted defendants’ motion\nto dismiss. The court noted that SLUSA’s language was “con-\nfusing,” but concluded its “legislative history clears things\nup”—the lawsuit was not a covered class action under\n15 U.S.C. § 78bb(f)(5)(B)(i)(I) because her proposed class had\nfewer than fifty members, but her lawsuit met SLUSA’s defi-\nnition of a “covered class action” in 15 U.S.C.\n§ 78bb(f)(5)(B)(i)(II) because she brought her action on behalf\nof unnamed parties in a representative capacity. SLUSA thus\nprecluded her state-law claims, and the district court dis-\nmissed them with prejudice. Nielen-Thomas appeals.\n II. Discussion\n At issue is the district court’s denial of Nielen-Thomas’s\nmotion to remand and its grant of defendants’ motions to dis-\nmiss based on its interpretation of SLUSA’s “covered class ac-\ntion” definition. We review the district court’s interpretation\nof a statute de novo. United States v. Rosenbohm, 564 F.3d 820,\n822 (7th Cir. 2009).\n When confronting an issue of statutory interpretation, we\nmust always begin with the text and “give effect to the clear\nmeaning of statutes as written.” Star Athletica, L.L.C. v. Varsity\nBrands, Inc., 137 S. Ct. 1002, 1010 (2017) (quoting Estate of Cow-\nart v. Nicklos Drilling Co., 505 U.S. 469, 476 (1992)). If the text\nis clear, we can end our inquiry here as well. Id. We also read\na statute “as a whole” rather than “as a series of unrelated and\nisolated provisions.” Arreola-Castillo v. United States, 889 F.3d\n378, 386 (7th Cir. 2018) (first quoting King v. St. Vincent’s Hosp.,\n502 U.S. 215, 221 (1991), then quoting Gonzales v. Oregon, 546\nU.S. 243, 273 (2006)). Words are given “their ordinary and nat-\nural meaning” in the absence of a specific statutory definition.\n\f6 No. 18-2875\n\nCFTC v. Worth Bullion Grp., Inc., 717 F.3d 545, 550 (7th Cir.\n2013) (quoting Scherr v. Marriott Int’l, Inc., 703 F.3d 1069, 1077\n(7th Cir. 2013)). We must also, if possible, give effect to “every\nclause and word” of a statute, taking care not to read words\ninto the text or to treat any words as surplusage. Duncan v.\nWalker, 533 U.S. 167, 174 (2001) (quoting United States v.\nMenasche, 348 U.S. 528, 538–39 (1955)); Water Quality Ass’n\nEmps.’ Benefit Corp. v. United States, 795 F.2d 1303, 1309 (7th\nCir. 1986).\n Regarding SLUSA’s language specifically, “Congress en-\nvisioned a broad construction” of the statute, which “follows\nnot only from ordinary principles of statutory construction\nbut also from the particular concerns that culminated in\nSLUSA’s enactment.” Merrill Lynch, Pierce, Fenner & Smith Inc.\nv. Dabit, 547 U.S. 71, 86 (2006). SLUSA amends the Securities\nAct of 1933 and the Securities Exchange Act of 1934, both of\nwhich regulate federal securities “to promote honest practices\nin the securities market.” Cyan, Inc. v. Beaver Cty. Emps. Ret.\nFund, 138 S. Ct. 1061, 1066 (2018). Congress had previously\namended these two laws when it passed the PSLRA in 1995,\n“principally to stem ‘perceived abuses of the class-action ve-\nhicle in litigation involving nationally traded securities.’” Id.\n(quoting Dabit, 547 U.S. at 81). Specifically, “nuisance filings,\ntargeting of deep-pocket defendants, vexatious discovery re-\nquests, and manipulation by class action lawyers of the clients\nwhom they purportedly represent had become rampant,”\nsuch that abusive class-action litigation was injuring “the en-\ntire U.S. economy.” Dabit, 547 U.S. at 81 (citation and internal\nquotation marks omitted). Congress sought to curb these\nabuses through the PSLRA by imposing burdens on plaintiffs\nwho sought to bring federal securities fraud class actions, in-\ncluding by limiting recoverable damages and attorney’s fees\n\fNo. 18-2875 7\n\nand by mandating sanctions for frivolous litigation. Id. at 81–\n82.\n The PSLRA made it harder to bring a federal securities\nclass action; an unintended consequence of its enactment,\nthough, was that plaintiffs tried to escape the law’s con-\nstraints by “bringing class actions under state law, often in\nstate court,” rather than under federal law in federal court. Id.\nat 82. To “prevent plaintiffs from circumventing the [PSLRA]”\nin this manner, Cyan, 138 S. Ct. at 1067, Congress enacted the\nSLUSA amendments in 1998.\n SLUSA precludes specified securities class actions from\nproceeding under state law. Specifically, “[n]o covered class\naction based upon the statutory or common law of any State\nor subdivision thereof may be maintained in any State or Fed-\neral court by any private party” if that party alleges either “a\nmisrepresentation or omission of a material fact in connection\nwith the purchase or sale of a covered security” 4 or “that the\ndefendant used or employed any manipulative or deceptive\ndevice or contrivance in connection with the purchase or sale\nof a covered security.” 15 U.S.C. § 78bb(f)(1). Moreover, “[i]f\nsuch a suit is brought in a state court the defendant can re-\nmove it to federal court and move to dismiss it … [and] the\ndistrict judge must grant the motion.” Brown v. Calamos, 664\nF.3d 123, 124–25 (7th Cir. 2011) (citing 15 U.S.C. § 78bb(f)(2)). 5\n\n\n\n\n 4A “covered security” is “a security traded nationally and listed on a\nregulated national exchange.” Brown v. Calamos, 664 F.3d 123, 124 (7th Cir.\n2011) (citing 15 U.S.C. § 78bb(f)(5)(E)).\n 5 Although some case law refers to SLUSA preemption rather than\npreclusion, SLUSA “does not itself displace state law with federal law but\n\f8 No. 18-2875\n\n Nielen-Thomas does not dispute that her class action\nclaims are based on state law, involve a covered security, and\nallege misrepresentations “in connection with the purchase or\nsale of” that covered security. Instead, she maintains her law-\nsuit is not precluded by SLUSA because it is not a “covered\nclass action” as that term is defined.\n Under SLUSA, a “single lawsuit” qualifies as a “covered\nclass action” when (subject to certain exceptions not applica-\nble here):\n (I) damages are sought on behalf of more than\n 50 persons or prospective class members,\n and questions of law or fact common to\n those persons or members of the prospective\n class, without reference to issues of individ-\n ualized reliance on an alleged misstatement\n or omission, predominate over any ques-\n tions affecting only individual persons or\n members; or\n (II) one or more named parties seek to recover\n damages on a representative basis on behalf\n of themselves and other unnamed parties\n similarly situated, and questions of law or\n fact common to those persons or members of\n the prospective class predominate over any\n questions affecting only individual persons\n or members … .\n\n\n\nmakes some state-law claims nonactionable through the class-action de-\nvice in federal as well as state court.” Kircher v. Putnam Funds Tr., 547 U.S.\n633, 636 n.1 (2006).\n\fNo. 18-2875 9\n\n15 U.S.C. § 78bb(f)(5)(B)(i). 6 Subparagraph (I) and Subpara-\ngraph (II) in this definition are separated by “or.” An “or” in\na statute is usually disjunctive, see United States v. Woods, 571\nU.S. 31, 45 (2013), meaning a lawsuit can satisfy SLUSA’s\n“covered class action” requirement via either subparagraph.\n Subparagraph (I) provides three criteria for a single law-\nsuit to qualify as a covered class action: (1) damages are\nsought, (2) on behalf of more than fifty “persons or prospec-\ntive class members,” and (3) common questions of law or fact\npredominate “without reference to issues of individualized\nreliance on an alleged misstatement or omission.” Because\nthis subparagraph includes the “prospective class members”\nlanguage, some class actions (as that term is traditionally un-\nderstood) must fall within its scope. See, e.g., Class Action,\nBlack’s Law Dictionary (10th ed. 2014) (“A lawsuit in which\nthe court authorizes a single person or a small group of people\nto represent the interests of a larger group.”); Fed. R. Civ. P.\n23(a) (defining class actions as ones where “[o]ne or more\nmembers of a class may sue or be sued as representative par-\nties on behalf of all members”). Specifically, class actions with\nmore than fifty prospective class members meet this defini-\ntion.\n Subparagraph (II) also includes three criteria for a single\nlawsuit to qualify: (1) damages are sought, (2) by “one or\nmore named parties” who seek to recover such damages “on\n\n\n 6 SLUSA also includes a definition of “covered class action” that ap-\nplies to “any group of lawsuits filed in or pending in the same court” in\nwhich “damages are sought on behalf of more than 50 persons” and “the\nlawsuits are joined, consolidated, or otherwise proceed as a single action\nfor any purpose.” 15 U.S.C. § 78bb(f)(5)(B)(ii).\n\f10 No. 18-2875\n\na representative basis on behalf of themselves and other un-\nnamed parties similarly situated,” and (3) common questions\nof law or fact predominate. This subparagraph must also\nreach class actions because its definition includes suits\nbrought by named parties “on a representative basis.”\n Although there is overlap between the two, each subpara-\ngraph has a separate meaning. Subparagraph (I) includes in\nits scope all actions brought by groups of more than fifty “pro-\nspective class members,” so class actions of the requisite size\ncan be covered under this definition. But this subparagraph\nalso includes single lawsuits brought by groups of more than\nfifty “persons” without any “prospective” or “representative”\ncaveat on their plaintiff status. In other words, a lawsuit may\nbe treated as a class action even if all plaintiffs are identified\nin the complaint and no plaintiff is pursuing claims as a rep-\nresentative on behalf of others, if there are more than fifty\nsuch plaintiffs and SLUSA’s other requirements are met. 7\n Subparagraph (II)’s language includes all actions in which\none named plaintiff seeks to recover damages “on a repre-\nsentative basis on behalf of themselves and other unnamed\nparties similarly situated.” By its plain and unambiguous\n\n\n 7 Subparagraph (I) also includes a caveat to its commonality require-\nment: common questions of law or fact must predominate “without refer-\nence to issues of individualized reliance on an alleged misstatement or\nomission.” § 78bb(f)(5)(B)(i)(I). If over fifty plaintiffs are identified in an\naction, they could attempt to evade treatment as a class action, and SLUSA\npreclusion, by pointing to the fact of each plaintiff’s reliance, which would\nnecessarily require an individualized inquiry. See, e.g., Basic Inc. v. Levin-\nson, 485 U.S. 224, 242–43 (1988). But Subparagraph (I) prevents that from\nhappening by removing the reliance issue from the commonality analysis.\nIt can therefore reach actions that are not “class actions” in the usual sense.\n\fNo. 18-2875 11\n\nterms, it includes any action brought as a putative class action\nin the traditional Rule 23 meaning of the term. And because\nthis subparagraph contains no fifty-person threshold as (I)\ndoes, Subparagraph (II) includes all putative class actions that\notherwise meet the relevant requirements in its scope, regard-\nless of this proposed class’s size.\n This reading of the “covered class action” definition for\nsingle lawsuits still includes some overlap in the scope of each\nsubparagraph; a putative class action in which the proposed\nclass exceeds fifty members could be “covered” under both\nSubparagraph (I) and Subparagraph (II). But this redundancy\nis not unusual or problematic. See Conn. Nat’l Bank v. Germain,\n503 U.S. 249, 253 (1992). More importantly, this reading gives\nseparate effect to both subparagraphs so that each covers\nsomething the other does not. See Hibbs v. Winn, 542 U.S. 88,\n101 (2004) (“A statute should be construed so that effect is\ngiven to all its provisions, so that no part will be inoperative\nor superfluous, void or insignificant.” (citation omitted)).\nSubparagraph (I) includes lawsuits that, while not “class ac-\ntions” in that no plaintiff seeks damages as a representative,\nidentify more than fifty plaintiffs. And Subparagraph (II) in-\ncludes all putative class actions with fifty or fewer proposed\nclass members. 8\n\n\n 8 No other circuit has directly opined on the difference between Sub-\nparagraphs (I) and (II). The Second and Eighth Circuits have, however,\nreferenced SLUSA’s definition of a covered class action in a way that sup-\nports our interpretation. See In re Kingate Mgmt. Ltd. Litig., 784 F.3d 128,\n138 n.16 (2d Cir. 2015) (“‘[C]overed class action’ includes, with certain ex-\nceptions, class actions seeking damages on behalf of unidentified plain-\ntiffs, class actions seeking damages on behalf of more than 50 identified\npersons, and [group lawsuits].”); Green v. Ameritrade, Inc., 279 F.3d 590,\n596 n.4 (8th Cir. 2002) (“A covered class action is any suit brought by a\n\f12 No. 18-2875\n\n While the plain language of each subparagraph of\n§ 78bb(f)(5)(B)(i) is clear, such that we do not need to resort to\nconsidering SLUSA’s legislative history to aid in our inquiry,\nthis history is consistent with our interpretation. See Gustafson\nv. Alloyd Co. Inc., 513 U.S. 561, 580 (1995); see also Cyan, 138 S.\nCt. at 1072 (addressing petitioner’s interpretive arguments\nbased on SLUSA’s legislative history). The House Report ac-\ncompanying SLUSA explains that the “covered class action”\ndefinition includes: “actions brought on behalf of more than\n50 persons, actions brought on behalf of one or more un-\nnamed parties, and so-called ‘mass actions,’ in which a group\nof lawsuits filed in the same court are joined or otherwise pro-\nceed as a single action.” H.R. Rep. 105-640, at 9 (1998). This\nexplanation separates the types of “covered class actions” that\nSLUSA precludes in a way that mirrors how they appear in\nthe statute. Actions brought on behalf of more than fifty per-\nsons are covered by Subparagraph (I), actions brought on be-\nhalf of unnamed parties are covered by Subparagraph (II),\nand actions brought as groups of lawsuits in the same court\nare covered by the “group lawsuit” definition in\n§ 78bb(f)(5)(B)(ii). See also H.R. Conf. Rep. 105-803, at 13 (1998)\n(using identical language to explain the “covered class action”\ndefinition).\n The Senate Report also explains the “covered class action”\ndefinition in SLUSA. Regarding Subparagraph (I), it states\nthat this portion of the definition “provides that any single\n\n\nclass of more than 50 persons, or by one or more named parties acting as\nclass representatives, and where ‘questions of law or fact common to those\npersons or members of the prospective class predominate over any ques-\ntions affecting only individual persons or members.’” (quoting 15 U.S.C.\n§ 78bb(f)(5)(B)(i)(II))).\n\fNo. 18-2875 13\n\nlawsuit is treated as a class action if it seeks damages on behalf\nof more than fifty persons and questions of law or fact com-\nmon to the prospective class predominate, without regard to\nquestions of individualized reliance.” S. Rep. 105-182, at 7\n(1998) (emphasis added). It also references Subparagraph (II),\nnoting that it “provides a definition that closely tracks the rel-\nevant provisions of Rule 23 of the Federal Rules of Civil Pro-\ncedure in which a suit is brought by representative plaintiffs\non behalf of themselves and other unnamed parties.” Id. To-\ngether, these explanations of the “covered class action” defi-\nnition in SLUSA envision the same distinction between Sub-\nparagraphs (I) and (II) that is reflected in the statute’s text.\n Applying this interpretation here demonstrates that\nNielen-Thomas cannot proceed with her state-law claims. 9\nShe calls her filing a “Class Action Complaint” and brings her\nclaims “individually and on behalf of all others similarly sit-\nuated.” She specifically pleads that “common questions of\nlaw and fact exist as to all members of the putative Class and\nSub-Classes,” she seeks damages from defendants, and she\nproposes a class of between thirty-five and forty-nine mem-\nbers. Because her proposed class contains fewer than fifty per-\nsons, her lawsuit is not a covered class action under Subpara-\ngraph (I). However, because she seeks to recover damages on\na representative basis, her lawsuit is a covered class action un-\nder Subparagraph (II). SLUSA therefore precludes her state-\nlaw claims, and the district court was correct to both remove\nthe case from state court and dismiss the state-law claims.\n\n\n 9 We can assume the truth of Nielen-Thomas’s well-pleaded factual\nallegations at this stage without first considering whether a class could be\ncertified. See Brown, 664 F.3d at 125.\n\f14 No. 18-2875\n\n An obvious implication of our § 78bb(f)(5)(B)(i)(I)–(II) in-\nterpretation is that no putative securities class actions that are\nbased on state law and otherwise meet SLUSA’s requirements\n(they involve a covered security, allege a misrepresentation in\nconnection with that security, etc.) can proceed in either fed-\neral or state court under SLUSA. Nielen-Thomas argues this\nsweeps too broadly; she says the legislative history for SLUSA\nindicates Congress only intended to preclude “certain” state\nactions, but not all of them. See H.R. Conf. Rep. 105-803, at 2\n(“[T]o prevent certain State private securities class action law-\nsuits alleging fraud from being used to frustrate the objectives\nof the [PSLRA], it is appropriate to enact national standards\nfor securities class action lawsuits involving nationally traded\nsecurities.” (emphasis added)). But it makes sense that Con-\ngress would preclude all actions brought using the class-ac-\ntion device, not just classes alleged to include more than fifty\npeople, when we again consider SLUSA’s enactment history\nand legislative purpose. 10\n Congress passed these amendments to combat a specific\nproblem—litigants were attempting to circumvent the\nPSLRA’s barriers to federal securities class actions by filing\ntheir class actions under state law instead. Cyan, 138 S. Ct. at\n1067. To that end, SLUSA sought “to limit the conduct of se-\ncurities class actions under State law.” SLUSA, 112 Stat 3227.\n\n\n 10Furthermore, Congress did create some exceptions to SLUSA’s re-\nquirements, in § 78bb(f)(3), so not all class actions are covered. For exam-\nple, SLUSA’s preclusion and removal provisions specifically exclude class\nactions comprised solely of states and other political subdivisions. See\n15 U.S.C. § 78bb(f)(3)(B). Derivative actions are also excluded. See id.\n§ 78bb(f)(5)(C). Certain state securities class actions can go forward under\nSLUSA, just not those brought by a private party on a representative basis.\n\fNo. 18-2875 15\n\nThe Supreme Court has consistently underscored this pur-\npose of the amendments. See, e.g., Cyan, 138 S. Ct. at 1072\n(SLUSA “preclude[s] certain vexing state-law class actions”\n(quoting Kircher v. Putnam Funds Tr., 547 U.S. 633, 645 n.12\n(2006))). This purpose could be easily frustrated if plaintiffs\nbringing a state-law securities class action could simply allege\nthat they represented a class of no more than fifty people. If\nSLUSA did not bar all putative class actions, such suits could\nproceed through the courts until discovery identified the en-\ntire class of plaintiffs. At that point, the actual class could in-\nclude more than fifty persons, and by that time the abuses that\nthe PSLRA sought to prevent would have already taken place.\nCf. Holtz v. JPMorgan Chase Bank, N.A., 846 F.3d 928, 930 (7th\nCir. 2017) (SLUSA was designed to prevent “artful pleading”\nto “evade limits on securities litigation that are designed to\nblock frivolous or abusive suits.”). The plain language of\n§ 78bb(f)(5)(B)(i) gives effect to SLUSA’s purpose and pre-\nvents that from happening by including all putative class ac-\ntions, subject to § 78bb(f)(3)’s exceptions, in its covered class\naction definition.\n Nielen-Thomas also proposes two alternative interpreta-\ntions of SLUSA’s “covered class action” definition. Under ei-\nther one, her case would not be included in SLUSA’s preclu-\nsive scope because her proposed class is alleged to contain\nfewer than fifty members. However, both of these proposed\ninterpretations run contrary to the statutory text.\n First, Nielen-Thomas says Subparagraphs (I) and (II) are\n“separate, independent bases for excluding securities class ac-\ntions from SLUSA’s proscriptions.” By this reading, if a pro-\nposed putative class contains fewer than fifty people, it is ex-\n\f16 No. 18-2875\n\nempted under Subparagraph (I) without the need to go fur-\nther and consider whether Subparagraph (II) might also ap-\nply. This interpretation completely reads Subparagraph (II)\nout of the statute, though, and we do not read statutes in ways\nthat make entire provisions superfluous. See Hibbs, 542 U.S. at\n101. As previously discussed, the definition of “covered class\naction” for single lawsuits includes two subparagraphs sepa-\nrated by a disjunctive “or.” A single lawsuit can therefore be\na covered class action under either section, and our analysis\ncannot stop after determining that a lawsuit does not meet the\ncriteria set out in Subparagraph (I).\n Alternatively, Nielen-Thomas claims the fifty-person\nthreshold identified in Subparagraph (I) must also apply to\nSubparagraph (II) to avoid making the former superfluous.\nThis interpretation is similarly untenable; it attempts to read\nwords from one part of the statute into another part where\nthey do not appear, contravening the plain text. See Water\nQuality Ass’n, 795 F.2d at 1309. By including the fifty-person\nthreshold in Subparagraph (I) but omitting it from (II), Con-\ngress must have intended that it would only apply to (I). See\nDig. Realty Tr., Inc. v. Somers, 138 S. Ct. 767, 777 (2018)\n(“[W]hen Congress includes particular language in one sec-\ntion of a statute but omits it in another[,]” we presume “that\nCongress intended a difference in meaning.” (alterations in\noriginal) (quoting Loughrin v. United States, 573 U.S. 351, 358\n(2014))). Indeed, Congress also included the fifty-person\nthreshold in the group lawsuit “covered class action” defini-\ntion in § 78bb(f)(5)(B)(ii), directly below § 78bb(f)(5)(B)(i),\nwhile excluding it from Subparagraph (II). We cannot rewrite\nthe statute that Congress has written to impute the fifty-per-\nson threshold where it does not appear.\n\fNo. 18-2875 17\n\n Nielen-Thomas argues these interpretations find support\nin statements by both the Supreme Court and Seventh Circuit\nindicating that class actions brought on behalf of fewer than\nfifty persons are not covered by SLUSA. See, e.g., Cyan, 138 S.\nCt. at 1067 (“According to SLUSA’s definitions, the term ‘cov-\nered class action’ means a class action in which ‘damages are\nsought on behalf of more than 50 persons.’” (quoting 15 U.S.C.\n§ 77p(f)(2))); Chadbourne & Parke LLP v. Troice, 571 U.S. 377,\n380 (2014) (SLUSA “forbids the bringing of large securities\nclass actions based upon violations of state law” and “does\nnot apply to class actions with fewer than 51 ‘persons or pro-\nspective class members’” (quoting 15 U.S.C. § 78bb(f)(5)(B));\nDabit, 547 U.S. at 83 (“A ‘covered class action’ is a lawsuit in\nwhich damages are sought on behalf of more than 50 peo-\nple.”); Holtz, 846 F.3d at 934 (stating, near conclusion of opin-\nion, that SLUSA “is limited to ‘covered class actions,’ which\nmeans that [plaintiff] could litigate for herself and as many as\n49 other customers”); Brown, 664 F.3d at 124 (SLUSA “prohib-\nits securities class actions if the class has more than 50 mem-\nbers”).\n These statements appear, in isolation, to support Nielen-\nThomas; they reference only the fifty-person threshold from\nSubparagraph (I) and suggest that only “sizable” class actions\npursued on a representative basis are within SLUSA’s scope.\nBut in context, it is clear neither the Supreme Court nor this\nCircuit is making any interpretive statement regarding the\nscope of the “covered class action” definition because that\nwas not the issue these cases addressed. See Cyan, 138 S. Ct. at\n1066 (issue was whether SLUSA stripped state courts of juris-\ndiction over class actions involving 1933 Act violations, and\ninvestors did not dispute their class action would be “cov-\nered”); Chadbourne & Parke, 571 U.S. at 381 (Court considered\n\f18 No. 18-2875\n\nwhether SLUSA encompassed a class action in which plain-\ntiffs alleged they purchased uncovered securities that were\nfalsely presented to them as “covered” securities); Dabit, 547\nU.S. at 83–84 (plaintiff did not dispute the class was covered\nunder SLUSA, and the issue before the Court involved the “in\nconnection with” requirement); Holtz, 846 F.3d at 930 (issue\nwas whether plaintiff’s contract and fiduciary claims neces-\nsarily involved an “omission of a material fact” to implicate\nSLUSA); Brown, 664 F.3d at 125 (court addressed whether the\nplaintiff’s complaint alleged a misrepresentation or omission\nof a material fact in connection with the purchase or sale of a\ncovered security).\n The Supreme Court and the Seventh Circuit in these cases\ndid not have the opportunity or need to opine on the contexts\nin which Subparagraphs (I) or (II) could apply. Thus, all of\nthese statements defining “covered class action” solely in re-\nlation to the fifty-person requirement in Subparagraph (I) are\nmerely dicta rather than an interpretation of SLUSA that we\nare bound to follow. Cf. In re Air Crash Disaster Near Chi., Ill.\non May 25, 1979, 701 F.2d 1189, 1196 (7th Cir. 1983) (casual\ndicta of a state supreme court, as opposed to considered dicta,\n“has little precedential weight”). Instead, the plain text of\nSLUSA’s “covered class action” definition governs, and pur-\nsuant to this unambiguous text, Nielen-Thomas’s lawsuit is a\ncovered class action.\n In sum, SLUSA’s definition of “covered class action” un-\nambiguously precludes Nielen-Thomas’s suit. She is a named\nplaintiff seeking to bring claims on a representative basis and\nalleges that common questions of law or fact predominate.\nThus, § 78bb(f)(5)(B)(i)(II) applies, the suit is a covered class\n\fNo. 18-2875 19\n\naction, and SLUSA precludes it from proceeding in both state\nand federal court.\n To the extent the identities of any of the other putative\nclass members are known, and these individuals wish to pur-\nsue claims on their own behalf in state court under state law,\nnothing in SLUSA prevents them from doing so (provided\nthere are fewer than fifty such plaintiffs for which common\nquestions of law or fact predominate). What SLUSA does pre-\nclude these individuals from doing is continuing to pursue\ntheir claims in the form of a class action. 11\n III. Conclusion\n For the foregoing reasons, we AFFIRM the judgment of the\ndistrict court.\n\n\n\n\n 11 The district court dismissed Nielen-Thomas’s state-law class claims\n\nwith prejudice. In her reply brief, Nielen-Thomas argues for the first time\nthat even if her action is covered under Subparagraph (II), the Court\nshould still remand with directions to dismiss without prejudice instead\nbecause she should be given the opportunity to join other named plaintiffs\nto her own individual claims. Because Nielen-Thomas waited to raise this\nchallenge until her reply brief, she has waived it. See United States v. Price,\n906 F.3d 685, 690 (7th Cir. 2018).\n[END_CASE]", "role": "user" } ]
4,584,635		Susan Nielen-Thomas v. Concorde Investment Services	2019-01-24	18-2875	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before FLAUM, KANNE, and HAMILTON, Circuit Judges.", "parties": "", "opinions": [{"author": "Joel Martin Flaum", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-2875\nSUSAN NIELEN-THOMAS,\n Plaintiff-Appellant,\n v.\n\nCONCORDE INVESTMENT SERVICES, LLC, et al.,\n Defendants-Appellees.\n ____________________\n\n Appeal from the United States District Court for the\n Western District of Wisconsin.\n No. 18-cv-00229 — James D. Peterson, Chief District Judge.\n ____________________\n\n ARGUED JANUARY 15, 2019 — DECIDED JANUARY 24, 2019\n ____________________\n\n Before FLAUM, KANNE, and HAMILTON, Circuit Judges.\n FLAUM, Circuit Judge. Susan Nielen-Thomas, on behalf of\nherself and others similarly situated, filed a complaint in Wis-\nconsin state court alleging she and other class members were\ndefrauded by their investment advisor. Defendants removed\nthe case to federal court. They then argued the action should\nbe dismissed because it was a “covered class action” pre-\ncluded by the Securities Litigation Uniform Standards Act of\n1998 (“SLUSA”). See 15 U.S.C. § 78bb(f)(1), (f)(5)(B), amending\n\f2 No. 18-2875\n\nSecurities Exchange Act of 1934. 1 According to Nielen-\nThomas, her lawsuit did not meet SLUSA’s “covered class ac-\ntion” definition because she alleged a proposed class with\nfewer than fifty members. See § 78bb(f)(5)(B)(i)(I). The district\ncourt agreed with defendants that Nielen-Thomas’s suit was\na “covered class action” because she brought her claims in a\nrepresentative capacity, see § 78bb(f)(5)(B)(i)(II), and it dis-\nmissed her claims with prejudice.\n We hold that the plain language of SLUSA’s “covered\nclass action” definition includes any class action brought by a\nnamed plaintiff on a representative basis, regardless of the\nproposed class size. Because this includes Nielen-Thomas’s\nclass action lawsuit and her complaint meets all other statu-\ntory requirements, her lawsuit is precluded by SLUSA. We af-\nfirm the judgment of the district court.\n I. Background\n On February 5, 2018, plaintiff-appellant Nielen-Thomas\nfiled a putative class action in Wisconsin state court against\ndefendants-appellees Concorde Investment Services, LLC,\nFortune Financial Services, Inc., TD Ameritrade, Inc., Wiscon-\nsin River Bank, Jeffrey L. Butler, and Wisconsin Investment\nServices LLC. The class includes retail clients of Butler and his\ninvestment advisory firm, Wisconsin Investment Services.\nAccording to the complaint, Butler exercised control of his cli-\nents’ accounts and owed them a fiduciary duty to act in their\nbest interests. Butler allegedly failed to properly manage\nthese accounts, though, leading to huge losses.\n\n 1See also 15 U.S.C. § 77p(b), (f)(2) (amending Securities Act of 1933 in\nan identical way). The parties cite solely to the 1934 Act amendments, so\nwe do the same in this opinion unless otherwise noted.\n\fNo. 18-2875 3\n\n Nielen-Thomas identifies two ways Butler mismanaged\naccounts. First, Butler promised to create individualized port-\nfolios for each investor; instead, he subjected his clients to\nblock trades that lacked asset allocation and diversification\nsuitable for retail investors. Second, Butler repeatedly pur-\nchased and sold on behalf of his clients an exchange-traded\nnote known as VXX. VXX is an unsecured debt instrument\ndesigned to track the movement of futures on an index that\nmeasures overall market volatility. This note is inherently vol-\natile and risky, and it is designed to be used as a hedge by\nsophisticated investors only on a short-term basis. However,\nButler repeatedly purchased and sold VXX on behalf of his\nretail clients and let it sit in their accounts for months, even\nthough such a strategy was practically guaranteed to lose\nmoney.\n The other defendants are entities that Nielen-Thomas\nclaims are also responsible for Butler’s conduct. Butler was a\nregistered broker with Concorde from March 2012 to May\n2015 and with Fortune from July 2015 to December 2016. Con-\ncorde and Fortune were required to supervise Butler’s invest-\nment advisory activities when he was trading in the accounts\nof their customers but allegedly failed to do so. Additionally,\nButler had an agreement with TD Ameritrade through which\nButler could use its online trading platform to execute all\ntrades in his clients’ accounts. TD Ameritrade also allegedly\nfailed to properly supervise Butler’s activity. Finally, Wiscon-\nsin River Bank referred clients to Butler, who in turn compen-\nsated the bank for these referrals. Nielen-Thomas alleges the\nbank owed its clients a duty of care in recommending invest-\nment advisors to them, and it breached that duty by recom-\nmending Butler.\n\f4 No. 18-2875\n\n In her class-action complaint, Nielen-Thomas brought\nnine state-law claims on behalf of the putative class, alleging\nbreaches of Wisconsin and Nebraska securities laws, breach\nof Wisconsin’s “fraudulent representations” statute, and com-\nmon law violations under both Wisconsin and Nebraska law\nfor breach of contract, fraud, negligence, failure to supervise,\nand breach of fiduciary duty. 2 According to the complaint,\n“[w]hile the exact number of putative Class members cannot\nbe determined yet, upon information and belief, the putative\nClass consists of at least 35, but no more than 49 members.”\n On March 30, 2018, defendants removed the case to the\nWestern District of Wisconsin pursuant to SLUSA, 15 U.S.C.\n§ 78bb(f)(2). After removal, defendants Fortune, TD Ameri-\ntrade, and Concorde 3 moved to dismiss Nielen-Thomas’s\nnine state-law claims as barred by the Private Securities Liti-\ngation Reform Act of 1995 (“PSLRA”), 15 U.S.C. §§ 77, 78, and\nSLUSA. Specifically, defendants argued this suit qualified as\na “covered class action” that was both removable and pre-\ncluded by SLUSA. Nielen-Thomas opposed these motions\nand sought to remand the case because, she argued, her case\ndid not fall within SLUSA’s ambit; she claimed that because\nher proposed class contained fewer than fifty members, it\ncould not be a “covered class action” as defined by the statute.\n\n\n\n 2 Nielen-Thomas also brought a tenth class claim for breach of the Se-\ncurities Act of 1933. The district court dismissed it with prejudice for fail-\nure to state a claim. Nielen-Thomas does not appeal this aspect of the dis-\ntrict court’s decision.\n 3Nielen-Thomas voluntarily dismissed Butler as a defendant. Alt-\nhough Butler’s firm, Wisconsin Investment Services, is technically still a\ndefendant, it has no assets and is not involved with this appeal.\n\fNo. 18-2875 5\n\n On July 26, 2018, the district court denied Nielen-\nThomas’s motion to remand and granted defendants’ motion\nto dismiss. The court noted that SLUSA’s language was “con-\nfusing,” but concluded its “legislative history clears things\nup”—the lawsuit was not a covered class action under\n15 U.S.C. § 78bb(f)(5)(B)(i)(I) because her proposed class had\nfewer than fifty members, but her lawsuit met SLUSA’s defi-\nnition of a “covered class action” in 15 U.S.C.\n§ 78bb(f)(5)(B)(i)(II) because she brought her action on behalf\nof unnamed parties in a representative capacity. SLUSA thus\nprecluded her state-law claims, and the district court dis-\nmissed them with prejudice. Nielen-Thomas appeals.\n II. Discussion\n At issue is the district court’s denial of Nielen-Thomas’s\nmotion to remand and its grant of defendants’ motions to dis-\nmiss based on its interpretation of SLUSA’s “covered class ac-\ntion” definition. We review the district court’s interpretation\nof a statute de novo. United States v. Rosenbohm, 564 F.3d 820,\n822 (7th Cir. 2009).\n When confronting an issue of statutory interpretation, we\nmust always begin with the text and “give effect to the clear\nmeaning of statutes as written.” Star Athletica, L.L.C. v. Varsity\nBrands, Inc., 137 S. Ct. 1002, 1010 (2017) (quoting Estate of Cow-\nart v. Nicklos Drilling Co., 505 U.S. 469, 476 (1992)). If the text\nis clear, we can end our inquiry here as well. Id. We also read\na statute “as a whole” rather than “as a series of unrelated and\nisolated provisions.” Arreola-Castillo v. United States, 889 F.3d\n378, 386 (7th Cir. 2018) (first quoting King v. St. Vincent’s Hosp.,\n502 U.S. 215, 221 (1991), then quoting Gonzales v. Oregon, 546\nU.S. 243, 273 (2006)). Words are given “their ordinary and nat-\nural meaning” in the absence of a specific statutory definition.\n\f6 No. 18-2875\n\nCFTC v. Worth Bullion Grp., Inc., 717 F.3d 545, 550 (7th Cir.\n2013) (quoting Scherr v. Marriott Int’l, Inc., 703 F.3d 1069, 1077\n(7th Cir. 2013)). We must also, if possible, give effect to “every\nclause and word” of a statute, taking care not to read words\ninto the text or to treat any words as surplusage. Duncan v.\nWalker, 533 U.S. 167, 174 (2001) (quoting United States v.\nMenasche, 348 U.S. 528, 538–39 (1955)); Water Quality Ass’n\nEmps.’ Benefit Corp. v. United States, 795 F.2d 1303, 1309 (7th\nCir. 1986).\n Regarding SLUSA’s language specifically, “Congress en-\nvisioned a broad construction” of the statute, which “follows\nnot only from ordinary principles of statutory construction\nbut also from the particular concerns that culminated in\nSLUSA’s enactment.” Merrill Lynch, Pierce, Fenner & Smith Inc.\nv. Dabit, 547 U.S. 71, 86 (2006). SLUSA amends the Securities\nAct of 1933 and the Securities Exchange Act of 1934, both of\nwhich regulate federal securities “to promote honest practices\nin the securities market.” Cyan, Inc. v. Beaver Cty. Emps. Ret.\nFund, 138 S. Ct. 1061, 1066 (2018). Congress had previously\namended these two laws when it passed the PSLRA in 1995,\n“principally to stem ‘perceived abuses of the class-action ve-\nhicle in litigation involving nationally traded securities.’” Id.\n(quoting Dabit, 547 U.S. at 81). Specifically, “nuisance filings,\ntargeting of deep-pocket defendants, vexatious discovery re-\nquests, and manipulation by class action lawyers of the clients\nwhom they purportedly represent had become rampant,”\nsuch that abusive class-action litigation was injuring “the en-\ntire U.S. economy.” Dabit, 547 U.S. at 81 (citation and internal\nquotation marks omitted). Congress sought to curb these\nabuses through the PSLRA by imposing burdens on plaintiffs\nwho sought to bring federal securities fraud class actions, in-\ncluding by limiting recoverable damages and attorney’s fees\n\fNo. 18-2875 7\n\nand by mandating sanctions for frivolous litigation. Id. at 81–\n82.\n The PSLRA made it harder to bring a federal securities\nclass action; an unintended consequence of its enactment,\nthough, was that plaintiffs tried to escape the law’s con-\nstraints by “bringing class actions under state law, often in\nstate court,” rather than under federal law in federal court. Id.\nat 82. To “prevent plaintiffs from circumventing the [PSLRA]”\nin this manner, Cyan, 138 S. Ct. at 1067, Congress enacted the\nSLUSA amendments in 1998.\n SLUSA precludes specified securities class actions from\nproceeding under state law. Specifically, “[n]o covered class\naction based upon the statutory or common law of any State\nor subdivision thereof may be maintained in any State or Fed-\neral court by any private party” if that party alleges either “a\nmisrepresentation or omission of a material fact in connection\nwith the purchase or sale of a covered security” 4 or “that the\ndefendant used or employed any manipulative or deceptive\ndevice or contrivance in connection with the purchase or sale\nof a covered security.” 15 U.S.C. § 78bb(f)(1). Moreover, “[i]f\nsuch a suit is brought in a state court the defendant can re-\nmove it to federal court and move to dismiss it … [and] the\ndistrict judge must grant the motion.” Brown v. Calamos, 664\nF.3d 123, 124–25 (7th Cir. 2011) (citing 15 U.S.C. § 78bb(f)(2)). 5\n\n\n\n\n 4A “covered security” is “a security traded nationally and listed on a\nregulated national exchange.” Brown v. Calamos, 664 F.3d 123, 124 (7th Cir.\n2011) (citing 15 U.S.C. § 78bb(f)(5)(E)).\n 5 Although some case law refers to SLUSA preemption rather than\npreclusion, SLUSA “does not itself displace state law with federal law but\n\f8 No. 18-2875\n\n Nielen-Thomas does not dispute that her class action\nclaims are based on state law, involve a covered security, and\nallege misrepresentations “in connection with the purchase or\nsale of” that covered security. Instead, she maintains her law-\nsuit is not precluded by SLUSA because it is not a “covered\nclass action” as that term is defined.\n Under SLUSA, a “single lawsuit” qualifies as a “covered\nclass action” when (subject to certain exceptions not applica-\nble here):\n (I) damages are sought on behalf of more than\n 50 persons or prospective class members,\n and questions of law or fact common to\n those persons or members of the prospective\n class, without reference to issues of individ-\n ualized reliance on an alleged misstatement\n or omission, predominate over any ques-\n tions affecting only individual persons or\n members; or\n (II) one or more named parties seek to recover\n damages on a representative basis on behalf\n of themselves and other unnamed parties\n similarly situated, and questions of law or\n fact common to those persons or members of\n the prospective class predominate over any\n questions affecting only individual persons\n or members … .\n\n\n\nmakes some state-law claims nonactionable through the class-action de-\nvice in federal as well as state court.” Kircher v. Putnam Funds Tr., 547 U.S.\n633, 636 n.1 (2006).\n\fNo. 18-2875 9\n\n15 U.S.C. § 78bb(f)(5)(B)(i). 6 Subparagraph (I) and Subpara-\ngraph (II) in this definition are separated by “or.” An “or” in\na statute is usually disjunctive, see United States v. Woods, 571\nU.S. 31, 45 (2013), meaning a lawsuit can satisfy SLUSA’s\n“covered class action” requirement via either subparagraph.\n Subparagraph (I) provides three criteria for a single law-\nsuit to qualify as a covered class action: (1) damages are\nsought, (2) on behalf of more than fifty “persons or prospec-\ntive class members,” and (3) common questions of law or fact\npredominate “without reference to issues of individualized\nreliance on an alleged misstatement or omission.” Because\nthis subparagraph includes the “prospective class members”\nlanguage, some class actions (as that term is traditionally un-\nderstood) must fall within its scope. See, e.g., Class Action,\nBlack’s Law Dictionary (10th ed. 2014) (“A lawsuit in which\nthe court authorizes a single person or a small group of people\nto represent the interests of a larger group.”); Fed. R. Civ. P.\n23(a) (defining class actions as ones where “[o]ne or more\nmembers of a class may sue or be sued as representative par-\nties on behalf of all members”). Specifically, class actions with\nmore than fifty prospective class members meet this defini-\ntion.\n Subparagraph (II) also includes three criteria for a single\nlawsuit to qualify: (1) damages are sought, (2) by “one or\nmore named parties” who seek to recover such damages “on\n\n\n 6 SLUSA also includes a definition of “covered class action” that ap-\nplies to “any group of lawsuits filed in or pending in the same court” in\nwhich “damages are sought on behalf of more than 50 persons” and “the\nlawsuits are joined, consolidated, or otherwise proceed as a single action\nfor any purpose.” 15 U.S.C. § 78bb(f)(5)(B)(ii).\n\f10 No. 18-2875\n\na representative basis on behalf of themselves and other un-\nnamed parties similarly situated,” and (3) common questions\nof law or fact predominate. This subparagraph must also\nreach class actions because its definition includes suits\nbrought by named parties “on a representative basis.”\n Although there is overlap between the two, each subpara-\ngraph has a separate meaning. Subparagraph (I) includes in\nits scope all actions brought by groups of more than fifty “pro-\nspective class members,” so class actions of the requisite size\ncan be covered under this definition. But this subparagraph\nalso includes single lawsuits brought by groups of more than\nfifty “persons” without any “prospective” or “representative”\ncaveat on their plaintiff status. In other words, a lawsuit may\nbe treated as a class action even if all plaintiffs are identified\nin the complaint and no plaintiff is pursuing claims as a rep-\nresentative on behalf of others, if there are more than fifty\nsuch plaintiffs and SLUSA’s other requirements are met. 7\n Subparagraph (II)’s language includes all actions in which\none named plaintiff seeks to recover damages “on a repre-\nsentative basis on behalf of themselves and other unnamed\nparties similarly situated.” By its plain and unambiguous\n\n\n 7 Subparagraph (I) also includes a caveat to its commonality require-\nment: common questions of law or fact must predominate “without refer-\nence to issues of individualized reliance on an alleged misstatement or\nomission.” § 78bb(f)(5)(B)(i)(I). If over fifty plaintiffs are identified in an\naction, they could attempt to evade treatment as a class action, and SLUSA\npreclusion, by pointing to the fact of each plaintiff’s reliance, which would\nnecessarily require an individualized inquiry. See, e.g., Basic Inc. v. Levin-\nson, 485 U.S. 224, 242–43 (1988). But Subparagraph (I) prevents that from\nhappening by removing the reliance issue from the commonality analysis.\nIt can therefore reach actions that are not “class actions” in the usual sense.\n\fNo. 18-2875 11\n\nterms, it includes any action brought as a putative class action\nin the traditional Rule 23 meaning of the term. And because\nthis subparagraph contains no fifty-person threshold as (I)\ndoes, Subparagraph (II) includes all putative class actions that\notherwise meet the relevant requirements in its scope, regard-\nless of this proposed class’s size.\n This reading of the “covered class action” definition for\nsingle lawsuits still includes some overlap in the scope of each\nsubparagraph; a putative class action in which the proposed\nclass exceeds fifty members could be “covered” under both\nSubparagraph (I) and Subparagraph (II). But this redundancy\nis not unusual or problematic. See Conn. Nat’l Bank v. Germain,\n503 U.S. 249, 253 (1992). More importantly, this reading gives\nseparate effect to both subparagraphs so that each covers\nsomething the other does not. See Hibbs v. Winn, 542 U.S. 88,\n101 (2004) (“A statute should be construed so that effect is\ngiven to all its provisions, so that no part will be inoperative\nor superfluous, void or insignificant.” (citation omitted)).\nSubparagraph (I) includes lawsuits that, while not “class ac-\ntions” in that no plaintiff seeks damages as a representative,\nidentify more than fifty plaintiffs. And Subparagraph (II) in-\ncludes all putative class actions with fifty or fewer proposed\nclass members. 8\n\n\n 8 No other circuit has directly opined on the difference between Sub-\nparagraphs (I) and (II). The Second and Eighth Circuits have, however,\nreferenced SLUSA’s definition of a covered class action in a way that sup-\nports our interpretation. See In re Kingate Mgmt. Ltd. Litig., 784 F.3d 128,\n138 n.16 (2d Cir. 2015) (“‘[C]overed class action’ includes, with certain ex-\nceptions, class actions seeking damages on behalf of unidentified plain-\ntiffs, class actions seeking damages on behalf of more than 50 identified\npersons, and [group lawsuits].”); Green v. Ameritrade, Inc., 279 F.3d 590,\n596 n.4 (8th Cir. 2002) (“A covered class action is any suit brought by a\n\f12 No. 18-2875\n\n While the plain language of each subparagraph of\n§ 78bb(f)(5)(B)(i) is clear, such that we do not need to resort to\nconsidering SLUSA’s legislative history to aid in our inquiry,\nthis history is consistent with our interpretation. See Gustafson\nv. Alloyd Co. Inc., 513 U.S. 561, 580 (1995); see also Cyan, 138 S.\nCt. at 1072 (addressing petitioner’s interpretive arguments\nbased on SLUSA’s legislative history). The House Report ac-\ncompanying SLUSA explains that the “covered class action”\ndefinition includes: “actions brought on behalf of more than\n50 persons, actions brought on behalf of one or more un-\nnamed parties, and so-called ‘mass actions,’ in which a group\nof lawsuits filed in the same court are joined or otherwise pro-\nceed as a single action.” H.R. Rep. 105-640, at 9 (1998). This\nexplanation separates the types of “covered class actions” that\nSLUSA precludes in a way that mirrors how they appear in\nthe statute. Actions brought on behalf of more than fifty per-\nsons are covered by Subparagraph (I), actions brought on be-\nhalf of unnamed parties are covered by Subparagraph (II),\nand actions brought as groups of lawsuits in the same court\nare covered by the “group lawsuit” definition in\n§ 78bb(f)(5)(B)(ii). See also H.R. Conf. Rep. 105-803, at 13 (1998)\n(using identical language to explain the “covered class action”\ndefinition).\n The Senate Report also explains the “covered class action”\ndefinition in SLUSA. Regarding Subparagraph (I), it states\nthat this portion of the definition “provides that any single\n\n\nclass of more than 50 persons, or by one or more named parties acting as\nclass representatives, and where ‘questions of law or fact common to those\npersons or members of the prospective class predominate over any ques-\ntions affecting only individual persons or members.’” (quoting 15 U.S.C.\n§ 78bb(f)(5)(B)(i)(II))).\n\fNo. 18-2875 13\n\nlawsuit is treated as a class action if it seeks damages on behalf\nof more than fifty persons and questions of law or fact com-\nmon to the prospective class predominate, without regard to\nquestions of individualized reliance.” S. Rep. 105-182, at 7\n(1998) (emphasis added). It also references Subparagraph (II),\nnoting that it “provides a definition that closely tracks the rel-\nevant provisions of Rule 23 of the Federal Rules of Civil Pro-\ncedure in which a suit is brought by representative plaintiffs\non behalf of themselves and other unnamed parties.” Id. To-\ngether, these explanations of the “covered class action” defi-\nnition in SLUSA envision the same distinction between Sub-\nparagraphs (I) and (II) that is reflected in the statute’s text.\n Applying this interpretation here demonstrates that\nNielen-Thomas cannot proceed with her state-law claims. 9\nShe calls her filing a “Class Action Complaint” and brings her\nclaims “individually and on behalf of all others similarly sit-\nuated.” She specifically pleads that “common questions of\nlaw and fact exist as to all members of the putative Class and\nSub-Classes,” she seeks damages from defendants, and she\nproposes a class of between thirty-five and forty-nine mem-\nbers. Because her proposed class contains fewer than fifty per-\nsons, her lawsuit is not a covered class action under Subpara-\ngraph (I). However, because she seeks to recover damages on\na representative basis, her lawsuit is a covered class action un-\nder Subparagraph (II). SLUSA therefore precludes her state-\nlaw claims, and the district court was correct to both remove\nthe case from state court and dismiss the state-law claims.\n\n\n 9 We can assume the truth of Nielen-Thomas’s well-pleaded factual\nallegations at this stage without first considering whether a class could be\ncertified. See Brown, 664 F.3d at 125.\n\f14 No. 18-2875\n\n An obvious implication of our § 78bb(f)(5)(B)(i)(I)–(II) in-\nterpretation is that no putative securities class actions that are\nbased on state law and otherwise meet SLUSA’s requirements\n(they involve a covered security, allege a misrepresentation in\nconnection with that security, etc.) can proceed in either fed-\neral or state court under SLUSA. Nielen-Thomas argues this\nsweeps too broadly; she says the legislative history for SLUSA\nindicates Congress only intended to preclude “certain” state\nactions, but not all of them. See H.R. Conf. Rep. 105-803, at 2\n(“[T]o prevent certain State private securities class action law-\nsuits alleging fraud from being used to frustrate the objectives\nof the [PSLRA], it is appropriate to enact national standards\nfor securities class action lawsuits involving nationally traded\nsecurities.” (emphasis added)). But it makes sense that Con-\ngress would preclude all actions brought using the class-ac-\ntion device, not just classes alleged to include more than fifty\npeople, when we again consider SLUSA’s enactment history\nand legislative purpose. 10\n Congress passed these amendments to combat a specific\nproblem—litigants were attempting to circumvent the\nPSLRA’s barriers to federal securities class actions by filing\ntheir class actions under state law instead. Cyan, 138 S. Ct. at\n1067. To that end, SLUSA sought “to limit the conduct of se-\ncurities class actions under State law.” SLUSA, 112 Stat 3227.\n\n\n 10Furthermore, Congress did create some exceptions to SLUSA’s re-\nquirements, in § 78bb(f)(3), so not all class actions are covered. For exam-\nple, SLUSA’s preclusion and removal provisions specifically exclude class\nactions comprised solely of states and other political subdivisions. See\n15 U.S.C. § 78bb(f)(3)(B). Derivative actions are also excluded. See id.\n§ 78bb(f)(5)(C). Certain state securities class actions can go forward under\nSLUSA, just not those brought by a private party on a representative basis.\n\fNo. 18-2875 15\n\nThe Supreme Court has consistently underscored this pur-\npose of the amendments. See, e.g., Cyan, 138 S. Ct. at 1072\n(SLUSA “preclude[s] certain vexing state-law class actions”\n(quoting Kircher v. Putnam Funds Tr., 547 U.S. 633, 645 n.12\n(2006))). This purpose could be easily frustrated if plaintiffs\nbringing a state-law securities class action could simply allege\nthat they represented a class of no more than fifty people. If\nSLUSA did not bar all putative class actions, such suits could\nproceed through the courts until discovery identified the en-\ntire class of plaintiffs. At that point, the actual class could in-\nclude more than fifty persons, and by that time the abuses that\nthe PSLRA sought to prevent would have already taken place.\nCf. Holtz v. JPMorgan Chase Bank, N.A., 846 F.3d 928, 930 (7th\nCir. 2017) (SLUSA was designed to prevent “artful pleading”\nto “evade limits on securities litigation that are designed to\nblock frivolous or abusive suits.”). The plain language of\n§ 78bb(f)(5)(B)(i) gives effect to SLUSA’s purpose and pre-\nvents that from happening by including all putative class ac-\ntions, subject to § 78bb(f)(3)’s exceptions, in its covered class\naction definition.\n Nielen-Thomas also proposes two alternative interpreta-\ntions of SLUSA’s “covered class action” definition. Under ei-\nther one, her case would not be included in SLUSA’s preclu-\nsive scope because her proposed class is alleged to contain\nfewer than fifty members. However, both of these proposed\ninterpretations run contrary to the statutory text.\n First, Nielen-Thomas says Subparagraphs (I) and (II) are\n“separate, independent bases for excluding securities class ac-\ntions from SLUSA’s proscriptions.” By this reading, if a pro-\nposed putative class contains fewer than fifty people, it is ex-\n\f16 No. 18-2875\n\nempted under Subparagraph (I) without the need to go fur-\nther and consider whether Subparagraph (II) might also ap-\nply. This interpretation completely reads Subparagraph (II)\nout of the statute, though, and we do not read statutes in ways\nthat make entire provisions superfluous. See Hibbs, 542 U.S. at\n101. As previously discussed, the definition of “covered class\naction” for single lawsuits includes two subparagraphs sepa-\nrated by a disjunctive “or.” A single lawsuit can therefore be\na covered class action under either section, and our analysis\ncannot stop after determining that a lawsuit does not meet the\ncriteria set out in Subparagraph (I).\n Alternatively, Nielen-Thomas claims the fifty-person\nthreshold identified in Subparagraph (I) must also apply to\nSubparagraph (II) to avoid making the former superfluous.\nThis interpretation is similarly untenable; it attempts to read\nwords from one part of the statute into another part where\nthey do not appear, contravening the plain text. See Water\nQuality Ass’n, 795 F.2d at 1309. By including the fifty-person\nthreshold in Subparagraph (I) but omitting it from (II), Con-\ngress must have intended that it would only apply to (I). See\nDig. Realty Tr., Inc. v. Somers, 138 S. Ct. 767, 777 (2018)\n(“[W]hen Congress includes particular language in one sec-\ntion of a statute but omits it in another[,]” we presume “that\nCongress intended a difference in meaning.” (alterations in\noriginal) (quoting Loughrin v. United States, 573 U.S. 351, 358\n(2014))). Indeed, Congress also included the fifty-person\nthreshold in the group lawsuit “covered class action” defini-\ntion in § 78bb(f)(5)(B)(ii), directly below § 78bb(f)(5)(B)(i),\nwhile excluding it from Subparagraph (II). We cannot rewrite\nthe statute that Congress has written to impute the fifty-per-\nson threshold where it does not appear.\n\fNo. 18-2875 17\n\n Nielen-Thomas argues these interpretations find support\nin statements by both the Supreme Court and Seventh Circuit\nindicating that class actions brought on behalf of fewer than\nfifty persons are not covered by SLUSA. See, e.g., Cyan, 138 S.\nCt. at 1067 (“According to SLUSA’s definitions, the term ‘cov-\nered class action’ means a class action in which ‘damages are\nsought on behalf of more than 50 persons.’” (quoting 15 U.S.C.\n§ 77p(f)(2))); Chadbourne & Parke LLP v. Troice, 571 U.S. 377,\n380 (2014) (SLUSA “forbids the bringing of large securities\nclass actions based upon violations of state law” and “does\nnot apply to class actions with fewer than 51 ‘persons or pro-\nspective class members’” (quoting 15 U.S.C. § 78bb(f)(5)(B));\nDabit, 547 U.S. at 83 (“A ‘covered class action’ is a lawsuit in\nwhich damages are sought on behalf of more than 50 peo-\nple.”); Holtz, 846 F.3d at 934 (stating, near conclusion of opin-\nion, that SLUSA “is limited to ‘covered class actions,’ which\nmeans that [plaintiff] could litigate for herself and as many as\n49 other customers”); Brown, 664 F.3d at 124 (SLUSA “prohib-\nits securities class actions if the class has more than 50 mem-\nbers”).\n These statements appear, in isolation, to support Nielen-\nThomas; they reference only the fifty-person threshold from\nSubparagraph (I) and suggest that only “sizable” class actions\npursued on a representative basis are within SLUSA’s scope.\nBut in context, it is clear neither the Supreme Court nor this\nCircuit is making any interpretive statement regarding the\nscope of the “covered class action” definition because that\nwas not the issue these cases addressed. See Cyan, 138 S. Ct. at\n1066 (issue was whether SLUSA stripped state courts of juris-\ndiction over class actions involving 1933 Act violations, and\ninvestors did not dispute their class action would be “cov-\nered”); Chadbourne & Parke, 571 U.S. at 381 (Court considered\n\f18 No. 18-2875\n\nwhether SLUSA encompassed a class action in which plain-\ntiffs alleged they purchased uncovered securities that were\nfalsely presented to them as “covered” securities); Dabit, 547\nU.S. at 83–84 (plaintiff did not dispute the class was covered\nunder SLUSA, and the issue before the Court involved the “in\nconnection with” requirement); Holtz, 846 F.3d at 930 (issue\nwas whether plaintiff’s contract and fiduciary claims neces-\nsarily involved an “omission of a material fact” to implicate\nSLUSA); Brown, 664 F.3d at 125 (court addressed whether the\nplaintiff’s complaint alleged a misrepresentation or omission\nof a material fact in connection with the purchase or sale of a\ncovered security).\n The Supreme Court and the Seventh Circuit in these cases\ndid not have the opportunity or need to opine on the contexts\nin which Subparagraphs (I) or (II) could apply. Thus, all of\nthese statements defining “covered class action” solely in re-\nlation to the fifty-person requirement in Subparagraph (I) are\nmerely dicta rather than an interpretation of SLUSA that we\nare bound to follow. Cf. In re Air Crash Disaster Near Chi., Ill.\non May 25, 1979, 701 F.2d 1189, 1196 (7th Cir. 1983) (casual\ndicta of a state supreme court, as opposed to considered dicta,\n“has little precedential weight”). Instead, the plain text of\nSLUSA’s “covered class action” definition governs, and pur-\nsuant to this unambiguous text, Nielen-Thomas’s lawsuit is a\ncovered class action.\n In sum, SLUSA’s definition of “covered class action” un-\nambiguously precludes Nielen-Thomas’s suit. She is a named\nplaintiff seeking to bring claims on a representative basis and\nalleges that common questions of law or fact predominate.\nThus, § 78bb(f)(5)(B)(i)(II) applies, the suit is a covered class\n\fNo. 18-2875 19\n\naction, and SLUSA precludes it from proceeding in both state\nand federal court.\n To the extent the identities of any of the other putative\nclass members are known, and these individuals wish to pur-\nsue claims on their own behalf in state court under state law,\nnothing in SLUSA prevents them from doing so (provided\nthere are fewer than fifty such plaintiffs for which common\nquestions of law or fact predominate). What SLUSA does pre-\nclude these individuals from doing is continuing to pursue\ntheir claims in the form of a class action. 11\n III. Conclusion\n For the foregoing reasons, we AFFIRM the judgment of the\ndistrict court.\n\n\n\n\n 11 The district court dismissed Nielen-Thomas’s state-law class claims\n\nwith prejudice. In her reply brief, Nielen-Thomas argues for the first time\nthat even if her action is covered under Subparagraph (II), the Court\nshould still remand with directions to dismiss without prejudice instead\nbecause she should be given the opportunity to join other named plaintiffs\nto her own individual claims. Because Nielen-Thomas waited to raise this\nchallenge until her reply brief, she has waived it. See United States v. Price,\n906 F.3d 685, 690 (7th Cir. 2018).", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4361888/", "author_raw": "Joel Martin Flaum"}]}	FLAUM	KANNE	HAMILTON	1		{"FLAUM": ", Circuit", "KANNE": ", Circuit", "HAMILTON": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4584635/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Susan Nielen-Thomas v. Concorde Investment Services\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-24\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-2875\nSUSAN NIELEN-THOMAS,\n Plaintiff-Appellant,\n v.\n\nCONCORDE INVESTMENT SERVICES, LLC, et al.,\n Defendants-Appellees.\n ____________________\n\n Appeal from the United States District Court for the\n Western District of Wisconsin.\n No. 18-cv-00229 — James D. Peterson, Chief District Judge.\n ____________________\n\n ARGUED JANUARY 15, 2019 — DECIDED JANUARY 24, 2019\n ____________________\n\n Before FLAUM, KANNE, and HAMILTON, Circuit Judges.\n FLAUM, Circuit Judge. Susan Nielen-Thomas, on behalf of\nherself and others similarly situated, filed a complaint in Wis-\nconsin state court alleging she and other class members were\ndefrauded by their investment advisor. Defendants removed\nthe case to federal court. They then argued the action should\nbe dismissed because it was a “covered class action” pre-\ncluded by the Securities Litigation Uniform Standards Act of\n1998 (“SLUSA”). See 15 U.S.C. § 78bb(f)(1), (f)(5)(B), amending\n\f2 No. 18-2875\n\nSecurities Exchange Act of 1934. 1 According to Nielen-\nThomas, her lawsuit did not meet SLUSA’s “covered class ac-\ntion” definition because she alleged a proposed class with\nfewer than fifty members. See § 78bb(f)(5)(B)(i)(I). The district\ncourt agreed with defendants that Nielen-Thomas’s suit was\na “covered class action” because she brought her claims in a\nrepresentative capacity, see § 78bb(f)(5)(B)(i)(II), and it dis-\nmissed her claims with prejudice.\n We hold that the plain language of SLUSA’s “covered\nclass action” definition includes any class action brought by a\nnamed plaintiff on a representative basis, regardless of the\nproposed class size. Because this includes Nielen-Thomas’s\nclass action lawsuit and her complaint meets all other statu-\ntory requirements, her lawsuit is precluded by SLUSA. We af-\nfirm the judgment of the district court.\n I. Background\n On February 5, 2018, plaintiff-appellant Nielen-Thomas\nfiled a putative class action in Wisconsin state court against\ndefendants-appellees Concorde Investment Services, LLC,\nFortune Financial Services, Inc., TD Ameritrade, Inc., Wiscon-\nsin River Bank, Jeffrey L. Butler, and Wisconsin Investment\nServices LLC. The class includes retail clients of Butler and his\ninvestment advisory firm, Wisconsin Investment Services.\nAccording to the complaint, Butler exercised control of his cli-\nents’ accounts and owed them a fiduciary duty to act in their\nbest interests. Butler allegedly failed to properly manage\nthese accounts, though, leading to huge losses.\n\n 1See also 15 U.S.C. § 77p(b), (f)(2) (amending Securities Act of 1933 in\nan identical way). The parties cite solely to the 1934 Act amendments, so\nwe do the same in this opinion unless otherwise noted.\n\fNo. 18-2875 3\n\n Nielen-Thomas identifies two ways Butler mismanaged\naccounts. First, Butler promised to create individualized port-\nfolios for each investor; instead, he subjected his clients to\nblock trades that lacked asset allocation and diversification\nsuitable for retail investors. Second, Butler repeatedly pur-\nchased and sold on behalf of his clients an exchange-traded\nnote known as VXX. VXX is an unsecured debt instrument\ndesigned to track the movement of futures on an index that\nmeasures overall market volatility. This note is inherently vol-\natile and risky, and it is designed to be used as a hedge by\nsophisticated investors only on a short-term basis. However,\nButler repeatedly purchased and sold VXX on behalf of his\nretail clients and let it sit in their accounts for months, even\nthough such a strategy was practically guaranteed to lose\nmoney.\n The other defendants are entities that Nielen-Thomas\nclaims are also responsible for Butler’s conduct. Butler was a\nregistered broker with Concorde from March 2012 to May\n2015 and with Fortune from July 2015 to December 2016. Con-\ncorde and Fortune were required to supervise Butler’s invest-\nment advisory activities when he was trading in the accounts\nof their customers but allegedly failed to do so. Additionally,\nButler had an agreement with TD Ameritrade through which\nButler could use its online trading platform to execute all\ntrades in his clients’ accounts. TD Ameritrade also allegedly\nfailed to properly supervise Butler’s activity. Finally, Wiscon-\nsin River Bank referred clients to Butler, who in turn compen-\nsated the bank for these referrals. Nielen-Thomas alleges the\nbank owed its clients a duty of care in recommending invest-\nment advisors to them, and it breached that duty by recom-\nmending Butler.\n\f4 No. 18-2875\n\n In her class-action complaint, Nielen-Thomas brought\nnine state-law claims on behalf of the putative class, alleging\nbreaches of Wisconsin and Nebraska securities laws, breach\nof Wisconsin’s “fraudulent representations” statute, and com-\nmon law violations under both Wisconsin and Nebraska law\nfor breach of contract, fraud, negligence, failure to supervise,\nand breach of fiduciary duty. 2 According to the complaint,\n“[w]hile the exact number of putative Class members cannot\nbe determined yet, upon information and belief, the putative\nClass consists of at least 35, but no more than 49 members.”\n On March 30, 2018, defendants removed the case to the\nWestern District of Wisconsin pursuant to SLUSA, 15 U.S.C.\n§ 78bb(f)(2). After removal, defendants Fortune, TD Ameri-\ntrade, and Concorde 3 moved to dismiss Nielen-Thomas’s\nnine state-law claims as barred by the Private Securities Liti-\ngation Reform Act of 1995 (“PSLRA”), 15 U.S.C. §§ 77, 78, and\nSLUSA. Specifically, defendants argued this suit qualified as\na “covered class action” that was both removable and pre-\ncluded by SLUSA. Nielen-Thomas opposed these motions\nand sought to remand the case because, she argued, her case\ndid not fall within SLUSA’s ambit; she claimed that because\nher proposed class contained fewer than fifty members, it\ncould not be a “covered class action” as defined by the statute.\n\n\n\n 2 Nielen-Thomas also brought a tenth class claim for breach of the Se-\ncurities Act of 1933. The district court dismissed it with prejudice for fail-\nure to state a claim. Nielen-Thomas does not appeal this aspect of the dis-\ntrict court’s decision.\n 3Nielen-Thomas voluntarily dismissed Butler as a defendant. Alt-\nhough Butler’s firm, Wisconsin Investment Services, is technically still a\ndefendant, it has no assets and is not involved with this appeal.\n\fNo. 18-2875 5\n\n On July 26, 2018, the district court denied Nielen-\nThomas’s motion to remand and granted defendants’ motion\nto dismiss. The court noted that SLUSA’s language was “con-\nfusing,” but concluded its “legislative history clears things\nup”—the lawsuit was not a covered class action under\n15 U.S.C. § 78bb(f)(5)(B)(i)(I) because her proposed class had\nfewer than fifty members, but her lawsuit met SLUSA’s defi-\nnition of a “covered class action” in 15 U.S.C.\n§ 78bb(f)(5)(B)(i)(II) because she brought her action on behalf\nof unnamed parties in a representative capacity. SLUSA thus\nprecluded her state-law claims, and the district court dis-\nmissed them with prejudice. Nielen-Thomas appeals.\n II. Discussion\n At issue is the district court’s denial of Nielen-Thomas’s\nmotion to remand and its grant of defendants’ motions to dis-\nmiss based on its interpretation of SLUSA’s “covered class ac-\ntion” definition. We review the district court’s interpretation\nof a statute de novo. United States v. Rosenbohm, 564 F.3d 820,\n822 (7th Cir. 2009).\n When confronting an issue of statutory interpretation, we\nmust always begin with the text and “give effect to the clear\nmeaning of statutes as written.” Star Athletica, L.L.C. v. Varsity\nBrands, Inc., 137 S. Ct. 1002, 1010 (2017) (quoting Estate of Cow-\nart v. Nicklos Drilling Co., 505 U.S. 469, 476 (1992)). If the text\nis clear, we can end our inquiry here as well. Id. We also read\na statute “as a whole” rather than “as a series of unrelated and\nisolated provisions.” Arreola-Castillo v. United States, 889 F.3d\n378, 386 (7th Cir. 2018) (first quoting King v. St. Vincent’s Hosp.,\n502 U.S. 215, 221 (1991), then quoting Gonzales v. Oregon, 546\nU.S. 243, 273 (2006)). Words are given “their ordinary and nat-\nural meaning” in the absence of a specific statutory definition.\n\f6 No. 18-2875\n\nCFTC v. Worth Bullion Grp., Inc., 717 F.3d 545, 550 (7th Cir.\n2013) (quoting Scherr v. Marriott Int’l, Inc., 703 F.3d 1069, 1077\n(7th Cir. 2013)). We must also, if possible, give effect to “every\nclause and word” of a statute, taking care not to read words\ninto the text or to treat any words as surplusage. Duncan v.\nWalker, 533 U.S. 167, 174 (2001) (quoting United States v.\nMenasche, 348 U.S. 528, 538–39 (1955)); Water Quality Ass’n\nEmps.’ Benefit Corp. v. United States, 795 F.2d 1303, 1309 (7th\nCir. 1986).\n Regarding SLUSA’s language specifically, “Congress en-\nvisioned a broad construction” of the statute, which “follows\nnot only from ordinary principles of statutory construction\nbut also from the particular concerns that culminated in\nSLUSA’s enactment.” Merrill Lynch, Pierce, Fenner & Smith Inc.\nv. Dabit, 547 U.S. 71, 86 (2006). SLUSA amends the Securities\nAct of 1933 and the Securities Exchange Act of 1934, both of\nwhich regulate federal securities “to promote honest practices\nin the securities market.” Cyan, Inc. v. Beaver Cty. Emps. Ret.\nFund, 138 S. Ct. 1061, 1066 (2018). Congress had previously\namended these two laws when it passed the PSLRA in 1995,\n“principally to stem ‘perceived abuses of the class-action ve-\nhicle in litigation involving nationally traded securities.’” Id.\n(quoting Dabit, 547 U.S. at 81). Specifically, “nuisance filings,\ntargeting of deep-pocket defendants, vexatious discovery re-\nquests, and manipulation by class action lawyers of the clients\nwhom they purportedly represent had become rampant,”\nsuch that abusive class-action litigation was injuring “the en-\ntire U.S. economy.” Dabit, 547 U.S. at 81 (citation and internal\nquotation marks omitted). Congress sought to curb these\nabuses through the PSLRA by imposing burdens on plaintiffs\nwho sought to bring federal securities fraud class actions, in-\ncluding by limiting recoverable damages and attorney’s fees\n\fNo. 18-2875 7\n\nand by mandating sanctions for frivolous litigation. Id. at 81–\n82.\n The PSLRA made it harder to bring a federal securities\nclass action; an unintended consequence of its enactment,\nthough, was that plaintiffs tried to escape the law’s con-\nstraints by “bringing class actions under state law, often in\nstate court,” rather than under federal law in federal court. Id.\nat 82. To “prevent plaintiffs from circumventing the [PSLRA]”\nin this manner, Cyan, 138 S. Ct. at 1067, Congress enacted the\nSLUSA amendments in 1998.\n SLUSA precludes specified securities class actions from\nproceeding under state law. Specifically, “[n]o covered class\naction based upon the statutory or common law of any State\nor subdivision thereof may be maintained in any State or Fed-\neral court by any private party” if that party alleges either “a\nmisrepresentation or omission of a material fact in connection\nwith the purchase or sale of a covered security” 4 or “that the\ndefendant used or employed any manipulative or deceptive\ndevice or contrivance in connection with the purchase or sale\nof a covered security.” 15 U.S.C. § 78bb(f)(1). Moreover, “[i]f\nsuch a suit is brought in a state court the defendant can re-\nmove it to federal court and move to dismiss it … [and] the\ndistrict judge must grant the motion.” Brown v. Calamos, 664\nF.3d 123, 124–25 (7th Cir. 2011) (citing 15 U.S.C. § 78bb(f)(2)). 5\n\n\n\n\n 4A “covered security” is “a security traded nationally and listed on a\nregulated national exchange.” Brown v. Calamos, 664 F.3d 123, 124 (7th Cir.\n2011) (citing 15 U.S.C. § 78bb(f)(5)(E)).\n 5 Although some case law refers to SLUSA preemption rather than\npreclusion, SLUSA “does not itself displace state law with federal law but\n\f8 No. 18-2875\n\n Nielen-Thomas does not dispute that her class action\nclaims are based on state law, involve a covered security, and\nallege misrepresentations “in connection with the purchase or\nsale of” that covered security. Instead, she maintains her law-\nsuit is not precluded by SLUSA because it is not a “covered\nclass action” as that term is defined.\n Under SLUSA, a “single lawsuit” qualifies as a “covered\nclass action” when (subject to certain exceptions not applica-\nble here):\n (I) damages are sought on behalf of more than\n 50 persons or prospective class members,\n and questions of law or fact common to\n those persons or members of the prospective\n class, without reference to issues of individ-\n ualized reliance on an alleged misstatement\n or omission, predominate over any ques-\n tions affecting only individual persons or\n members; or\n (II) one or more named parties seek to recover\n damages on a representative basis on behalf\n of themselves and other unnamed parties\n similarly situated, and questions of law or\n fact common to those persons or members of\n the prospective class predominate over any\n questions affecting only individual persons\n or members … .\n\n\n\nmakes some state-law claims nonactionable through the class-action de-\nvice in federal as well as state court.” Kircher v. Putnam Funds Tr., 547 U.S.\n633, 636 n.1 (2006).\n\fNo. 18-2875 9\n\n15 U.S.C. § 78bb(f)(5)(B)(i). 6 Subparagraph (I) and Subpara-\ngraph (II) in this definition are separated by “or.” An “or” in\na statute is usually disjunctive, see United States v. Woods, 571\nU.S. 31, 45 (2013), meaning a lawsuit can satisfy SLUSA’s\n“covered class action” requirement via either subparagraph.\n Subparagraph (I) provides three criteria for a single law-\nsuit to qualify as a covered class action: (1) damages are\nsought, (2) on behalf of more than fifty “persons or prospec-\ntive class members,” and (3) common questions of law or fact\npredominate “without reference to issues of individualized\nreliance on an alleged misstatement or omission.” Because\nthis subparagraph includes the “prospective class members”\nlanguage, some class actions (as that term is traditionally un-\nderstood) must fall within its scope. See, e.g., Class Action,\nBlack’s Law Dictionary (10th ed. 2014) (“A lawsuit in which\nthe court authorizes a single person or a small group of people\nto represent the interests of a larger group.”); Fed. R. Civ. P.\n23(a) (defining class actions as ones where “[o]ne or more\nmembers of a class may sue or be sued as representative par-\nties on behalf of all members”). Specifically, class actions with\nmore than fifty prospective class members meet this defini-\ntion.\n Subparagraph (II) also includes three criteria for a single\nlawsuit to qualify: (1) damages are sought, (2) by “one or\nmore named parties” who seek to recover such damages “on\n\n\n 6 SLUSA also includes a definition of “covered class action” that ap-\nplies to “any group of lawsuits filed in or pending in the same court” in\nwhich “damages are sought on behalf of more than 50 persons” and “the\nlawsuits are joined, consolidated, or otherwise proceed as a single action\nfor any purpose.” 15 U.S.C. § 78bb(f)(5)(B)(ii).\n\f10 No. 18-2875\n\na representative basis on behalf of themselves and other un-\nnamed parties similarly situated,” and (3) common questions\nof law or fact predominate. This subparagraph must also\nreach class actions because its definition includes suits\nbrought by named parties “on a representative basis.”\n Although there is overlap between the two, each subpara-\ngraph has a separate meaning. Subparagraph (I) includes in\nits scope all actions brought by groups of more than fifty “pro-\nspective class members,” so class actions of the requisite size\ncan be covered under this definition. But this subparagraph\nalso includes single lawsuits brought by groups of more than\nfifty “persons” without any “prospective” or “representative”\ncaveat on their plaintiff status. In other words, a lawsuit may\nbe treated as a class action even if all plaintiffs are identified\nin the complaint and no plaintiff is pursuing claims as a rep-\nresentative on behalf of others, if there are more than fifty\nsuch plaintiffs and SLUSA’s other requirements are met. 7\n Subparagraph (II)’s language includes all actions in which\none named plaintiff seeks to recover damages “on a repre-\nsentative basis on behalf of themselves and other unnamed\nparties similarly situated.” By its plain and unambiguous\n\n\n 7 Subparagraph (I) also includes a caveat to its commonality require-\nment: common questions of law or fact must predominate “without refer-\nence to issues of individualized reliance on an alleged misstatement or\nomission.” § 78bb(f)(5)(B)(i)(I). If over fifty plaintiffs are identified in an\naction, they could attempt to evade treatment as a class action, and SLUSA\npreclusion, by pointing to the fact of each plaintiff’s reliance, which would\nnecessarily require an individualized inquiry. See, e.g., Basic Inc. v. Levin-\nson, 485 U.S. 224, 242–43 (1988). But Subparagraph (I) prevents that from\nhappening by removing the reliance issue from the commonality analysis.\nIt can therefore reach actions that are not “class actions” in the usual sense.\n\fNo. 18-2875 11\n\nterms, it includes any action brought as a putative class action\nin the traditional Rule 23 meaning of the term. And because\nthis subparagraph contains no fifty-person threshold as (I)\ndoes, Subparagraph (II) includes all putative class actions that\notherwise meet the relevant requirements in its scope, regard-\nless of this proposed class’s size.\n This reading of the “covered class action” definition for\nsingle lawsuits still includes some overlap in the scope of each\nsubparagraph; a putative class action in which the proposed\nclass exceeds fifty members could be “covered” under both\nSubparagraph (I) and Subparagraph (II). But this redundancy\nis not unusual or problematic. See Conn. Nat’l Bank v. Germain,\n503 U.S. 249, 253 (1992). More importantly, this reading gives\nseparate effect to both subparagraphs so that each covers\nsomething the other does not. See Hibbs v. Winn, 542 U.S. 88,\n101 (2004) (“A statute should be construed so that effect is\ngiven to all its provisions, so that no part will be inoperative\nor superfluous, void or insignificant.” (citation omitted)).\nSubparagraph (I) includes lawsuits that, while not “class ac-\ntions” in that no plaintiff seeks damages as a representative,\nidentify more than fifty plaintiffs. And Subparagraph (II) in-\ncludes all putative class actions with fifty or fewer proposed\nclass members. 8\n\n\n 8 No other circuit has directly opined on the difference between Sub-\nparagraphs (I) and (II). The Second and Eighth Circuits have, however,\nreferenced SLUSA’s definition of a covered class action in a way that sup-\nports our interpretation. See In re Kingate Mgmt. Ltd. Litig., 784 F.3d 128,\n138 n.16 (2d Cir. 2015) (“‘[C]overed class action’ includes, with certain ex-\nceptions, class actions seeking damages on behalf of unidentified plain-\ntiffs, class actions seeking damages on behalf of more than 50 identified\npersons, and [group lawsuits].”); Green v. Ameritrade, Inc., 279 F.3d 590,\n596 n.4 (8th Cir. 2002) (“A covered class action is any suit brought by a\n\f12 No. 18-2875\n\n While the plain language of each subparagraph of\n§ 78bb(f)(5)(B)(i) is clear, such that we do not need to resort to\nconsidering SLUSA’s legislative history to aid in our inquiry,\nthis history is consistent with our interpretation. See Gustafson\nv. Alloyd Co. Inc., 513 U.S. 561, 580 (1995); see also Cyan, 138 S.\nCt. at 1072 (addressing petitioner’s interpretive arguments\nbased on SLUSA’s legislative history). The House Report ac-\ncompanying SLUSA explains that the “covered class action”\ndefinition includes: “actions brought on behalf of more than\n50 persons, actions brought on behalf of one or more un-\nnamed parties, and so-called ‘mass actions,’ in which a group\nof lawsuits filed in the same court are joined or otherwise pro-\nceed as a single action.” H.R. Rep. 105-640, at 9 (1998). This\nexplanation separates the types of “covered class actions” that\nSLUSA precludes in a way that mirrors how they appear in\nthe statute. Actions brought on behalf of more than fifty per-\nsons are covered by Subparagraph (I), actions brought on be-\nhalf of unnamed parties are covered by Subparagraph (II),\nand actions brought as groups of lawsuits in the same court\nare covered by the “group lawsuit” definition in\n§ 78bb(f)(5)(B)(ii). See also H.R. Conf. Rep. 105-803, at 13 (1998)\n(using identical language to explain the “covered class action”\ndefinition).\n The Senate Report also explains the “covered class action”\ndefinition in SLUSA. Regarding Subparagraph (I), it states\nthat this portion of the definition “provides that any single\n\n\nclass of more than 50 persons, or by one or more named parties acting as\nclass representatives, and where ‘questions of law or fact common to those\npersons or members of the prospective class predominate over any ques-\ntions affecting only individual persons or members.’” (quoting 15 U.S.C.\n§ 78bb(f)(5)(B)(i)(II))).\n\fNo. 18-2875 13\n\nlawsuit is treated as a class action if it seeks damages on behalf\nof more than fifty persons and questions of law or fact com-\nmon to the prospective class predominate, without regard to\nquestions of individualized reliance.” S. Rep. 105-182, at 7\n(1998) (emphasis added). It also references Subparagraph (II),\nnoting that it “provides a definition that closely tracks the rel-\nevant provisions of Rule 23 of the Federal Rules of Civil Pro-\ncedure in which a suit is brought by representative plaintiffs\non behalf of themselves and other unnamed parties.” Id. To-\ngether, these explanations of the “covered class action” defi-\nnition in SLUSA envision the same distinction between Sub-\nparagraphs (I) and (II) that is reflected in the statute’s text.\n Applying this interpretation here demonstrates that\nNielen-Thomas cannot proceed with her state-law claims. 9\nShe calls her filing a “Class Action Complaint” and brings her\nclaims “individually and on behalf of all others similarly sit-\nuated.” She specifically pleads that “common questions of\nlaw and fact exist as to all members of the putative Class and\nSub-Classes,” she seeks damages from defendants, and she\nproposes a class of between thirty-five and forty-nine mem-\nbers. Because her proposed class contains fewer than fifty per-\nsons, her lawsuit is not a covered class action under Subpara-\ngraph (I). However, because she seeks to recover damages on\na representative basis, her lawsuit is a covered class action un-\nder Subparagraph (II). SLUSA therefore precludes her state-\nlaw claims, and the district court was correct to both remove\nthe case from state court and dismiss the state-law claims.\n\n\n 9 We can assume the truth of Nielen-Thomas’s well-pleaded factual\nallegations at this stage without first considering whether a class could be\ncertified. See Brown, 664 F.3d at 125.\n\f14 No. 18-2875\n\n An obvious implication of our § 78bb(f)(5)(B)(i)(I)–(II) in-\nterpretation is that no putative securities class actions that are\nbased on state law and otherwise meet SLUSA’s requirements\n(they involve a covered security, allege a misrepresentation in\nconnection with that security, etc.) can proceed in either fed-\neral or state court under SLUSA. Nielen-Thomas argues this\nsweeps too broadly; she says the legislative history for SLUSA\nindicates Congress only intended to preclude “certain” state\nactions, but not all of them. See H.R. Conf. Rep. 105-803, at 2\n(“[T]o prevent certain State private securities class action law-\nsuits alleging fraud from being used to frustrate the objectives\nof the [PSLRA], it is appropriate to enact national standards\nfor securities class action lawsuits involving nationally traded\nsecurities.” (emphasis added)). But it makes sense that Con-\ngress would preclude all actions brought using the class-ac-\ntion device, not just classes alleged to include more than fifty\npeople, when we again consider SLUSA’s enactment history\nand legislative purpose. 10\n Congress passed these amendments to combat a specific\nproblem—litigants were attempting to circumvent the\nPSLRA’s barriers to federal securities class actions by filing\ntheir class actions under state law instead. Cyan, 138 S. Ct. at\n1067. To that end, SLUSA sought “to limit the conduct of se-\ncurities class actions under State law.” SLUSA, 112 Stat 3227.\n\n\n 10Furthermore, Congress did create some exceptions to SLUSA’s re-\nquirements, in § 78bb(f)(3), so not all class actions are covered. For exam-\nple, SLUSA’s preclusion and removal provisions specifically exclude class\nactions comprised solely of states and other political subdivisions. See\n15 U.S.C. § 78bb(f)(3)(B). Derivative actions are also excluded. See id.\n§ 78bb(f)(5)(C). Certain state securities class actions can go forward under\nSLUSA, just not those brought by a private party on a representative basis.\n\fNo. 18-2875 15\n\nThe Supreme Court has consistently underscored this pur-\npose of the amendments. See, e.g., Cyan, 138 S. Ct. at 1072\n(SLUSA “preclude[s] certain vexing state-law class actions”\n(quoting Kircher v. Putnam Funds Tr., 547 U.S. 633, 645 n.12\n(2006))). This purpose could be easily frustrated if plaintiffs\nbringing a state-law securities class action could simply allege\nthat they represented a class of no more than fifty people. If\nSLUSA did not bar all putative class actions, such suits could\nproceed through the courts until discovery identified the en-\ntire class of plaintiffs. At that point, the actual class could in-\nclude more than fifty persons, and by that time the abuses that\nthe PSLRA sought to prevent would have already taken place.\nCf. Holtz v. JPMorgan Chase Bank, N.A., 846 F.3d 928, 930 (7th\nCir. 2017) (SLUSA was designed to prevent “artful pleading”\nto “evade limits on securities litigation that are designed to\nblock frivolous or abusive suits.”). The plain language of\n§ 78bb(f)(5)(B)(i) gives effect to SLUSA’s purpose and pre-\nvents that from happening by including all putative class ac-\ntions, subject to § 78bb(f)(3)’s exceptions, in its covered class\naction definition.\n Nielen-Thomas also proposes two alternative interpreta-\ntions of SLUSA’s “covered class action” definition. Under ei-\nther one, her case would not be included in SLUSA’s preclu-\nsive scope because her proposed class is alleged to contain\nfewer than fifty members. However, both of these proposed\ninterpretations run contrary to the statutory text.\n First, Nielen-Thomas says Subparagraphs (I) and (II) are\n“separate, independent bases for excluding securities class ac-\ntions from SLUSA’s proscriptions.” By this reading, if a pro-\nposed putative class contains fewer than fifty people, it is ex-\n\f16 No. 18-2875\n\nempted under Subparagraph (I) without the need to go fur-\nther and consider whether Subparagraph (II) might also ap-\nply. This interpretation completely reads Subparagraph (II)\nout of the statute, though, and we do not read statutes in ways\nthat make entire provisions superfluous. See Hibbs, 542 U.S. at\n101. As previously discussed, the definition of “covered class\naction” for single lawsuits includes two subparagraphs sepa-\nrated by a disjunctive “or.” A single lawsuit can therefore be\na covered class action under either section, and our analysis\ncannot stop after determining that a lawsuit does not meet the\ncriteria set out in Subparagraph (I).\n Alternatively, Nielen-Thomas claims the fifty-person\nthreshold identified in Subparagraph (I) must also apply to\nSubparagraph (II) to avoid making the former superfluous.\nThis interpretation is similarly untenable; it attempts to read\nwords from one part of the statute into another part where\nthey do not appear, contravening the plain text. See Water\nQuality Ass’n, 795 F.2d at 1309. By including the fifty-person\nthreshold in Subparagraph (I) but omitting it from (II), Con-\ngress must have intended that it would only apply to (I). See\nDig. Realty Tr., Inc. v. Somers, 138 S. Ct. 767, 777 (2018)\n(“[W]hen Congress includes particular language in one sec-\ntion of a statute but omits it in another[,]” we presume “that\nCongress intended a difference in meaning.” (alterations in\noriginal) (quoting Loughrin v. United States, 573 U.S. 351, 358\n(2014))). Indeed, Congress also included the fifty-person\nthreshold in the group lawsuit “covered class action” defini-\ntion in § 78bb(f)(5)(B)(ii), directly below § 78bb(f)(5)(B)(i),\nwhile excluding it from Subparagraph (II). We cannot rewrite\nthe statute that Congress has written to impute the fifty-per-\nson threshold where it does not appear.\n\fNo. 18-2875 17\n\n Nielen-Thomas argues these interpretations find support\nin statements by both the Supreme Court and Seventh Circuit\nindicating that class actions brought on behalf of fewer than\nfifty persons are not covered by SLUSA. See, e.g., Cyan, 138 S.\nCt. at 1067 (“According to SLUSA’s definitions, the term ‘cov-\nered class action’ means a class action in which ‘damages are\nsought on behalf of more than 50 persons.’” (quoting 15 U.S.C.\n§ 77p(f)(2))); Chadbourne & Parke LLP v. Troice, 571 U.S. 377,\n380 (2014) (SLUSA “forbids the bringing of large securities\nclass actions based upon violations of state law” and “does\nnot apply to class actions with fewer than 51 ‘persons or pro-\nspective class members’” (quoting 15 U.S.C. § 78bb(f)(5)(B));\nDabit, 547 U.S. at 83 (“A ‘covered class action’ is a lawsuit in\nwhich damages are sought on behalf of more than 50 peo-\nple.”); Holtz, 846 F.3d at 934 (stating, near conclusion of opin-\nion, that SLUSA “is limited to ‘covered class actions,’ which\nmeans that [plaintiff] could litigate for herself and as many as\n49 other customers”); Brown, 664 F.3d at 124 (SLUSA “prohib-\nits securities class actions if the class has more than 50 mem-\nbers”).\n These statements appear, in isolation, to support Nielen-\nThomas; they reference only the fifty-person threshold from\nSubparagraph (I) and suggest that only “sizable” class actions\npursued on a representative basis are within SLUSA’s scope.\nBut in context, it is clear neither the Supreme Court nor this\nCircuit is making any interpretive statement regarding the\nscope of the “covered class action” definition because that\nwas not the issue these cases addressed. See Cyan, 138 S. Ct. at\n1066 (issue was whether SLUSA stripped state courts of juris-\ndiction over class actions involving 1933 Act violations, and\ninvestors did not dispute their class action would be “cov-\nered”); Chadbourne & Parke, 571 U.S. at 381 (Court considered\n\f18 No. 18-2875\n\nwhether SLUSA encompassed a class action in which plain-\ntiffs alleged they purchased uncovered securities that were\nfalsely presented to them as “covered” securities); Dabit, 547\nU.S. at 83–84 (plaintiff did not dispute the class was covered\nunder SLUSA, and the issue before the Court involved the “in\nconnection with” requirement); Holtz, 846 F.3d at 930 (issue\nwas whether plaintiff’s contract and fiduciary claims neces-\nsarily involved an “omission of a material fact” to implicate\nSLUSA); Brown, 664 F.3d at 125 (court addressed whether the\nplaintiff’s complaint alleged a misrepresentation or omission\nof a material fact in connection with the purchase or sale of a\ncovered security).\n The Supreme Court and the Seventh Circuit in these cases\ndid not have the opportunity or need to opine on the contexts\nin which Subparagraphs (I) or (II) could apply. Thus, all of\nthese statements defining “covered class action” solely in re-\nlation to the fifty-person requirement in Subparagraph (I) are\nmerely dicta rather than an interpretation of SLUSA that we\nare bound to follow. Cf. In re Air Crash Disaster Near Chi., Ill.\non May 25, 1979, 701 F.2d 1189, 1196 (7th Cir. 1983) (casual\ndicta of a state supreme court, as opposed to considered dicta,\n“has little precedential weight”). Instead, the plain text of\nSLUSA’s “covered class action” definition governs, and pur-\nsuant to this unambiguous text, Nielen-Thomas’s lawsuit is a\ncovered class action.\n In sum, SLUSA’s definition of “covered class action” un-\nambiguously precludes Nielen-Thomas’s suit. She is a named\nplaintiff seeking to bring claims on a representative basis and\nalleges that common questions of law or fact predominate.\nThus, § 78bb(f)(5)(B)(i)(II) applies, the suit is a covered class\n\fNo. 18-2875 19\n\naction, and SLUSA precludes it from proceeding in both state\nand federal court.\n To the extent the identities of any of the other putative\nclass members are known, and these individuals wish to pur-\nsue claims on their own behalf in state court under state law,\nnothing in SLUSA prevents them from doing so (provided\nthere are fewer than fifty such plaintiffs for which common\nquestions of law or fact predominate). What SLUSA does pre-\nclude these individuals from doing is continuing to pursue\ntheir claims in the form of a class action. 11\n III. Conclusion\n For the foregoing reasons, we AFFIRM the judgment of the\ndistrict court.\n\n\n\n\n 11 The district court dismissed Nielen-Thomas’s state-law class claims\n\nwith prejudice. In her reply brief, Nielen-Thomas argues for the first time\nthat even if her action is covered under Subparagraph (II), the Court\nshould still remand with directions to dismiss without prejudice instead\nbecause she should be given the opportunity to join other named plaintiffs\nto her own individual claims. Because Nielen-Thomas waited to raise this\nchallenge until her reply brief, she has waived it. See United States v. Price,\n906 F.3d 685, 690 (7th Cir. 2018).\n[END_CASE]", "role": "user" } ]
4,584,978		Anthony D. Lee, Sr. v. Kevin Kink	2019-01-25	18-1005	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before FLAUM, EASTERBROOK, and SCUDDER, Circuit Judg- es.", "parties": "", "opinions": [{"author": "Frank Hoover Easterbrook", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\n\nNo. 18-1005\nANTHONY D. LEE, SR.,\n Petitioner-Appellant,\n\n v.\n\nKEVIN KINK, Warden, Lawrence Correctional Center,\n Respondent-Appellee.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 11 C 00183 — Edmond E. Chang, Judge.\n ____________________\n\n ARGUED OCTOBER 22, 2018 — DECIDED DECEMBER 21, 2018 —\n AMENDED ON DENIAL OF REHEARING JANUARY 25, 2019\n ____________________\n\n Before FLAUM, EASTERBROOK, and SCUDDER, Circuit Judg-\nes.\n EASTERBROOK, Circuit Judge. After a bench trial, Anthony\nLee was convicted of kidnapping and rape. He is serving\nsentences that add to 100 years’ imprisonment. The state-\ncourt judge found that Lee and his friend Burlmon Manley\nforcibly abducted L.M. about 1 A.M. one day, dragging her\ninto their blue Cadillac while she kicked and screamed. Both\n\f2 No. 18-1005\n\nManley and Lee struck and raped L.M. When L.M. resisted,\nLee retrieved a pistol from the car’s trunk to make her more\ncooperative. About 3 A.M. L.M. escaped and ran naked to a\nnearby house. Police took pictures of L.M.’s bloody face. Lee,\nthe only defense witness, said that L.M. entered the car vol-\nuntarily and that he did not touch her sexually—though be-\nfore trial Lee said that he and L.M. had consensual oral sex.\nThe state judge found that L.M.’s testimony about her ordeal\nwas “very credible” and stated that the pictures showing her\ninjuries, and the testimony of the person who opened the\ndoor to L.M., negated the defense of consent. Lee’s convic-\ntions were aﬃrmed on direct and collateral review. See Peo-\nple v. Lee, 2016 IL App (1st) 152425 (June 30, 2016).\n Lee’s federal petition under 28 U.S.C. §2254 contends that\nhe did not receive eﬀective assistance of counsel. He asserts\nthat before trial his lawyer received ﬁve aﬃdavits that cor-\nroborated Lee’s story or provided exculpatory details, but\nthat counsel did not interview the aﬃants. In Lee’s post-\nconviction proceedings the state judiciary did not hold an\nevidentiary hearing. The appellate decision concluded that\nnone of the ﬁve aﬃdavits is necessarily inconsistent with\nLee’s guilt, while the evidence against him is strong, so the\nabsence of these witnesses at trial was not prejudicial. The\nfederal district judge held that the state court’s decision was\nnot unreasonable, and he denied Lee’s petition. Lee v. Lamb,\n2017 U.S. Dist. LEXIS 198451 (N.D. Ill. Dec. 4, 2017).\n The state court’s decision includes the text of the aﬃda-\nvits, and the district court’s decision summarizes them. It is\nenough for current purposes to give the ﬂavor of how those\ncourts treated the aﬃdavits. Here is the district court’s dis-\n\fNo. 18-1005 3\n\ncussion of aﬃdavits signed by Brian and Gayland Massen-\nburg:\n [T]he Massenburgs stated that they witnessed a white woman\n get into a blue Cadillac. If the woman was indeed L.M., this tes-\n timony would have contradicted L.M.’s assertion that she was\n dragged kicking and screaming into the car, and would have\n supported Lee’s testimony that L.M. willingly joined him and\n Manley. But, as the [Illinois] Appellate Court noted, there are\n some problems with the proposed testimony. First, the Massen-\n burgs identiﬁed the wrong date in their aﬃdavits, stating that\n the event they witnessed was on April 16, when the crime in fact\n happened on April 15. Even without the date mix-up, the Illinois\n Appellate Court reasoned that still the Massenburg’s [sic] testi-\n mony would not have aﬀected the outcome because their aﬃda-\n vits do not clearly identify L.M., Lee, or Manley. The aﬃdavits\n state only that the Massenburgs saw a white woman get into a\n blue Cadillac with two men, but did not provide names or de-\n tailed descriptions. Of course, if defense counsel had called these\n witnesses at trial, then he might have been able to elicit more de-\n tail to establish the likelihood that the individuals the Massen-\n burgs saw were the victim and the defendants. But this testimo-\n ny was not developed (and still has not been developed), and the\n Appellate Court was limited to the aﬃdavits alone. It was not\n unreasonable for the Appellate Court to conclude, on the limited\n record available, that the Massenburg’s [sic] testimony had am-\n biguities that would diminish its exculpatory value.\n\n2017 U.S. Dist. LEXIS 198451 at *16–17 (footnote and citations\nomiqed). This analysis would be convincing, if the law pre-\nvented a court from going beyond the aﬃdavits on collateral\nreview. But it does not; a federal court may hold an eviden-\ntiary hearing if, through no fault of petitioner’s, the state-\ncourt record lacks essential facts. 28 U.S.C. §2254(e)(2).\n The district judge was right to observe that, “if defense\ncounsel had called these witnesses at trial, then he might\nhave been able to elicit more detail to establish the likelihood\n\f4 No. 18-1005\n\nthat the individuals the Massenburgs saw were the victim\nand the defendants.” At trial the Massenburgs may have\navoided the date error and positively identiﬁed L.M., Lee, or\nManley. Yet there are many blue Cadillacs in the world, so\nthe Massenburgs also might have stated that they did not see\nL.M., Lee, or Manley. Perhaps Lee’s lawyer interviewed\nthem and they told him these things, which if so would ex-\nplain why he did not call them at Lee’s trial. Counsel told\nthe state judge at a pretrial conference that “I just have not\nhad time to meet with all these people”, but we don’t know\nwhat, if anything, he did to investigate their potential testi-\nmony between then and trial. Perhaps he tried to interview\nthe Massenburgs but could not ﬁnd them. We just don’t\nknow.\n The state judiciary’s conclusion that the Massenburgs’\ntestimony would not have helped Lee depends on an unstat-\ned belief that, if called at trial, they would have parroted\ntheir aﬃdavits and refused to say another word. That’s un-\nlikely. They might have provided exculpatory testimony,\nand then, if counsel neglected to contact them (another issue\non which the record is short of evidence), a ﬁnding of in-\neﬀective assistance could follow. See, e.g., Washington v.\nSmith, 219 F.3d 620, 631, 635 (7th Cir. 2000); Hall v. Washing-\nton, 106 F.3d 742, 749–50 (7th Cir. 1997).\n After oral argument we invited counsel for both sides to\nﬁle supplemental briefs addressing whether Lee sought an\nevidentiary hearing in state court, what evidence he pro-\nposed to present, and (if Lee asked) why the state judiciary\ndeclined to hold a hearing. Counsel representing Illinois did\nnot respond to this invitation, but Lee responded with en-\nthusiasm and, more important, details. The state-court rec-\n\fNo. 18-1005 5\n\nord contains more than a dozen express requests for eviden-\ntiary hearings—and, as far as we could see, no explanation\nby any state judge why these requests were denied. (Indeed,\nmost of the requests do not appear to have been ruled on.)\n Section 2254(e)(2) begins: “If the applicant has failed to\ndevelop the factual basis of a claim in State court proceed-\nings, the court shall not hold an evidentiary hearing on the\nclaim unless the applicant shows that … .” The “unless”\nclause does not apply, so if Lee “has failed to develop the\nfactual basis of [his] claim” he cannot receive an evidentiary\nhearing. Yet the aﬃdavits, plus the multiple requests for\nhearings, show that he did try to develop a record in state\ncourt.\n What one can say against this is that Lee did not articu-\nlate in state court, as clearly as his lawyers have articulated\nin this appeal, the subjects that a hearing would have cov-\nered: what the aﬃants would have said, had they been\ncalled at trial (and whether trial counsel ever met with them\nto learn what they would have said, if called). Yet by asking\nfor a hearing to explore an ineﬀective-assistance theory—a\ntheory supported by multiple aﬃdavits—Lee strongly im-\nplied what topics would be covered at a hearing. This makes\nit impossible to say that Lee has “failed to develop [in state\ncourt] the factual basis of” his claim. He did what he could,\nand the absence of evidence about what the trial would have\nbeen like, had these aﬃants testiﬁed, must be aqributed to\nthe state judiciary’s failure to aﬀord him a hearing. He is en-\ntitled to one in federal court, and the case is remanded so\nthat one can be held and we can learn what his aqorney did\n(or omiqed) and what the aﬃants would have said on the\nstand at trial. Only once that information has been gathered\n\f6 No. 18-1005\n\ncan the district court make a reliable decision about the in-\neﬀective-assistance claim.\n Our analysis has an additional implication: By deciding\nthe merits without receiving the evidence that Lee sought to\nhave considered, the state judiciary acted unreasonably. Illi-\nnois observes that Cullen v. Pinholster, 563 U.S. 170, 180–86\n(2011), holds that, when 28 U.S.C. §2254(d)(1) requires a fed-\neral court to reject a collateral challenge, the court may not\nhold an evidentiary hearing and consider evidence not pre-\nsented to the state judiciary. Illinois wants us to treat this as\nequivalent to a rule that state courts may insulate their deci-\nsions from federal review by refusing to entertain vital evi-\ndence. Yet a state court’s refusal to consider evidence can\nrender its decision unreasonable under §2254(d)(2) even\nwhen its legal analysis satisﬁes §2254(d)(1).\n Section 2254(d)(2) provides that “a decision that was\nbased on an unreasonable determination of the facts in light\nof the evidence presented in the State court proceeding”\nlacks the shelter of §2254(d) as a whole. If the aﬃdavits were\nall Lee had oﬀered to the state judiciary, then its decision\nmay have been a reasonable application of the law to a rea-\nsonable determination of the facts. But Lee wanted to intro-\nduce more, and the state barred the door. Pinholster concerns\nthe application of §2254(d)(1) to a state court’s legal reason-\ning; it does not prevent a federal court from ﬁnding factual\naspects of a state court’s decision unreasonable under\n§2254(d)(2). See 563 U.S. at 184–85 & n.7. By assuming that\nthe language of the ﬁve aﬃdavits would have been the total-\nity of the witnesses’ testimony had they been called at trial,\nthe state made an unreasonable factual determination under\n\fNo. 18-1005 7\n\n§2254(d)(2), which permits a federal evidentiary hearing un-\nder §2254(e)(2).\n VACATED AND REMANDED", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4362231/", "author_raw": "Frank Hoover Easterbrook"}]}	FLAUM	EASTERBROOK	SCUDDER	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4584978/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Anthony D. Lee, Sr. v. Kevin Kink\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-25\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\n\nNo. 18-1005\nANTHONY D. LEE, SR.,\n Petitioner-Appellant,\n\n v.\n\nKEVIN KINK, Warden, Lawrence Correctional Center,\n Respondent-Appellee.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 11 C 00183 — Edmond E. Chang, Judge.\n ____________________\n\n ARGUED OCTOBER 22, 2018 — DECIDED DECEMBER 21, 2018 —\n AMENDED ON DENIAL OF REHEARING JANUARY 25, 2019\n ____________________\n\n Before FLAUM, EASTERBROOK, and SCUDDER, Circuit Judg-\nes.\n EASTERBROOK, Circuit Judge. After a bench trial, Anthony\nLee was convicted of kidnapping and rape. He is serving\nsentences that add to 100 years’ imprisonment. The state-\ncourt judge found that Lee and his friend Burlmon Manley\nforcibly abducted L.M. about 1 A.M. one day, dragging her\ninto their blue Cadillac while she kicked and screamed. Both\n\f2 No. 18-1005\n\nManley and Lee struck and raped L.M. When L.M. resisted,\nLee retrieved a pistol from the car’s trunk to make her more\ncooperative. About 3 A.M. L.M. escaped and ran naked to a\nnearby house. Police took pictures of L.M.’s bloody face. Lee,\nthe only defense witness, said that L.M. entered the car vol-\nuntarily and that he did not touch her sexually—though be-\nfore trial Lee said that he and L.M. had consensual oral sex.\nThe state judge found that L.M.’s testimony about her ordeal\nwas “very credible” and stated that the pictures showing her\ninjuries, and the testimony of the person who opened the\ndoor to L.M., negated the defense of consent. Lee’s convic-\ntions were aﬃrmed on direct and collateral review. See Peo-\nple v. Lee, 2016 IL App (1st) 152425 (June 30, 2016).\n Lee’s federal petition under 28 U.S.C. §2254 contends that\nhe did not receive eﬀective assistance of counsel. He asserts\nthat before trial his lawyer received ﬁve aﬃdavits that cor-\nroborated Lee’s story or provided exculpatory details, but\nthat counsel did not interview the aﬃants. In Lee’s post-\nconviction proceedings the state judiciary did not hold an\nevidentiary hearing. The appellate decision concluded that\nnone of the ﬁve aﬃdavits is necessarily inconsistent with\nLee’s guilt, while the evidence against him is strong, so the\nabsence of these witnesses at trial was not prejudicial. The\nfederal district judge held that the state court’s decision was\nnot unreasonable, and he denied Lee’s petition. Lee v. Lamb,\n2017 U.S. Dist. LEXIS 198451 (N.D. Ill. Dec. 4, 2017).\n The state court’s decision includes the text of the aﬃda-\nvits, and the district court’s decision summarizes them. It is\nenough for current purposes to give the ﬂavor of how those\ncourts treated the aﬃdavits. Here is the district court’s dis-\n\fNo. 18-1005 3\n\ncussion of aﬃdavits signed by Brian and Gayland Massen-\nburg:\n [T]he Massenburgs stated that they witnessed a white woman\n get into a blue Cadillac. If the woman was indeed L.M., this tes-\n timony would have contradicted L.M.’s assertion that she was\n dragged kicking and screaming into the car, and would have\n supported Lee’s testimony that L.M. willingly joined him and\n Manley. But, as the [Illinois] Appellate Court noted, there are\n some problems with the proposed testimony. First, the Massen-\n burgs identiﬁed the wrong date in their aﬃdavits, stating that\n the event they witnessed was on April 16, when the crime in fact\n happened on April 15. Even without the date mix-up, the Illinois\n Appellate Court reasoned that still the Massenburg’s [sic] testi-\n mony would not have aﬀected the outcome because their aﬃda-\n vits do not clearly identify L.M., Lee, or Manley. The aﬃdavits\n state only that the Massenburgs saw a white woman get into a\n blue Cadillac with two men, but did not provide names or de-\n tailed descriptions. Of course, if defense counsel had called these\n witnesses at trial, then he might have been able to elicit more de-\n tail to establish the likelihood that the individuals the Massen-\n burgs saw were the victim and the defendants. But this testimo-\n ny was not developed (and still has not been developed), and the\n Appellate Court was limited to the aﬃdavits alone. It was not\n unreasonable for the Appellate Court to conclude, on the limited\n record available, that the Massenburg’s [sic] testimony had am-\n biguities that would diminish its exculpatory value.\n\n2017 U.S. Dist. LEXIS 198451 at *16–17 (footnote and citations\nomiqed). This analysis would be convincing, if the law pre-\nvented a court from going beyond the aﬃdavits on collateral\nreview. But it does not; a federal court may hold an eviden-\ntiary hearing if, through no fault of petitioner’s, the state-\ncourt record lacks essential facts. 28 U.S.C. §2254(e)(2).\n The district judge was right to observe that, “if defense\ncounsel had called these witnesses at trial, then he might\nhave been able to elicit more detail to establish the likelihood\n\f4 No. 18-1005\n\nthat the individuals the Massenburgs saw were the victim\nand the defendants.” At trial the Massenburgs may have\navoided the date error and positively identiﬁed L.M., Lee, or\nManley. Yet there are many blue Cadillacs in the world, so\nthe Massenburgs also might have stated that they did not see\nL.M., Lee, or Manley. Perhaps Lee’s lawyer interviewed\nthem and they told him these things, which if so would ex-\nplain why he did not call them at Lee’s trial. Counsel told\nthe state judge at a pretrial conference that “I just have not\nhad time to meet with all these people”, but we don’t know\nwhat, if anything, he did to investigate their potential testi-\nmony between then and trial. Perhaps he tried to interview\nthe Massenburgs but could not ﬁnd them. We just don’t\nknow.\n The state judiciary’s conclusion that the Massenburgs’\ntestimony would not have helped Lee depends on an unstat-\ned belief that, if called at trial, they would have parroted\ntheir aﬃdavits and refused to say another word. That’s un-\nlikely. They might have provided exculpatory testimony,\nand then, if counsel neglected to contact them (another issue\non which the record is short of evidence), a ﬁnding of in-\neﬀective assistance could follow. See, e.g., Washington v.\nSmith, 219 F.3d 620, 631, 635 (7th Cir. 2000); Hall v. Washing-\nton, 106 F.3d 742, 749–50 (7th Cir. 1997).\n After oral argument we invited counsel for both sides to\nﬁle supplemental briefs addressing whether Lee sought an\nevidentiary hearing in state court, what evidence he pro-\nposed to present, and (if Lee asked) why the state judiciary\ndeclined to hold a hearing. Counsel representing Illinois did\nnot respond to this invitation, but Lee responded with en-\nthusiasm and, more important, details. The state-court rec-\n\fNo. 18-1005 5\n\nord contains more than a dozen express requests for eviden-\ntiary hearings—and, as far as we could see, no explanation\nby any state judge why these requests were denied. (Indeed,\nmost of the requests do not appear to have been ruled on.)\n Section 2254(e)(2) begins: “If the applicant has failed to\ndevelop the factual basis of a claim in State court proceed-\nings, the court shall not hold an evidentiary hearing on the\nclaim unless the applicant shows that … .” The “unless”\nclause does not apply, so if Lee “has failed to develop the\nfactual basis of [his] claim” he cannot receive an evidentiary\nhearing. Yet the aﬃdavits, plus the multiple requests for\nhearings, show that he did try to develop a record in state\ncourt.\n What one can say against this is that Lee did not articu-\nlate in state court, as clearly as his lawyers have articulated\nin this appeal, the subjects that a hearing would have cov-\nered: what the aﬃants would have said, had they been\ncalled at trial (and whether trial counsel ever met with them\nto learn what they would have said, if called). Yet by asking\nfor a hearing to explore an ineﬀective-assistance theory—a\ntheory supported by multiple aﬃdavits—Lee strongly im-\nplied what topics would be covered at a hearing. This makes\nit impossible to say that Lee has “failed to develop [in state\ncourt] the factual basis of” his claim. He did what he could,\nand the absence of evidence about what the trial would have\nbeen like, had these aﬃants testiﬁed, must be aqributed to\nthe state judiciary’s failure to aﬀord him a hearing. He is en-\ntitled to one in federal court, and the case is remanded so\nthat one can be held and we can learn what his aqorney did\n(or omiqed) and what the aﬃants would have said on the\nstand at trial. Only once that information has been gathered\n\f6 No. 18-1005\n\ncan the district court make a reliable decision about the in-\neﬀective-assistance claim.\n Our analysis has an additional implication: By deciding\nthe merits without receiving the evidence that Lee sought to\nhave considered, the state judiciary acted unreasonably. Illi-\nnois observes that Cullen v. Pinholster, 563 U.S. 170, 180–86\n(2011), holds that, when 28 U.S.C. §2254(d)(1) requires a fed-\neral court to reject a collateral challenge, the court may not\nhold an evidentiary hearing and consider evidence not pre-\nsented to the state judiciary. Illinois wants us to treat this as\nequivalent to a rule that state courts may insulate their deci-\nsions from federal review by refusing to entertain vital evi-\ndence. Yet a state court’s refusal to consider evidence can\nrender its decision unreasonable under §2254(d)(2) even\nwhen its legal analysis satisﬁes §2254(d)(1).\n Section 2254(d)(2) provides that “a decision that was\nbased on an unreasonable determination of the facts in light\nof the evidence presented in the State court proceeding”\nlacks the shelter of §2254(d) as a whole. If the aﬃdavits were\nall Lee had oﬀered to the state judiciary, then its decision\nmay have been a reasonable application of the law to a rea-\nsonable determination of the facts. But Lee wanted to intro-\nduce more, and the state barred the door. Pinholster concerns\nthe application of §2254(d)(1) to a state court’s legal reason-\ning; it does not prevent a federal court from ﬁnding factual\naspects of a state court’s decision unreasonable under\n§2254(d)(2). See 563 U.S. at 184–85 & n.7. By assuming that\nthe language of the ﬁve aﬃdavits would have been the total-\nity of the witnesses’ testimony had they been called at trial,\nthe state made an unreasonable factual determination under\n\fNo. 18-1005 7\n\n§2254(d)(2), which permits a federal evidentiary hearing un-\nder §2254(e)(2).\n VACATED AND REMANDED\n[END_CASE]", "role": "user" } ]
4,584,991	Brenda Lear SCHEIDLER, Plaintiff-Appellant, v. State of INDIANA, Et Al., Defendants-Appellees.	Brenda Scheidler v. State of Indiana	2019-01-25	17-2543	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Bauer, Manion, Brennan", "parties": "", "opinions": [{"author": "Daniel Anthony Manion", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-2543\nBRENDA LEAR SCHEIDLER,\n Plaintiff-Appellant,\n v.\n\nSTATE OF INDIANA, et al.,\n Defendants-Appellees.\n ____________________\n\n Appeal from the United States District Court for the\n Southern District of Indiana, Indianapolis Division.\n No. 1:14-cv-937-WTL-DML — William T. Lawrence, Judge.\n ____________________\n\n ARGUED OCTOBER 24, 2018 — DECIDED JANUARY 25, 2019\n ____________________\n\n Before BAUER, MANION, and BRENNAN, Circuit Judges.\n MANION, Circuit Judge. Brenda Lear Scheidler worked for\nthe Indiana Department of Insurance (“IDOI”). She sought\naccommodations for disabilities related to her mental health.\nShe asked, among other things, that her coworkers not startle\nher. She received these accommodations for several years. But\non May 28, 2013, a frustrated supervisor reached toward\nScheidler and said, “I could just strangle you.” An\ninvestigation into this workplace incident discovered that\n\f2 No. 17-2543\n\nseveral months earlier Scheidler commented in an elevator\nabout a coworker’s apparent promotion prospects: “It’s who\nyou know and who you blow.”\n IDOI terminated Scheidler. She sued it for disability\ndiscrimination, retaliation, and other claims. She lost some\nclaims at summary judgment and she lost the rest at trial. She\nappeals summary judgment and an evidentiary decision.\nFinding no reversible error, we aﬃrm.\n I. Facts\n Scheidler1 began working for Indiana in a prison in 1999.\nShe learned an inmate wrote in his diary he wanted to torture\nher sexually. Scheidler reacted emotionally and left her\nemployment and sought medical treatment for the trauma. In\n2006, she began working at IDOI as a clerical assistant. She\nreceived good reviews, promotions, and no discipline until\nthe termination at issue here.\n In 2009, IDOI hired a recently released oﬀender. This\napparently scared Scheidler, and as a result she was\ndiagnosed with depression, bipolar disorder, and post-\ntraumatic stress disorder. She took FMLA leave. When she\nreturned, she discussed her condition with her supervisor,\nCindy Donovan, and asked her to comment on any changes\nin Scheidler’s behavior. Scheidler also told other employees,\nincluding Annette Gunter and Ronda Ankney, about the\ndiagnosis. Scheidler asked them not to startle her, be loud, or\napproach suddenly. She says she received these\n\n\n1 At all relevant times while working Lear was her surname. She later\nmarried and added her spouse’s name. On appeal she refers to herself as\n“Scheidler,” so we do, too.\n\fNo. 17-2543 3\n\naccommodations and for several years did not have any\nfurther problems at work until May 28, 2013.\n Gunter and Ankney are sisters-in-law. In 2010, Scheidler\nbegan carpooling with them. By 2013, Gunter supervised\nScheidler for some purposes.\n In 2013, Scheidler applied for a particular position within\nIDOI. Mary Ann Williams, another IDOI employee, also\napplied. As Scheidler, Gunter, and Ankney left work one day\nin March or April 2013, they noticed Williams was not at her\nstation. According to Ankney, Scheidler said, “Oh, it looks\nlike Mary Ann is still upstairs in her interview for her\ngovernment job.”\n “Brenda, don’t we all have government jobs? We’re all\nState employees,” Ankney responded.\n “Well, I mean for her federal job upstairs … I’m sure she’ll\nget it because … it’s who you know and who you blow,”\nScheidler said in the elevator.2 Ankney and Gunter told\nScheidler they disapproved, but did not report this comment\nuntil several months later.\n On May 28, 2013, Scheidler went to Gunter’s oﬃce after\ngetting an email from Donovan about redistribution of duties.\nScheidler sought clarification. Gunter said she did not know\nany more than Scheidler did. After Scheidler left, Gunter went\n\n\n\n\n2 The briefs and record report different versions of this comment. But both\n\nScheidler and Ankney testified Scheidler said, “It’s who you know and\nwho you blow.”\n\f4 No. 17-2543\n\nto Ankney’s cubicle and said, “I don’t know what I’m going\nto do if I don’t string her up by the end of the week.”3\n Overhearing the comment as she walked by, Scheidler\nasked, “Are you talking about me?” Gunter turned, stretched\nher arms out, leaned into Scheidler, made a choking motion,\nand said, “I could just strangle you.” This startled Scheidler.\nA heated exchange ensued. Scheidler mentioned Gunter’s\nmedication. Gunter indicated Scheidler should quit. Gunter\nsaid she wanted to end the carpool. We refer to this encounter\nas the “cubicle episode.” Scheidler told Donovan about it, but\ndid not want a formal investigation. But Donovan notified HR\nDirector Katie Dailey and the State Personnel Department\n(“SPD”). Jeﬀrey Hendrickson of SPD investigated. He\ninterviewed Scheidler and others, including Gunter, and\nlearned of the “blow” comment. He then met with IDOI\nCommissioner Stephen W. Robertson and conveyed the facts.\nRobertson made the disciplinary decisions. He decided to\nissue a written reprimand to Gunter for her inappropriate\nconduct during the cubicle episode. He decided to terminate\nScheidler. IDOI terminated her on July 8, 2013. The reason for\nthis termination is, of course, the heart of this case. Scheidler\nclaims IDOI terminated her for unlawful reasons. But IDOI\nargues it terminated her because of her two instances of\ninappropriate conduct: her “blow” comment in the elevator\nand her participation in the cubicle episode.\n\n\n\n\n3 The briefs and record also report different versions of this statement. The\n\ndifferences are immaterial here. We present the version quoted by Gunter\nduring her trial testimony.\n\fNo. 17-2543 5\n\n II. Procedural Posture\n Scheidler filed twice with the E.E.O.C. She received notices\nof right to sue on both charges. She also pursued\nadministrative relief under Indiana Code 4-15-2.2-24, 42. An\nALJ found in her favor on her disability-based retaliation\nclaim but found in IDOI’s favor on her other claims. The State\nEmployees’ Appeals Commission aﬃrmed, and remanded to\nset damages. But the parties agreed to stay those state\nproceedings pending resolution of the federal case.\n Scheidler filed a complaint with the district court and\namended it twice. The second amended complaint brought\nthree counts against Indiana and IDOI Commissioner\nStephen W. Robertson, in his oﬃcial and personal capacities.\n Count 1 (“Disability Discrimination”) alleged Defendants\ndiscriminated against her because of her disability “by failure\nto accommodate, discrimination and retaliation,” in violation\nof 42 U.S.C. §§ 1981a, 12112, and 12203; 29 U.S.C. § 794; related\nsections; and Indiana disability laws.\n Count 2 (“Sex Discrimination”) alleged Defendants\ndiscriminated against her because she is female, in violation\nof 42 U.S.C. §§ 1981a, 1983, 2000e-2, 2000e-5, and related\nsections.\n Count 3 (“Retaliation”) alleged Defendants discriminated\nagainst her “because she opposed and complained about\ndiscrimination and exercised her rights to free speech,” in\nviolation of 42 U.S.C. §§ 1981a, 1983, 2000e-3, 2000e-5, 12112,\nand 12203; 29 U.S.C. § 794; related sections; Indiana\nwhistleblower laws; and the First Amendments of the United\nStates and Indiana.\n\f6 No. 17-2543\n\n We share the court’s observation that the second amended\ncomplaint does not clearly state what claims Scheidler\nasserts.4 She abandoned some claims. Defendants moved for\nsummary judgment on all remaining claims. She clarified in\nher brief responding to this motion that she pursued claims of\ndisability discrimination, failure to accommodate, and\nretaliation for making complaints of sex and disability\ndiscrimination. The court construed her disability claims as\narising under the ADA and the Rehabilitation Act and her\nretaliation claims as arising under those statutes and Title VII\nof the Civil Rights Act.\n On grounds not raised by Defendants, the court granted\nsummary judgment to Robertson on all claims.\n The court denied summary judgment on the ADA and\nRehabilitation Act claims against Indiana for disparate\ntreatment due to disability. The court found enough evidence\non the prima facie case and pretext to require trial.\n The court granted summary judgment to Indiana on the\nclaim for sex-based retaliation under Title VII. Scheidler\nargued her “blow” comment was a complaint of sex\ndiscrimination and claimed IDOI terminated her in response\nto this complaint. But the court determined she could not\nshow she engaged in statutorily protected activity requisite\nfor a retaliation claim because subjectively she did not have a\n\n\n4 For example, disability and sex discrimination cannot violate § 1983. See\nGillo v. Gary Cmty. Sch. Corp., No. 2:14-CV-99-JVB-JEM, 2016 WL 4592200,\nat *4 (N.D. Ind. Sept. 2, 2016) (collecting cases and noting § 1983 does not\ncreate substantive rights susceptible to violations). And we do not think\n“First Amendment” of Indiana’s Constitution means what she thinks. But\nwe do not hold these discrepancies against her.\n\fNo. 17-2543 7\n\nsincere, good-faith belief she opposed an unlawful practice\nand because objectively her complaint did not involve\ndiscrimination prohibited by Title VII. Without a statutorily\nprotected activity, this retaliation claim fell.\n The court also granted summary judgment to Indiana on\nthe disability-based retaliation claim. Scheidler claimed IDOI\nterminated her in retaliation for complaining of disability\ndiscrimination. But the court noted she did not clearly\narticulate what her complaint of disability discrimination\nwas. The closest she came to articulating a complaint of\ndisability discrimination, according to the court, was: “When\n[Scheidler] complained to human resources about Annette\nGunter threatening her and making a strangling motion at\n[her], she told human resources that she suﬀered from bipolar\ndisorder and PTSD and that is why the situation startled and\nupset her more than it might other people.” But the court\nconcluded she only raised her conditions to explain her\nreaction to Gunter, not to complain anyone discriminated\nbecause of disability. So the court determined she failed even\nto create an inference of statutorily protected activity.\n Finally, the court granted summary judgment for Indiana\non the failure-to-accommodate claim, concluding it was\nsimply her disability-discrimination-disparate-treatment\nclaim worded diﬀerently because the accommodation she\nsought that IDOI failed to give was treatment equal to Gunter.\n So the only claims at trial were for disparate treatment due\nto disability discrimination against Indiana under the ADA\nand the Rehabilitation Act. The jury gave a defense verdict.\n Scheidler appeals the order granting partial summary\njudgment and an evidentiary ruling during trial. We review\n\f8 No. 17-2543\n\nsummary judgment de novo, and will aﬃrm when—viewing\nthe evidence in the light most favorable to the nonmovant and\ndrawing all reasonable inferences in its favor—there is no\ngenuine issue of material fact and the movant is entitled to\njudgment as a matter of law. Barbera v. Pearson Educ., 906 F.3d\n621, 628 (7th Cir. 2018). We may aﬃrm summary judgment\nfor reasons not articulated by the district court so long as the\nrecord supports them, the district court adequately\nconsidered them, and the nonmovant had an opportunity to\ncontest them. Gerhartz v. Richert, 779 F.3d 682, 685 (7th Cir.\n2015).\n A party generally forfeits issues and arguments raised for\nthe first time on appeal. CNH Indus. Am. v. Jones Lang LaSalle\nAm., 882 F.3d 692, 705 (7th Cir. 2018). A party also generally\nforfeits issues and arguments it fails to raise in its initial\nappellate brief. Holman v. Indiana, 211 F.3d 399, 406 (7th Cir.\n2000). Insuﬃciently developed issues and arguments are also\nforfeited. United States v. Austin, 806 F.3d 425, 433 n.2 (7th Cir.\n2015).\n III. Analysis\nA. Redundant claims?\n Scheidler first argues the court erred by concluding her\nfailure-to-accommodate claim was the same as her disability-\ndiscrimination-disparate-treatment claim. The law recognizes\nthe existence of separate claims. The ADA forbids certain\ntypes of disability discrimination: “No covered entity shall\ndiscriminate against a qualified individual on the basis of\ndisability in regard to job application procedures, the hiring,\nadvancement, or discharge of employees, employee\ncompensation, job training, and other terms, conditions, and\n\fNo. 17-2543 9\n\nprivileges of employment.” 42 U.S.C. § 12112(a). The ADA\nthen defines “discriminate against a qualified individual on\nthe basis of disability” to include disparate treatment and\nfailure to accommodate: “not making reasonable\naccommodations to the known physical or mental limitations\nof an otherwise qualified individual with a disability who is\nan applicant or employee … .” 42 U.S.C. § 12112(b)(5)(A).\n A claim for disparate treatment based on disability under\nthe ADA (and the Rehabilitation Act, with immaterial\nnuances) requires proof (1) plaintiﬀ was disabled; (2) plaintiﬀ\nwas qualified to perform essential functions with or without\nreasonable accommodation; and (3) disability was the “but\nfor” cause of adverse employment action. Monroe v. Ind. Dep’t\nof Transp., 871 F.3d 495, 503–04 (7th Cir. 2017); Felix v. Wis.\nDep’t of Transp., 828 F.3d 560, 568 (7th Cir. 2016).\n A claim for failure to accommodate under the ADA (and the\nRehabilitation Act, generally) requires proof (1) plaintiﬀ was\na qualified individual with a disability; (2) defendant was\naware of his disability; and (3) defendant failed to\naccommodate his disability reasonably. E.E.O.C. v. AutoZone,\n809 F.3d 916, 919 (7th Cir. 2016); Brumfield v. City of Chicago,\n735 F.3d 619, 630 (7th Cir. 2013). So two separate claims are\npossible under each statute.\n But neither Scheidler’s second amended complaint nor her\nstatement of claims is clear regarding failure to accommodate.\nThe closest Scheidler comes to advancing a failure-to-\naccommodate claim is under the theory that she asked her\ncoworkers not to startle her, but Gunter threatened to strangle\nher. Yet Scheidler’s own statement of claims tends to\nundermine even this theory, because there she admitted: “The\n\f10 No. 17-2543\n\nState accommodated [my] disability before [I] complained\nabout discrimination in May 2013.”\n Scheidler’s appellate brief is clearer. In the section arguing\nthe court erred by conflating the failure-to-accommodate\nclaim with the disparate-treatment claim, she asserts “the\ndistrict court ignored the fact that Gunter failed to\naccommodate Scheidler on May 28, 2013 by raising her voice,\nmaking a strangling motion at Scheidler, and threatening\nher.” (Appellant’s Br., DE 20 at 26.) The brief does not mention\nany failure to accommodate unrelated to the cubicle episode.\n In any event, even viewing the facts in the light most\nfavorable to her and drawing all reasonable inferences for her,\nwe conclude summary judgment against her on the failure-to-\naccommodate claim was appropriate. The cubicle episode\nwas an isolated, “one-oﬀ” event. She does not allege a failure\nto accommodate apart from the cubicle episode. Indeed, she\nacknowledged there were no problems involving a failure to\naccommodate other than the cubicle episode.5\n\n\n\n5 In 2009, “Scheidler asked that her coworkers not startle her, not make\nany loud noises, and not approach her suddenly because the PTSD made\nher very jumpy. Scheidler continued to request those accommodations,\nand Donovan only told Scheidler once that ‘something is a little different’\nabout her behavior, which Scheidler corrected. There were no problems\nafter that until [the cubicle episode in] May 2013 when Scheidler\ncomplained to Gunter and Donovan that Gunter told Scheidler that\nGunter would like to strangle Scheidler, Gunter moved her hands toward\nScheidler’s throat, and Gunter told Scheidler that Scheidler should leave\nand get another job.” (Appellant’s Br., DE 20 at 6–7, internal citations\nomitted.) “Scheidler had previously requested accommodations of not\nbeing startled, not having loud noises made around her, and not being\napproached suddenly, due to her disability, and Donovan, as well as\n\fNo. 17-2543 11\n\n “Reasonable accommodation under the ADA is a process,\nnot a one-oﬀ event.” Cloe v. City of Indianapolis, 712 F.3d 1171,\n1178 (7th Cir. 2013), overruled on other grounds by Ortiz v.\nWerner Enters., 834 F.3d 760, 764 (7th Cir. 2016). Here,\nScheidler has adduced no evidence that the interactive\nprocess broke down. Even accepting as we do for present\npurposes that she is disabled, that she asked her employer for\nreasonable accommodations, and that Gunter breached the\narrangement on one occasion by threatening to strangle\nScheidler, we cannot escape the facts that Scheidler otherwise\nreceived all the treatment she requested regarding her\ndisability, that she reported this singular cubicle episode to\nDonovan, and that no further problems occurred. IDOI\naddressed Gunter’s misconduct by reprimanding her. That\nthe reprimand did not benefit Scheidler because IDOI\nterminated her the same day is of no moment because IDOI\nwas allowed to terminate her for her misconduct during the\nelevator episode plus her misconduct during the cubicle\nepisode, even if her disability precipitated that misconduct.6\n We do not hold a single event could never support a claim\nfor failure to accommodate. We merely conclude on this\n\nGunter, Ankney, and … other coworkers, had granted those\naccommodations before this incident.” (Id. at 10.)\n6Felix, 828 F.3d at 568–69; Pernice v. City of Chicago, 237 F.3d 783, 785 (7th\nCir. 2001) (“[A]n employee can be terminated for violations … even if the\n… violations occurred under the influence of a disability.”); Palmer v.\nCircuit Court of Cook Cty., Ill., 117 F.3d 351, 352 (7th Cir. 1997) (“There is no\nevidence [plaintiff] was fired because of her mental illness. She was fired\nbecause she threatened to kill another employee. The cause of the threat\nwas … her mental illness … . But if an employer fires an employee because\nof … unacceptable behavior, the fact that that behavior was precipitated\nby a mental illness does not present an issue under the [ADA].”)\n\f12 No. 17-2543\n\nrecord the single cubicle episode does not support this claim.\nAny error in conflating the claim for failure to accommodate\nwith the claim for disparate treatment was therefore harmless.\nB. Retaliation\n Scheidler next argues the court erred in granting summary\njudgment on her retaliation claims.\n1. Title VII retaliation\n Title VII bans employers from retaliating against\nemployees who exercise rights under it. Title VII protects\n“any … employees” who “opposed any practice” banned by\nthe statute, or who “made a charge, testified, assisted, or\nparticipated in any manner in an investigation, proceeding, or\nhearing” under the statute. 42 U.S.C. § 2000e-3(a).\n A retaliation claim requires statutorily protected activity,\nwhich generally involves subjective and objective factors:\n“The plaintiﬀ must not only have a subjective (sincere, good\nfaith) belief that he opposed an unlawful practice; his belief\nmust also be objectively reasonable, which means that the\ncomplaint must involve discrimination that is prohibited by\nTitle VII.” Hamner v. St. Vincent Hosp. and Health Care Ctr., 224\nF.3d 701, 707 (7th Cir. 2000), overruled on other grounds by\nHively v. Ivy Tech Cmty. Coll. Ind., 853 F.3d 339 (7th Cir. 2017).\n Scheidler claims her elevator comment—“It’s who you\nknow and who you blow”—was statutorily protected activity.\nBut the court held she failed both the subjective and objective\nfactors because she did not have a sincere, good-faith belief\nshe opposed an unlawful practice and because her comment\ndid not involve discrimination prohibited by Title VII. The\ncourt noted she testified she did not think her comment was\nsexual. She told the ALJ she did not think “blow” had a sexual\n\fNo. 17-2543 13\n\nconnotation and she meant merely “[b]lowing hot air.”7 The\ncourt noted the possibility a comment could be interpreted to\ninvolve a sex act does not make it a complaint of sex\ndiscrimination. And the court noted she had not provided any\nevidence she rooted her comment in her gender.8\n Scheidler argues the court erred because the IDOI\nconsidered the comment to be a complaint of quid pro quo\nsexual harassment, and an employer’s mistaken belief that an\nemployee engaged in protected activity sustains retaliation.\nFor support, she cites Heﬀernan v. City of Paterson, N.J., 136 S.\nCt. 1412, 1418–19 (2016). But it is distinguishable. It involved\na First Amendment claim, not a Title VII retaliation claim.\nCertainly we are open to persuasion by analogy, but she does\nnot develop suﬃcient arguments for this, and we decline to\nmake them for her. Also the cases are factually\ndistinguishable. In Heﬀernan, defendant mistakenly thought\nplaintiﬀ engaged in protected political speech, and punished\nhim. But in our case, neither party thought the comment was\n\n\n7“Blow” has various potential meanings. Another Lear famously hurls it\nwithout obvious sexual innuendo: “Blow winds … ! Rage, blow!” William\nShakespeare, King Lear, Act III, sc. ii.\n8 Even later, at trial, Scheidler did not characterize “blow” as sexual: “I\nmeant it’s who you know; and when I say, ‘It’s who you blow,’ you know\nyou got somebody that you talk most up to, that knows you in your\nprivate life. Her husband … had been president of the Indiana Insurance\nAssociation. So she was and her husband was known … by the\nCommissioner.” Scheidler did not testify she meant to accuse anyone of\nquid pro quo sexual harassment. She did not testify she meant anyone\nexpected her, as a woman, to give sex to get ahead in her job. She did not\nexplain her comment in relation to her gender. Instead, she testified she\nonly meant to complain about favoritism because Williams and her\nhusband knew the Commissioner. That complaint isn’t protected here.\n\f14 No. 17-2543\n\nan actual complaint of sexual harassment or discrimination.\nThat characterization apparently only arose late in litigation.\nScheidler’s reliance on Thompson v. North American Stainless,\n562 U.S. 170, 173–79 (2011), is also misplaced. That case\nmerely stands for the proposition that a person aggrieved by\nretaliation has standing to sue for it even if that person did\nnot engage in the protected activity but someone else did.\nNeither of these cases requires the conclusion that the\nsubjective component of the Title VII protected-activity\ninquiry is obviated if the employer mistakenly thinks the\nemployee engaged in statutorily protected activity.\n Besides, she oﬀers no evidence that her complaint satisfies\nthe objective factor. She oﬀers no evidence—and does not\neven claim—that the Commissioner (or anyone else with\nIDOI) asked for or received a sex act from Mary Ann Williams\n(or anyone else) in exchange for a promotion or any other\nemployment benefit. She oﬀers no evidence that her elevator\ncomment concerned actual discrimination prohibited by Title\nVII. So the court did not err in granting summary judgment\non the Title VII retaliation claim.\n2. Disability-based retaliation\n Surviving summary judgment on disability-based\nretaliation requires showing (1) statutorily protected activity;\n(2) adverse employment action; and (3) causal connection.\nGuzman v. Brown Cty., 884 F.3d 633, 642 (7th Cir. 2018). The\ncourt granted summary judgment against this claim because\nScheidler failed to show statutorily protected activity. She\nargues the court ignored several protected activities.\n First, she argues the court ignored her complaint about\ndisability discrimination to Gunter during the cubicle episode.\n\fNo. 17-2543 15\n\nThere, Scheidler explained that when Gunter (who did not\nhave a disability) was upset and took Xanax, she was allowed\nto move out of her position. But when Scheidler (who has a\ndisability) was upset, she was not given the same opportunity.\nScheidler cites her testimony before the ALJ. But there are\nnumerous problems with this argument. Foremost among\nthem is forfeiture. In the cited testimony, she never says she\ncomplained to Gunter about disability discrimination.\nScheidler does not say, for example, that she complained that\nGunter received better treatment than Scheidler because\nScheidler is disabled and Gunter is not. Indiana argues for\nforfeiture of this argument for failure to raise it below. In\nreply, Scheidler claims she did raise this argument below, but\nshe only cites a broader portion of her testimony before the\nALJ and two pages from her response to the motion for\nsummary judgment below. Again, nowhere in the cited\nmaterials does she say she complained to Gunter about\ndisability discrimination. So Scheidler forfeited this\nargument. And the record does not support it anyway.\n Second, she argues the court ignored the fact that when\nshe complained to HR about Gunter’s conduct during the\ncubicle episode, Scheidler told HR she suﬀered from bipolar\ndisorder and PTSD and that is why the situation startled and\nupset her particularly. Scheidler argues her statement to HR\nwas itself a complaint that Gunter failed to accommodate\nScheidler as requested. Here, she only cites her testimony\nbefore the ALJ. But the cited testimony does not support her\nargument. Moreover, in neither her initial appellate brief nor\nher reply does she point to a time when she raised this specific\nargument to the district court. The mere fact that Scheidler\nargued below that Gunter and others failed to accommodate\nher disability misses the point. Such an argument is not\n\f16 No. 17-2543\n\ntantamount to an argument that Scheidler complained to HR\nthat Gunter failed to accommodate and then IDOI retaliated\nagainst Scheidler for making that complaint. So she forfeited\nthis argument. Also, the record does not support it. Therefore\nwe need not address the other problems with it.\n Third, she argues the court ignored the fact that her\nstatement to HR that her disabilities explained her reaction to\nGunter was itself a request for an accommodation regarding\nScheidler’s reaction. Here, she only cites the order granting\nsummary judgment. Indiana argues for forfeiture for failure\nto develop. We agree. We also note her response to the motion\nfor summary judgment did not adequately develop this\nargument. And the record does not support it anyway.\n Her remaining arguments regarding disability-based\nretaliation are unavailing. The court committed no reversible\nerror in granting summary judgment on this claim.\nC. Commissioner\n Scheidler brought claims against Indiana and IDOI\nCommissioner Stephen W. Robertson, in both his oﬃcial and\npersonal capacities. The court granted full summary\njudgment to Robertson on grounds not raised by Defendants,\nwithout notice or a reasonable response time, in violation of\nRule 56(f)(2). Appellees admit this was an error. But the error\nwas harmless. Independent of the Robertson irregularity,\nScheidler lost all her claims at summary judgment or trial\nanyway. She oﬀers no satisfactory explanation of how the\npremature summary judgment for Robertson ultimately\nprejudiced her. Finding no reversible error regarding\nsummary judgment, we turn to the trial.\n\fNo. 17-2543 17\n\nD. Exclusion of Thomas evidence\n Donna Thomas was an IDOI employee terminated in\nDecember 2011 after saying a racial slur. HR Director Dailey\ndiscussed Thomas at Scheidler’s ALJ hearing. In moving for\nsummary judgment, Defendants referenced this testimony.\nDefendants asserted they terminated Thomas for her single\nslur. Scheidler challenged this at summary judgment. She\nsaid Thomas committed multiple infractions before the slur,\nDefendants gave her progressive discipline rather than\nimmediate termination, and they did not terminate her for a\nsingle slur.\n At trial, after the direct examination of Scheidler, her\nattorney asked to be allowed to introduce four documents\nfrom Thomas’s personnel file to show IDOI treated a\ncomparable person better than Scheidler. The court denied\nthe admissibility of these documents, but expressly allowed\nthe possibility Scheidler could introduce them through other\nwitnesses. But she failed to pursue this opening. She called no\nfurther witnesses and she did not seek admission of the\ndocuments through any Indiana witness.\n Therefore Scheidler forfeited this evidentiary issue by\nforgoing the court’s invitation to seek admission of the\nexhibits later. See Ennin v. CNH Indus. Am., 878 F.3d 590, 596\n(7th Cir. 2017) (concluding it is “the very essence of waiver”\nto choose not to present evidence when given the\nopportunity). Anyway, the standard of review is abuse of\ndiscretion, Haynes v. Ind. Univ., 902 F.3d 724, 730 (7th Cir.\n2018), and the court did not abuse its discretion.\n Besides, Scheidler has not oﬀered suﬃcient reasons to\nconvince us admission would have changed the outcome.\n\f18 No. 17-2543\n\n IV. Conclusion\n We considered all Scheidler’s arguments and found none\navailing. Finding no reversible error, we AFFIRM.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4362244/", "author_raw": "Daniel Anthony Manion"}]}	BAUER	MANION	BRENNAN	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4584991/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Brenda Lear SCHEIDLER, Plaintiff-Appellant, v. State of INDIANA, Et Al., Defendants-Appellees.\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-25\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-2543\nBRENDA LEAR SCHEIDLER,\n Plaintiff-Appellant,\n v.\n\nSTATE OF INDIANA, et al.,\n Defendants-Appellees.\n ____________________\n\n Appeal from the United States District Court for the\n Southern District of Indiana, Indianapolis Division.\n No. 1:14-cv-937-WTL-DML — William T. Lawrence, Judge.\n ____________________\n\n ARGUED OCTOBER 24, 2018 — DECIDED JANUARY 25, 2019\n ____________________\n\n Before BAUER, MANION, and BRENNAN, Circuit Judges.\n MANION, Circuit Judge. Brenda Lear Scheidler worked for\nthe Indiana Department of Insurance (“IDOI”). She sought\naccommodations for disabilities related to her mental health.\nShe asked, among other things, that her coworkers not startle\nher. She received these accommodations for several years. But\non May 28, 2013, a frustrated supervisor reached toward\nScheidler and said, “I could just strangle you.” An\ninvestigation into this workplace incident discovered that\n\f2 No. 17-2543\n\nseveral months earlier Scheidler commented in an elevator\nabout a coworker’s apparent promotion prospects: “It’s who\nyou know and who you blow.”\n IDOI terminated Scheidler. She sued it for disability\ndiscrimination, retaliation, and other claims. She lost some\nclaims at summary judgment and she lost the rest at trial. She\nappeals summary judgment and an evidentiary decision.\nFinding no reversible error, we aﬃrm.\n I. Facts\n Scheidler1 began working for Indiana in a prison in 1999.\nShe learned an inmate wrote in his diary he wanted to torture\nher sexually. Scheidler reacted emotionally and left her\nemployment and sought medical treatment for the trauma. In\n2006, she began working at IDOI as a clerical assistant. She\nreceived good reviews, promotions, and no discipline until\nthe termination at issue here.\n In 2009, IDOI hired a recently released oﬀender. This\napparently scared Scheidler, and as a result she was\ndiagnosed with depression, bipolar disorder, and post-\ntraumatic stress disorder. She took FMLA leave. When she\nreturned, she discussed her condition with her supervisor,\nCindy Donovan, and asked her to comment on any changes\nin Scheidler’s behavior. Scheidler also told other employees,\nincluding Annette Gunter and Ronda Ankney, about the\ndiagnosis. Scheidler asked them not to startle her, be loud, or\napproach suddenly. She says she received these\n\n\n1 At all relevant times while working Lear was her surname. She later\nmarried and added her spouse’s name. On appeal she refers to herself as\n“Scheidler,” so we do, too.\n\fNo. 17-2543 3\n\naccommodations and for several years did not have any\nfurther problems at work until May 28, 2013.\n Gunter and Ankney are sisters-in-law. In 2010, Scheidler\nbegan carpooling with them. By 2013, Gunter supervised\nScheidler for some purposes.\n In 2013, Scheidler applied for a particular position within\nIDOI. Mary Ann Williams, another IDOI employee, also\napplied. As Scheidler, Gunter, and Ankney left work one day\nin March or April 2013, they noticed Williams was not at her\nstation. According to Ankney, Scheidler said, “Oh, it looks\nlike Mary Ann is still upstairs in her interview for her\ngovernment job.”\n “Brenda, don’t we all have government jobs? We’re all\nState employees,” Ankney responded.\n “Well, I mean for her federal job upstairs … I’m sure she’ll\nget it because … it’s who you know and who you blow,”\nScheidler said in the elevator.2 Ankney and Gunter told\nScheidler they disapproved, but did not report this comment\nuntil several months later.\n On May 28, 2013, Scheidler went to Gunter’s oﬃce after\ngetting an email from Donovan about redistribution of duties.\nScheidler sought clarification. Gunter said she did not know\nany more than Scheidler did. After Scheidler left, Gunter went\n\n\n\n\n2 The briefs and record report different versions of this comment. But both\n\nScheidler and Ankney testified Scheidler said, “It’s who you know and\nwho you blow.”\n\f4 No. 17-2543\n\nto Ankney’s cubicle and said, “I don’t know what I’m going\nto do if I don’t string her up by the end of the week.”3\n Overhearing the comment as she walked by, Scheidler\nasked, “Are you talking about me?” Gunter turned, stretched\nher arms out, leaned into Scheidler, made a choking motion,\nand said, “I could just strangle you.” This startled Scheidler.\nA heated exchange ensued. Scheidler mentioned Gunter’s\nmedication. Gunter indicated Scheidler should quit. Gunter\nsaid she wanted to end the carpool. We refer to this encounter\nas the “cubicle episode.” Scheidler told Donovan about it, but\ndid not want a formal investigation. But Donovan notified HR\nDirector Katie Dailey and the State Personnel Department\n(“SPD”). Jeﬀrey Hendrickson of SPD investigated. He\ninterviewed Scheidler and others, including Gunter, and\nlearned of the “blow” comment. He then met with IDOI\nCommissioner Stephen W. Robertson and conveyed the facts.\nRobertson made the disciplinary decisions. He decided to\nissue a written reprimand to Gunter for her inappropriate\nconduct during the cubicle episode. He decided to terminate\nScheidler. IDOI terminated her on July 8, 2013. The reason for\nthis termination is, of course, the heart of this case. Scheidler\nclaims IDOI terminated her for unlawful reasons. But IDOI\nargues it terminated her because of her two instances of\ninappropriate conduct: her “blow” comment in the elevator\nand her participation in the cubicle episode.\n\n\n\n\n3 The briefs and record also report different versions of this statement. The\n\ndifferences are immaterial here. We present the version quoted by Gunter\nduring her trial testimony.\n\fNo. 17-2543 5\n\n II. Procedural Posture\n Scheidler filed twice with the E.E.O.C. She received notices\nof right to sue on both charges. She also pursued\nadministrative relief under Indiana Code 4-15-2.2-24, 42. An\nALJ found in her favor on her disability-based retaliation\nclaim but found in IDOI’s favor on her other claims. The State\nEmployees’ Appeals Commission aﬃrmed, and remanded to\nset damages. But the parties agreed to stay those state\nproceedings pending resolution of the federal case.\n Scheidler filed a complaint with the district court and\namended it twice. The second amended complaint brought\nthree counts against Indiana and IDOI Commissioner\nStephen W. Robertson, in his oﬃcial and personal capacities.\n Count 1 (“Disability Discrimination”) alleged Defendants\ndiscriminated against her because of her disability “by failure\nto accommodate, discrimination and retaliation,” in violation\nof 42 U.S.C. §§ 1981a, 12112, and 12203; 29 U.S.C. § 794; related\nsections; and Indiana disability laws.\n Count 2 (“Sex Discrimination”) alleged Defendants\ndiscriminated against her because she is female, in violation\nof 42 U.S.C. §§ 1981a, 1983, 2000e-2, 2000e-5, and related\nsections.\n Count 3 (“Retaliation”) alleged Defendants discriminated\nagainst her “because she opposed and complained about\ndiscrimination and exercised her rights to free speech,” in\nviolation of 42 U.S.C. §§ 1981a, 1983, 2000e-3, 2000e-5, 12112,\nand 12203; 29 U.S.C. § 794; related sections; Indiana\nwhistleblower laws; and the First Amendments of the United\nStates and Indiana.\n\f6 No. 17-2543\n\n We share the court’s observation that the second amended\ncomplaint does not clearly state what claims Scheidler\nasserts.4 She abandoned some claims. Defendants moved for\nsummary judgment on all remaining claims. She clarified in\nher brief responding to this motion that she pursued claims of\ndisability discrimination, failure to accommodate, and\nretaliation for making complaints of sex and disability\ndiscrimination. The court construed her disability claims as\narising under the ADA and the Rehabilitation Act and her\nretaliation claims as arising under those statutes and Title VII\nof the Civil Rights Act.\n On grounds not raised by Defendants, the court granted\nsummary judgment to Robertson on all claims.\n The court denied summary judgment on the ADA and\nRehabilitation Act claims against Indiana for disparate\ntreatment due to disability. The court found enough evidence\non the prima facie case and pretext to require trial.\n The court granted summary judgment to Indiana on the\nclaim for sex-based retaliation under Title VII. Scheidler\nargued her “blow” comment was a complaint of sex\ndiscrimination and claimed IDOI terminated her in response\nto this complaint. But the court determined she could not\nshow she engaged in statutorily protected activity requisite\nfor a retaliation claim because subjectively she did not have a\n\n\n4 For example, disability and sex discrimination cannot violate § 1983. See\nGillo v. Gary Cmty. Sch. Corp., No. 2:14-CV-99-JVB-JEM, 2016 WL 4592200,\nat *4 (N.D. Ind. Sept. 2, 2016) (collecting cases and noting § 1983 does not\ncreate substantive rights susceptible to violations). And we do not think\n“First Amendment” of Indiana’s Constitution means what she thinks. But\nwe do not hold these discrepancies against her.\n\fNo. 17-2543 7\n\nsincere, good-faith belief she opposed an unlawful practice\nand because objectively her complaint did not involve\ndiscrimination prohibited by Title VII. Without a statutorily\nprotected activity, this retaliation claim fell.\n The court also granted summary judgment to Indiana on\nthe disability-based retaliation claim. Scheidler claimed IDOI\nterminated her in retaliation for complaining of disability\ndiscrimination. But the court noted she did not clearly\narticulate what her complaint of disability discrimination\nwas. The closest she came to articulating a complaint of\ndisability discrimination, according to the court, was: “When\n[Scheidler] complained to human resources about Annette\nGunter threatening her and making a strangling motion at\n[her], she told human resources that she suﬀered from bipolar\ndisorder and PTSD and that is why the situation startled and\nupset her more than it might other people.” But the court\nconcluded she only raised her conditions to explain her\nreaction to Gunter, not to complain anyone discriminated\nbecause of disability. So the court determined she failed even\nto create an inference of statutorily protected activity.\n Finally, the court granted summary judgment for Indiana\non the failure-to-accommodate claim, concluding it was\nsimply her disability-discrimination-disparate-treatment\nclaim worded diﬀerently because the accommodation she\nsought that IDOI failed to give was treatment equal to Gunter.\n So the only claims at trial were for disparate treatment due\nto disability discrimination against Indiana under the ADA\nand the Rehabilitation Act. The jury gave a defense verdict.\n Scheidler appeals the order granting partial summary\njudgment and an evidentiary ruling during trial. We review\n\f8 No. 17-2543\n\nsummary judgment de novo, and will aﬃrm when—viewing\nthe evidence in the light most favorable to the nonmovant and\ndrawing all reasonable inferences in its favor—there is no\ngenuine issue of material fact and the movant is entitled to\njudgment as a matter of law. Barbera v. Pearson Educ., 906 F.3d\n621, 628 (7th Cir. 2018). We may aﬃrm summary judgment\nfor reasons not articulated by the district court so long as the\nrecord supports them, the district court adequately\nconsidered them, and the nonmovant had an opportunity to\ncontest them. Gerhartz v. Richert, 779 F.3d 682, 685 (7th Cir.\n2015).\n A party generally forfeits issues and arguments raised for\nthe first time on appeal. CNH Indus. Am. v. Jones Lang LaSalle\nAm., 882 F.3d 692, 705 (7th Cir. 2018). A party also generally\nforfeits issues and arguments it fails to raise in its initial\nappellate brief. Holman v. Indiana, 211 F.3d 399, 406 (7th Cir.\n2000). Insuﬃciently developed issues and arguments are also\nforfeited. United States v. Austin, 806 F.3d 425, 433 n.2 (7th Cir.\n2015).\n III. Analysis\nA. Redundant claims?\n Scheidler first argues the court erred by concluding her\nfailure-to-accommodate claim was the same as her disability-\ndiscrimination-disparate-treatment claim. The law recognizes\nthe existence of separate claims. The ADA forbids certain\ntypes of disability discrimination: “No covered entity shall\ndiscriminate against a qualified individual on the basis of\ndisability in regard to job application procedures, the hiring,\nadvancement, or discharge of employees, employee\ncompensation, job training, and other terms, conditions, and\n\fNo. 17-2543 9\n\nprivileges of employment.” 42 U.S.C. § 12112(a). The ADA\nthen defines “discriminate against a qualified individual on\nthe basis of disability” to include disparate treatment and\nfailure to accommodate: “not making reasonable\naccommodations to the known physical or mental limitations\nof an otherwise qualified individual with a disability who is\nan applicant or employee … .” 42 U.S.C. § 12112(b)(5)(A).\n A claim for disparate treatment based on disability under\nthe ADA (and the Rehabilitation Act, with immaterial\nnuances) requires proof (1) plaintiﬀ was disabled; (2) plaintiﬀ\nwas qualified to perform essential functions with or without\nreasonable accommodation; and (3) disability was the “but\nfor” cause of adverse employment action. Monroe v. Ind. Dep’t\nof Transp., 871 F.3d 495, 503–04 (7th Cir. 2017); Felix v. Wis.\nDep’t of Transp., 828 F.3d 560, 568 (7th Cir. 2016).\n A claim for failure to accommodate under the ADA (and the\nRehabilitation Act, generally) requires proof (1) plaintiﬀ was\na qualified individual with a disability; (2) defendant was\naware of his disability; and (3) defendant failed to\naccommodate his disability reasonably. E.E.O.C. v. AutoZone,\n809 F.3d 916, 919 (7th Cir. 2016); Brumfield v. City of Chicago,\n735 F.3d 619, 630 (7th Cir. 2013). So two separate claims are\npossible under each statute.\n But neither Scheidler’s second amended complaint nor her\nstatement of claims is clear regarding failure to accommodate.\nThe closest Scheidler comes to advancing a failure-to-\naccommodate claim is under the theory that she asked her\ncoworkers not to startle her, but Gunter threatened to strangle\nher. Yet Scheidler’s own statement of claims tends to\nundermine even this theory, because there she admitted: “The\n\f10 No. 17-2543\n\nState accommodated [my] disability before [I] complained\nabout discrimination in May 2013.”\n Scheidler’s appellate brief is clearer. In the section arguing\nthe court erred by conflating the failure-to-accommodate\nclaim with the disparate-treatment claim, she asserts “the\ndistrict court ignored the fact that Gunter failed to\naccommodate Scheidler on May 28, 2013 by raising her voice,\nmaking a strangling motion at Scheidler, and threatening\nher.” (Appellant’s Br., DE 20 at 26.) The brief does not mention\nany failure to accommodate unrelated to the cubicle episode.\n In any event, even viewing the facts in the light most\nfavorable to her and drawing all reasonable inferences for her,\nwe conclude summary judgment against her on the failure-to-\naccommodate claim was appropriate. The cubicle episode\nwas an isolated, “one-oﬀ” event. She does not allege a failure\nto accommodate apart from the cubicle episode. Indeed, she\nacknowledged there were no problems involving a failure to\naccommodate other than the cubicle episode.5\n\n\n\n5 In 2009, “Scheidler asked that her coworkers not startle her, not make\nany loud noises, and not approach her suddenly because the PTSD made\nher very jumpy. Scheidler continued to request those accommodations,\nand Donovan only told Scheidler once that ‘something is a little different’\nabout her behavior, which Scheidler corrected. There were no problems\nafter that until [the cubicle episode in] May 2013 when Scheidler\ncomplained to Gunter and Donovan that Gunter told Scheidler that\nGunter would like to strangle Scheidler, Gunter moved her hands toward\nScheidler’s throat, and Gunter told Scheidler that Scheidler should leave\nand get another job.” (Appellant’s Br., DE 20 at 6–7, internal citations\nomitted.) “Scheidler had previously requested accommodations of not\nbeing startled, not having loud noises made around her, and not being\napproached suddenly, due to her disability, and Donovan, as well as\n\fNo. 17-2543 11\n\n “Reasonable accommodation under the ADA is a process,\nnot a one-oﬀ event.” Cloe v. City of Indianapolis, 712 F.3d 1171,\n1178 (7th Cir. 2013), overruled on other grounds by Ortiz v.\nWerner Enters., 834 F.3d 760, 764 (7th Cir. 2016). Here,\nScheidler has adduced no evidence that the interactive\nprocess broke down. Even accepting as we do for present\npurposes that she is disabled, that she asked her employer for\nreasonable accommodations, and that Gunter breached the\narrangement on one occasion by threatening to strangle\nScheidler, we cannot escape the facts that Scheidler otherwise\nreceived all the treatment she requested regarding her\ndisability, that she reported this singular cubicle episode to\nDonovan, and that no further problems occurred. IDOI\naddressed Gunter’s misconduct by reprimanding her. That\nthe reprimand did not benefit Scheidler because IDOI\nterminated her the same day is of no moment because IDOI\nwas allowed to terminate her for her misconduct during the\nelevator episode plus her misconduct during the cubicle\nepisode, even if her disability precipitated that misconduct.6\n We do not hold a single event could never support a claim\nfor failure to accommodate. We merely conclude on this\n\nGunter, Ankney, and … other coworkers, had granted those\naccommodations before this incident.” (Id. at 10.)\n6Felix, 828 F.3d at 568–69; Pernice v. City of Chicago, 237 F.3d 783, 785 (7th\nCir. 2001) (“[A]n employee can be terminated for violations … even if the\n… violations occurred under the influence of a disability.”); Palmer v.\nCircuit Court of Cook Cty., Ill., 117 F.3d 351, 352 (7th Cir. 1997) (“There is no\nevidence [plaintiff] was fired because of her mental illness. She was fired\nbecause she threatened to kill another employee. The cause of the threat\nwas … her mental illness … . But if an employer fires an employee because\nof … unacceptable behavior, the fact that that behavior was precipitated\nby a mental illness does not present an issue under the [ADA].”)\n\f12 No. 17-2543\n\nrecord the single cubicle episode does not support this claim.\nAny error in conflating the claim for failure to accommodate\nwith the claim for disparate treatment was therefore harmless.\nB. Retaliation\n Scheidler next argues the court erred in granting summary\njudgment on her retaliation claims.\n1. Title VII retaliation\n Title VII bans employers from retaliating against\nemployees who exercise rights under it. Title VII protects\n“any … employees” who “opposed any practice” banned by\nthe statute, or who “made a charge, testified, assisted, or\nparticipated in any manner in an investigation, proceeding, or\nhearing” under the statute. 42 U.S.C. § 2000e-3(a).\n A retaliation claim requires statutorily protected activity,\nwhich generally involves subjective and objective factors:\n“The plaintiﬀ must not only have a subjective (sincere, good\nfaith) belief that he opposed an unlawful practice; his belief\nmust also be objectively reasonable, which means that the\ncomplaint must involve discrimination that is prohibited by\nTitle VII.” Hamner v. St. Vincent Hosp. and Health Care Ctr., 224\nF.3d 701, 707 (7th Cir. 2000), overruled on other grounds by\nHively v. Ivy Tech Cmty. Coll. Ind., 853 F.3d 339 (7th Cir. 2017).\n Scheidler claims her elevator comment—“It’s who you\nknow and who you blow”—was statutorily protected activity.\nBut the court held she failed both the subjective and objective\nfactors because she did not have a sincere, good-faith belief\nshe opposed an unlawful practice and because her comment\ndid not involve discrimination prohibited by Title VII. The\ncourt noted she testified she did not think her comment was\nsexual. She told the ALJ she did not think “blow” had a sexual\n\fNo. 17-2543 13\n\nconnotation and she meant merely “[b]lowing hot air.”7 The\ncourt noted the possibility a comment could be interpreted to\ninvolve a sex act does not make it a complaint of sex\ndiscrimination. And the court noted she had not provided any\nevidence she rooted her comment in her gender.8\n Scheidler argues the court erred because the IDOI\nconsidered the comment to be a complaint of quid pro quo\nsexual harassment, and an employer’s mistaken belief that an\nemployee engaged in protected activity sustains retaliation.\nFor support, she cites Heﬀernan v. City of Paterson, N.J., 136 S.\nCt. 1412, 1418–19 (2016). But it is distinguishable. It involved\na First Amendment claim, not a Title VII retaliation claim.\nCertainly we are open to persuasion by analogy, but she does\nnot develop suﬃcient arguments for this, and we decline to\nmake them for her. Also the cases are factually\ndistinguishable. In Heﬀernan, defendant mistakenly thought\nplaintiﬀ engaged in protected political speech, and punished\nhim. But in our case, neither party thought the comment was\n\n\n7“Blow” has various potential meanings. Another Lear famously hurls it\nwithout obvious sexual innuendo: “Blow winds … ! Rage, blow!” William\nShakespeare, King Lear, Act III, sc. ii.\n8 Even later, at trial, Scheidler did not characterize “blow” as sexual: “I\nmeant it’s who you know; and when I say, ‘It’s who you blow,’ you know\nyou got somebody that you talk most up to, that knows you in your\nprivate life. Her husband … had been president of the Indiana Insurance\nAssociation. So she was and her husband was known … by the\nCommissioner.” Scheidler did not testify she meant to accuse anyone of\nquid pro quo sexual harassment. She did not testify she meant anyone\nexpected her, as a woman, to give sex to get ahead in her job. She did not\nexplain her comment in relation to her gender. Instead, she testified she\nonly meant to complain about favoritism because Williams and her\nhusband knew the Commissioner. That complaint isn’t protected here.\n\f14 No. 17-2543\n\nan actual complaint of sexual harassment or discrimination.\nThat characterization apparently only arose late in litigation.\nScheidler’s reliance on Thompson v. North American Stainless,\n562 U.S. 170, 173–79 (2011), is also misplaced. That case\nmerely stands for the proposition that a person aggrieved by\nretaliation has standing to sue for it even if that person did\nnot engage in the protected activity but someone else did.\nNeither of these cases requires the conclusion that the\nsubjective component of the Title VII protected-activity\ninquiry is obviated if the employer mistakenly thinks the\nemployee engaged in statutorily protected activity.\n Besides, she oﬀers no evidence that her complaint satisfies\nthe objective factor. She oﬀers no evidence—and does not\neven claim—that the Commissioner (or anyone else with\nIDOI) asked for or received a sex act from Mary Ann Williams\n(or anyone else) in exchange for a promotion or any other\nemployment benefit. She oﬀers no evidence that her elevator\ncomment concerned actual discrimination prohibited by Title\nVII. So the court did not err in granting summary judgment\non the Title VII retaliation claim.\n2. Disability-based retaliation\n Surviving summary judgment on disability-based\nretaliation requires showing (1) statutorily protected activity;\n(2) adverse employment action; and (3) causal connection.\nGuzman v. Brown Cty., 884 F.3d 633, 642 (7th Cir. 2018). The\ncourt granted summary judgment against this claim because\nScheidler failed to show statutorily protected activity. She\nargues the court ignored several protected activities.\n First, she argues the court ignored her complaint about\ndisability discrimination to Gunter during the cubicle episode.\n\fNo. 17-2543 15\n\nThere, Scheidler explained that when Gunter (who did not\nhave a disability) was upset and took Xanax, she was allowed\nto move out of her position. But when Scheidler (who has a\ndisability) was upset, she was not given the same opportunity.\nScheidler cites her testimony before the ALJ. But there are\nnumerous problems with this argument. Foremost among\nthem is forfeiture. In the cited testimony, she never says she\ncomplained to Gunter about disability discrimination.\nScheidler does not say, for example, that she complained that\nGunter received better treatment than Scheidler because\nScheidler is disabled and Gunter is not. Indiana argues for\nforfeiture of this argument for failure to raise it below. In\nreply, Scheidler claims she did raise this argument below, but\nshe only cites a broader portion of her testimony before the\nALJ and two pages from her response to the motion for\nsummary judgment below. Again, nowhere in the cited\nmaterials does she say she complained to Gunter about\ndisability discrimination. So Scheidler forfeited this\nargument. And the record does not support it anyway.\n Second, she argues the court ignored the fact that when\nshe complained to HR about Gunter’s conduct during the\ncubicle episode, Scheidler told HR she suﬀered from bipolar\ndisorder and PTSD and that is why the situation startled and\nupset her particularly. Scheidler argues her statement to HR\nwas itself a complaint that Gunter failed to accommodate\nScheidler as requested. Here, she only cites her testimony\nbefore the ALJ. But the cited testimony does not support her\nargument. Moreover, in neither her initial appellate brief nor\nher reply does she point to a time when she raised this specific\nargument to the district court. The mere fact that Scheidler\nargued below that Gunter and others failed to accommodate\nher disability misses the point. Such an argument is not\n\f16 No. 17-2543\n\ntantamount to an argument that Scheidler complained to HR\nthat Gunter failed to accommodate and then IDOI retaliated\nagainst Scheidler for making that complaint. So she forfeited\nthis argument. Also, the record does not support it. Therefore\nwe need not address the other problems with it.\n Third, she argues the court ignored the fact that her\nstatement to HR that her disabilities explained her reaction to\nGunter was itself a request for an accommodation regarding\nScheidler’s reaction. Here, she only cites the order granting\nsummary judgment. Indiana argues for forfeiture for failure\nto develop. We agree. We also note her response to the motion\nfor summary judgment did not adequately develop this\nargument. And the record does not support it anyway.\n Her remaining arguments regarding disability-based\nretaliation are unavailing. The court committed no reversible\nerror in granting summary judgment on this claim.\nC. Commissioner\n Scheidler brought claims against Indiana and IDOI\nCommissioner Stephen W. Robertson, in both his oﬃcial and\npersonal capacities. The court granted full summary\njudgment to Robertson on grounds not raised by Defendants,\nwithout notice or a reasonable response time, in violation of\nRule 56(f)(2). Appellees admit this was an error. But the error\nwas harmless. Independent of the Robertson irregularity,\nScheidler lost all her claims at summary judgment or trial\nanyway. She oﬀers no satisfactory explanation of how the\npremature summary judgment for Robertson ultimately\nprejudiced her. Finding no reversible error regarding\nsummary judgment, we turn to the trial.\n\fNo. 17-2543 17\n\nD. Exclusion of Thomas evidence\n Donna Thomas was an IDOI employee terminated in\nDecember 2011 after saying a racial slur. HR Director Dailey\ndiscussed Thomas at Scheidler’s ALJ hearing. In moving for\nsummary judgment, Defendants referenced this testimony.\nDefendants asserted they terminated Thomas for her single\nslur. Scheidler challenged this at summary judgment. She\nsaid Thomas committed multiple infractions before the slur,\nDefendants gave her progressive discipline rather than\nimmediate termination, and they did not terminate her for a\nsingle slur.\n At trial, after the direct examination of Scheidler, her\nattorney asked to be allowed to introduce four documents\nfrom Thomas’s personnel file to show IDOI treated a\ncomparable person better than Scheidler. The court denied\nthe admissibility of these documents, but expressly allowed\nthe possibility Scheidler could introduce them through other\nwitnesses. But she failed to pursue this opening. She called no\nfurther witnesses and she did not seek admission of the\ndocuments through any Indiana witness.\n Therefore Scheidler forfeited this evidentiary issue by\nforgoing the court’s invitation to seek admission of the\nexhibits later. See Ennin v. CNH Indus. Am., 878 F.3d 590, 596\n(7th Cir. 2017) (concluding it is “the very essence of waiver”\nto choose not to present evidence when given the\nopportunity). Anyway, the standard of review is abuse of\ndiscretion, Haynes v. Ind. Univ., 902 F.3d 724, 730 (7th Cir.\n2018), and the court did not abuse its discretion.\n Besides, Scheidler has not oﬀered suﬃcient reasons to\nconvince us admission would have changed the outcome.\n\f18 No. 17-2543\n\n IV. Conclusion\n We considered all Scheidler’s arguments and found none\navailing. Finding no reversible error, we AFFIRM.\n[END_CASE]", "role": "user" } ]
4,584,993		Anthony D. Lee, Sr. v. Kevin Kink	2019-01-25	18-1005	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before FLAUM, EASTERBROOK, and SCUDDER, Circuit Judg- es.", "parties": "", "opinions": [{"author": "Frank Hoover Easterbrook", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\n\nNo. 18-1005\nANTHONY D. LEE, SR.,\n Petitioner-Appellant,\n\n v.\n\nKEVIN KINK, Warden, Lawrence Correctional Center,\n Respondent-Appellee.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 11 C 00183 — Edmond E. Chang, Judge.\n ____________________\n\n ARGUED OCTOBER 22, 2018 — DECIDED DECEMBER 21, 2018 —\n AMENDED ON DENIAL OF REHEARING JANUARY 25, 2019\n ____________________\n\n Before FLAUM, EASTERBROOK, and SCUDDER, Circuit Judg-\nes.\n EASTERBROOK, Circuit Judge. After a bench trial, Anthony\nLee was convicted of kidnapping and rape. He is serving\nsentences that add to 100 years’ imprisonment. The state-\ncourt judge found that Lee and his friend Burlmon Manley\nforcibly abducted L.M. about 1 A.M. one day, dragging her\ninto their blue Cadillac while she kicked and screamed. Both\n\f2 No. 18-1005\n\nManley and Lee struck and raped L.M. When L.M. resisted,\nLee retrieved a pistol from the car’s trunk to make her more\ncooperative. About 3 A.M. L.M. escaped and ran naked to a\nnearby house. Police took pictures of L.M.’s bloody face. Lee,\nthe only defense witness, said that L.M. entered the car vol-\nuntarily and that he did not touch her sexually—though be-\nfore trial Lee said that he and L.M. had consensual oral sex.\nThe state judge found that L.M.’s testimony about her ordeal\nwas “very credible” and stated that the pictures showing her\ninjuries, and the testimony of the person who opened the\ndoor to L.M., negated the defense of consent. Lee’s convic-\ntions were aﬃrmed on direct and collateral review. See Peo-\nple v. Lee, 2016 IL App (1st) 152425 (June 30, 2016).\n Lee’s federal petition under 28 U.S.C. §2254 contends that\nhe did not receive eﬀective assistance of counsel. He asserts\nthat before trial his lawyer received ﬁve aﬃdavits that cor-\nroborated Lee’s story or provided exculpatory details, but\nthat counsel did not interview the aﬃants. In Lee’s post-\nconviction proceedings the state judiciary did not hold an\nevidentiary hearing. The appellate decision concluded that\nnone of the ﬁve aﬃdavits is necessarily inconsistent with\nLee’s guilt, while the evidence against him is strong, so the\nabsence of these witnesses at trial was not prejudicial. The\nfederal district judge held that the state court’s decision was\nnot unreasonable, and he denied Lee’s petition. Lee v. Lamb,\n2017 U.S. Dist. LEXIS 198451 (N.D. Ill. Dec. 4, 2017).\n The state court’s decision includes the text of the aﬃda-\nvits, and the district court’s decision summarizes them. It is\nenough for current purposes to give the ﬂavor of how those\ncourts treated the aﬃdavits. Here is the district court’s dis-\n\fNo. 18-1005 3\n\ncussion of aﬃdavits signed by Brian and Gayland Massen-\nburg:\n [T]he Massenburgs stated that they witnessed a white woman\n get into a blue Cadillac. If the woman was indeed L.M., this tes-\n timony would have contradicted L.M.’s assertion that she was\n dragged kicking and screaming into the car, and would have\n supported Lee’s testimony that L.M. willingly joined him and\n Manley. But, as the [Illinois] Appellate Court noted, there are\n some problems with the proposed testimony. First, the Massen-\n burgs identiﬁed the wrong date in their aﬃdavits, stating that\n the event they witnessed was on April 16, when the crime in fact\n happened on April 15. Even without the date mix-up, the Illinois\n Appellate Court reasoned that still the Massenburg’s [sic] testi-\n mony would not have aﬀected the outcome because their aﬃda-\n vits do not clearly identify L.M., Lee, or Manley. The aﬃdavits\n state only that the Massenburgs saw a white woman get into a\n blue Cadillac with two men, but did not provide names or de-\n tailed descriptions. Of course, if defense counsel had called these\n witnesses at trial, then he might have been able to elicit more de-\n tail to establish the likelihood that the individuals the Massen-\n burgs saw were the victim and the defendants. But this testimo-\n ny was not developed (and still has not been developed), and the\n Appellate Court was limited to the aﬃdavits alone. It was not\n unreasonable for the Appellate Court to conclude, on the limited\n record available, that the Massenburg’s [sic] testimony had am-\n biguities that would diminish its exculpatory value.\n\n2017 U.S. Dist. LEXIS 198451 at *16–17 (footnote and citations\nomiqed). This analysis would be convincing, if the law pre-\nvented a court from going beyond the aﬃdavits on collateral\nreview. But it does not; a federal court may hold an eviden-\ntiary hearing if, through no fault of petitioner’s, the state-\ncourt record lacks essential facts. 28 U.S.C. §2254(e)(2).\n The district judge was right to observe that, “if defense\ncounsel had called these witnesses at trial, then he might\nhave been able to elicit more detail to establish the likelihood\n\f4 No. 18-1005\n\nthat the individuals the Massenburgs saw were the victim\nand the defendants.” At trial the Massenburgs may have\navoided the date error and positively identiﬁed L.M., Lee, or\nManley. Yet there are many blue Cadillacs in the world, so\nthe Massenburgs also might have stated that they did not see\nL.M., Lee, or Manley. Perhaps Lee’s lawyer interviewed\nthem and they told him these things, which if so would ex-\nplain why he did not call them at Lee’s trial. Counsel told\nthe state judge at a pretrial conference that “I just have not\nhad time to meet with all these people”, but we don’t know\nwhat, if anything, he did to investigate their potential testi-\nmony between then and trial. Perhaps he tried to interview\nthe Massenburgs but could not ﬁnd them. We just don’t\nknow.\n The state judiciary’s conclusion that the Massenburgs’\ntestimony would not have helped Lee depends on an unstat-\ned belief that, if called at trial, they would have parroted\ntheir aﬃdavits and refused to say another word. That’s un-\nlikely. They might have provided exculpatory testimony,\nand then, if counsel neglected to contact them (another issue\non which the record is short of evidence), a ﬁnding of in-\neﬀective assistance could follow. See, e.g., Washington v.\nSmith, 219 F.3d 620, 631, 635 (7th Cir. 2000); Hall v. Washing-\nton, 106 F.3d 742, 749–50 (7th Cir. 1997).\n After oral argument we invited counsel for both sides to\nﬁle supplemental briefs addressing whether Lee sought an\nevidentiary hearing in state court, what evidence he pro-\nposed to present, and (if Lee asked) why the state judiciary\ndeclined to hold a hearing. Counsel representing Illinois did\nnot respond to this invitation, but Lee responded with en-\nthusiasm and, more important, details. The state-court rec-\n\fNo. 18-1005 5\n\nord contains more than a dozen express requests for eviden-\ntiary hearings—and, as far as we could see, no explanation\nby any state judge why these requests were denied. (Indeed,\nmost of the requests do not appear to have been ruled on.)\n Section 2254(e)(2) begins: “If the applicant has failed to\ndevelop the factual basis of a claim in State court proceed-\nings, the court shall not hold an evidentiary hearing on the\nclaim unless the applicant shows that … .” The “unless”\nclause does not apply, so if Lee “has failed to develop the\nfactual basis of [his] claim” he cannot receive an evidentiary\nhearing. Yet the aﬃdavits, plus the multiple requests for\nhearings, show that he did try to develop a record in state\ncourt.\n What one can say against this is that Lee did not articu-\nlate in state court, as clearly as his lawyers have articulated\nin this appeal, the subjects that a hearing would have cov-\nered: what the aﬃants would have said, had they been\ncalled at trial (and whether trial counsel ever met with them\nto learn what they would have said, if called). Yet by asking\nfor a hearing to explore an ineﬀective-assistance theory—a\ntheory supported by multiple aﬃdavits—Lee strongly im-\nplied what topics would be covered at a hearing. This makes\nit impossible to say that Lee has “failed to develop [in state\ncourt] the factual basis of” his claim. He did what he could,\nand the absence of evidence about what the trial would have\nbeen like, had these aﬃants testiﬁed, must be aqributed to\nthe state judiciary’s failure to aﬀord him a hearing. He is en-\ntitled to one in federal court, and the case is remanded so\nthat one can be held and we can learn what his aqorney did\n(or omiqed) and what the aﬃants would have said on the\nstand at trial. Only once that information has been gathered\n\f6 No. 18-1005\n\ncan the district court make a reliable decision about the in-\neﬀective-assistance claim.\n Our analysis has an additional implication: By deciding\nthe merits without receiving the evidence that Lee sought to\nhave considered, the state judiciary acted unreasonably. Illi-\nnois observes that Cullen v. Pinholster, 563 U.S. 170, 180–86\n(2011), holds that, when 28 U.S.C. §2254(d)(1) requires a fed-\neral court to reject a collateral challenge, the court may not\nhold an evidentiary hearing and consider evidence not pre-\nsented to the state judiciary. Illinois wants us to treat this as\nequivalent to a rule that state courts may insulate their deci-\nsions from federal review by refusing to entertain vital evi-\ndence. Yet a state court’s refusal to consider evidence can\nrender its decision unreasonable under §2254(d)(2) even\nwhen its legal analysis satisﬁes §2254(d)(1).\n Section 2254(d)(2) provides that “a decision that was\nbased on an unreasonable determination of the facts in light\nof the evidence presented in the State court proceeding”\nlacks the shelter of §2254(d) as a whole. If the aﬃdavits were\nall Lee had oﬀered to the state judiciary, then its decision\nmay have been a reasonable application of the law to a rea-\nsonable determination of the facts. But Lee wanted to intro-\nduce more, and the state barred the door. Pinholster concerns\nthe application of §2254(d)(1) to a state court’s legal reason-\ning; it does not prevent a federal court from ﬁnding factual\naspects of a state court’s decision unreasonable under\n§2254(d)(2). See 563 U.S. at 184–85 & n.7. By assuming that\nthe language of the ﬁve aﬃdavits would have been the total-\nity of the witnesses’ testimony had they been called at trial,\nthe state made an unreasonable factual determination under\n\fNo. 18-1005 7\n\n§2254(d)(2), which permits a federal evidentiary hearing un-\nder §2254(e)(2).\n VACATED AND REMANDED", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4362246/", "author_raw": "Frank Hoover Easterbrook"}]}	FLAUM	EASTERBROOK	SCUDDER	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4584993/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Anthony D. Lee, Sr. v. Kevin Kink\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-25\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\n\nNo. 18-1005\nANTHONY D. LEE, SR.,\n Petitioner-Appellant,\n\n v.\n\nKEVIN KINK, Warden, Lawrence Correctional Center,\n Respondent-Appellee.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 11 C 00183 — Edmond E. Chang, Judge.\n ____________________\n\n ARGUED OCTOBER 22, 2018 — DECIDED DECEMBER 21, 2018 —\n AMENDED ON DENIAL OF REHEARING JANUARY 25, 2019\n ____________________\n\n Before FLAUM, EASTERBROOK, and SCUDDER, Circuit Judg-\nes.\n EASTERBROOK, Circuit Judge. After a bench trial, Anthony\nLee was convicted of kidnapping and rape. He is serving\nsentences that add to 100 years’ imprisonment. The state-\ncourt judge found that Lee and his friend Burlmon Manley\nforcibly abducted L.M. about 1 A.M. one day, dragging her\ninto their blue Cadillac while she kicked and screamed. Both\n\f2 No. 18-1005\n\nManley and Lee struck and raped L.M. When L.M. resisted,\nLee retrieved a pistol from the car’s trunk to make her more\ncooperative. About 3 A.M. L.M. escaped and ran naked to a\nnearby house. Police took pictures of L.M.’s bloody face. Lee,\nthe only defense witness, said that L.M. entered the car vol-\nuntarily and that he did not touch her sexually—though be-\nfore trial Lee said that he and L.M. had consensual oral sex.\nThe state judge found that L.M.’s testimony about her ordeal\nwas “very credible” and stated that the pictures showing her\ninjuries, and the testimony of the person who opened the\ndoor to L.M., negated the defense of consent. Lee’s convic-\ntions were aﬃrmed on direct and collateral review. See Peo-\nple v. Lee, 2016 IL App (1st) 152425 (June 30, 2016).\n Lee’s federal petition under 28 U.S.C. §2254 contends that\nhe did not receive eﬀective assistance of counsel. He asserts\nthat before trial his lawyer received ﬁve aﬃdavits that cor-\nroborated Lee’s story or provided exculpatory details, but\nthat counsel did not interview the aﬃants. In Lee’s post-\nconviction proceedings the state judiciary did not hold an\nevidentiary hearing. The appellate decision concluded that\nnone of the ﬁve aﬃdavits is necessarily inconsistent with\nLee’s guilt, while the evidence against him is strong, so the\nabsence of these witnesses at trial was not prejudicial. The\nfederal district judge held that the state court’s decision was\nnot unreasonable, and he denied Lee’s petition. Lee v. Lamb,\n2017 U.S. Dist. LEXIS 198451 (N.D. Ill. Dec. 4, 2017).\n The state court’s decision includes the text of the aﬃda-\nvits, and the district court’s decision summarizes them. It is\nenough for current purposes to give the ﬂavor of how those\ncourts treated the aﬃdavits. Here is the district court’s dis-\n\fNo. 18-1005 3\n\ncussion of aﬃdavits signed by Brian and Gayland Massen-\nburg:\n [T]he Massenburgs stated that they witnessed a white woman\n get into a blue Cadillac. If the woman was indeed L.M., this tes-\n timony would have contradicted L.M.’s assertion that she was\n dragged kicking and screaming into the car, and would have\n supported Lee’s testimony that L.M. willingly joined him and\n Manley. But, as the [Illinois] Appellate Court noted, there are\n some problems with the proposed testimony. First, the Massen-\n burgs identiﬁed the wrong date in their aﬃdavits, stating that\n the event they witnessed was on April 16, when the crime in fact\n happened on April 15. Even without the date mix-up, the Illinois\n Appellate Court reasoned that still the Massenburg’s [sic] testi-\n mony would not have aﬀected the outcome because their aﬃda-\n vits do not clearly identify L.M., Lee, or Manley. The aﬃdavits\n state only that the Massenburgs saw a white woman get into a\n blue Cadillac with two men, but did not provide names or de-\n tailed descriptions. Of course, if defense counsel had called these\n witnesses at trial, then he might have been able to elicit more de-\n tail to establish the likelihood that the individuals the Massen-\n burgs saw were the victim and the defendants. But this testimo-\n ny was not developed (and still has not been developed), and the\n Appellate Court was limited to the aﬃdavits alone. It was not\n unreasonable for the Appellate Court to conclude, on the limited\n record available, that the Massenburg’s [sic] testimony had am-\n biguities that would diminish its exculpatory value.\n\n2017 U.S. Dist. LEXIS 198451 at *16–17 (footnote and citations\nomiqed). This analysis would be convincing, if the law pre-\nvented a court from going beyond the aﬃdavits on collateral\nreview. But it does not; a federal court may hold an eviden-\ntiary hearing if, through no fault of petitioner’s, the state-\ncourt record lacks essential facts. 28 U.S.C. §2254(e)(2).\n The district judge was right to observe that, “if defense\ncounsel had called these witnesses at trial, then he might\nhave been able to elicit more detail to establish the likelihood\n\f4 No. 18-1005\n\nthat the individuals the Massenburgs saw were the victim\nand the defendants.” At trial the Massenburgs may have\navoided the date error and positively identiﬁed L.M., Lee, or\nManley. Yet there are many blue Cadillacs in the world, so\nthe Massenburgs also might have stated that they did not see\nL.M., Lee, or Manley. Perhaps Lee’s lawyer interviewed\nthem and they told him these things, which if so would ex-\nplain why he did not call them at Lee’s trial. Counsel told\nthe state judge at a pretrial conference that “I just have not\nhad time to meet with all these people”, but we don’t know\nwhat, if anything, he did to investigate their potential testi-\nmony between then and trial. Perhaps he tried to interview\nthe Massenburgs but could not ﬁnd them. We just don’t\nknow.\n The state judiciary’s conclusion that the Massenburgs’\ntestimony would not have helped Lee depends on an unstat-\ned belief that, if called at trial, they would have parroted\ntheir aﬃdavits and refused to say another word. That’s un-\nlikely. They might have provided exculpatory testimony,\nand then, if counsel neglected to contact them (another issue\non which the record is short of evidence), a ﬁnding of in-\neﬀective assistance could follow. See, e.g., Washington v.\nSmith, 219 F.3d 620, 631, 635 (7th Cir. 2000); Hall v. Washing-\nton, 106 F.3d 742, 749–50 (7th Cir. 1997).\n After oral argument we invited counsel for both sides to\nﬁle supplemental briefs addressing whether Lee sought an\nevidentiary hearing in state court, what evidence he pro-\nposed to present, and (if Lee asked) why the state judiciary\ndeclined to hold a hearing. Counsel representing Illinois did\nnot respond to this invitation, but Lee responded with en-\nthusiasm and, more important, details. The state-court rec-\n\fNo. 18-1005 5\n\nord contains more than a dozen express requests for eviden-\ntiary hearings—and, as far as we could see, no explanation\nby any state judge why these requests were denied. (Indeed,\nmost of the requests do not appear to have been ruled on.)\n Section 2254(e)(2) begins: “If the applicant has failed to\ndevelop the factual basis of a claim in State court proceed-\nings, the court shall not hold an evidentiary hearing on the\nclaim unless the applicant shows that … .” The “unless”\nclause does not apply, so if Lee “has failed to develop the\nfactual basis of [his] claim” he cannot receive an evidentiary\nhearing. Yet the aﬃdavits, plus the multiple requests for\nhearings, show that he did try to develop a record in state\ncourt.\n What one can say against this is that Lee did not articu-\nlate in state court, as clearly as his lawyers have articulated\nin this appeal, the subjects that a hearing would have cov-\nered: what the aﬃants would have said, had they been\ncalled at trial (and whether trial counsel ever met with them\nto learn what they would have said, if called). Yet by asking\nfor a hearing to explore an ineﬀective-assistance theory—a\ntheory supported by multiple aﬃdavits—Lee strongly im-\nplied what topics would be covered at a hearing. This makes\nit impossible to say that Lee has “failed to develop [in state\ncourt] the factual basis of” his claim. He did what he could,\nand the absence of evidence about what the trial would have\nbeen like, had these aﬃants testiﬁed, must be aqributed to\nthe state judiciary’s failure to aﬀord him a hearing. He is en-\ntitled to one in federal court, and the case is remanded so\nthat one can be held and we can learn what his aqorney did\n(or omiqed) and what the aﬃants would have said on the\nstand at trial. Only once that information has been gathered\n\f6 No. 18-1005\n\ncan the district court make a reliable decision about the in-\neﬀective-assistance claim.\n Our analysis has an additional implication: By deciding\nthe merits without receiving the evidence that Lee sought to\nhave considered, the state judiciary acted unreasonably. Illi-\nnois observes that Cullen v. Pinholster, 563 U.S. 170, 180–86\n(2011), holds that, when 28 U.S.C. §2254(d)(1) requires a fed-\neral court to reject a collateral challenge, the court may not\nhold an evidentiary hearing and consider evidence not pre-\nsented to the state judiciary. Illinois wants us to treat this as\nequivalent to a rule that state courts may insulate their deci-\nsions from federal review by refusing to entertain vital evi-\ndence. Yet a state court’s refusal to consider evidence can\nrender its decision unreasonable under §2254(d)(2) even\nwhen its legal analysis satisﬁes §2254(d)(1).\n Section 2254(d)(2) provides that “a decision that was\nbased on an unreasonable determination of the facts in light\nof the evidence presented in the State court proceeding”\nlacks the shelter of §2254(d) as a whole. If the aﬃdavits were\nall Lee had oﬀered to the state judiciary, then its decision\nmay have been a reasonable application of the law to a rea-\nsonable determination of the facts. But Lee wanted to intro-\nduce more, and the state barred the door. Pinholster concerns\nthe application of §2254(d)(1) to a state court’s legal reason-\ning; it does not prevent a federal court from ﬁnding factual\naspects of a state court’s decision unreasonable under\n§2254(d)(2). See 563 U.S. at 184–85 & n.7. By assuming that\nthe language of the ﬁve aﬃdavits would have been the total-\nity of the witnesses’ testimony had they been called at trial,\nthe state made an unreasonable factual determination under\n\fNo. 18-1005 7\n\n§2254(d)(2), which permits a federal evidentiary hearing un-\nder §2254(e)(2).\n VACATED AND REMANDED\n[END_CASE]", "role": "user" } ]
4,585,036		Brenda Scheidler v. State of Indiana	2019-01-25	17-2543	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before BAUER, MANION, and BRENNAN, Circuit Judges.", "parties": "", "opinions": [{"author": "Daniel Anthony Manion", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-2543\nBRENDA LEAR SCHEIDLER,\n Plaintiff-Appellant,\n v.\n\nSTATE OF INDIANA, et al.,\n Defendants-Appellees.\n ____________________\n\n Appeal from the United States District Court for the\n Southern District of Indiana, Indianapolis Division.\n No. 1:14-cv-937-WTL-DML — William T. Lawrence, Judge.\n ____________________\n\n ARGUED OCTOBER 24, 2018 — DECIDED JANUARY 25, 2019\n ____________________\n\n Before BAUER, MANION, and BRENNAN, Circuit Judges.\n MANION, Circuit Judge. Brenda Lear Scheidler worked for\nthe Indiana Department of Insurance (“IDOI”). She sought\naccommodations for disabilities related to her mental health.\nShe asked, among other things, that her coworkers not startle\nher. She received these accommodations for several years. But\non May 28, 2013, a frustrated supervisor reached toward\nScheidler and said, “I could just strangle you.” An\ninvestigation into this workplace incident discovered that\n\f2 No. 17-2543\n\nseveral months earlier Scheidler commented in an elevator\nabout a coworker’s apparent promotion prospects: “It’s who\nyou know and who you blow.”\n IDOI terminated Scheidler. She sued it for disability\ndiscrimination, retaliation, and other claims. She lost some\nclaims at summary judgment and she lost the rest at trial. She\nappeals summary judgment and an evidentiary decision.\nFinding no reversible error, we aﬃrm.\n I. Facts\n Scheidler1 began working for Indiana in a prison in 1999.\nShe learned an inmate wrote in his diary he wanted to torture\nher sexually. Scheidler reacted emotionally and left her\nemployment and sought medical treatment for the trauma. In\n2006, she began working at IDOI as a clerical assistant. She\nreceived good reviews, promotions, and no discipline until\nthe termination at issue here.\n In 2009, IDOI hired a recently released oﬀender. This\napparently scared Scheidler, and as a result she was\ndiagnosed with depression, bipolar disorder, and post-\ntraumatic stress disorder. She took FMLA leave. When she\nreturned, she discussed her condition with her supervisor,\nCindy Donovan, and asked her to comment on any changes\nin Scheidler’s behavior. Scheidler also told other employees,\nincluding Annette Gunter and Ronda Ankney, about the\ndiagnosis. Scheidler asked them not to startle her, be loud, or\napproach suddenly. She says she received these\n\n\n1 At all relevant times while working Lear was her surname. She later\nmarried and added her spouse’s name. On appeal she refers to herself as\n“Scheidler,” so we do, too.\n\fNo. 17-2543 3\n\naccommodations and for several years did not have any\nfurther problems at work until May 28, 2013.\n Gunter and Ankney are sisters-in-law. In 2010, Scheidler\nbegan carpooling with them. By 2013, Gunter supervised\nScheidler for some purposes.\n In 2013, Scheidler applied for a particular position within\nIDOI. Mary Ann Williams, another IDOI employee, also\napplied. As Scheidler, Gunter, and Ankney left work one day\nin March or April 2013, they noticed Williams was not at her\nstation. According to Ankney, Scheidler said, “Oh, it looks\nlike Mary Ann is still upstairs in her interview for her\ngovernment job.”\n “Brenda, don’t we all have government jobs? We’re all\nState employees,” Ankney responded.\n “Well, I mean for her federal job upstairs … I’m sure she’ll\nget it because … it’s who you know and who you blow,”\nScheidler said in the elevator.2 Ankney and Gunter told\nScheidler they disapproved, but did not report this comment\nuntil several months later.\n On May 28, 2013, Scheidler went to Gunter’s oﬃce after\ngetting an email from Donovan about redistribution of duties.\nScheidler sought clarification. Gunter said she did not know\nany more than Scheidler did. After Scheidler left, Gunter went\n\n\n\n\n2 The briefs and record report different versions of this comment. But both\n\nScheidler and Ankney testified Scheidler said, “It’s who you know and\nwho you blow.”\n\f4 No. 17-2543\n\nto Ankney’s cubicle and said, “I don’t know what I’m going\nto do if I don’t string her up by the end of the week.”3\n Overhearing the comment as she walked by, Scheidler\nasked, “Are you talking about me?” Gunter turned, stretched\nher arms out, leaned into Scheidler, made a choking motion,\nand said, “I could just strangle you.” This startled Scheidler.\nA heated exchange ensued. Scheidler mentioned Gunter’s\nmedication. Gunter indicated Scheidler should quit. Gunter\nsaid she wanted to end the carpool. We refer to this encounter\nas the “cubicle episode.” Scheidler told Donovan about it, but\ndid not want a formal investigation. But Donovan notified HR\nDirector Katie Dailey and the State Personnel Department\n(“SPD”). Jeﬀrey Hendrickson of SPD investigated. He\ninterviewed Scheidler and others, including Gunter, and\nlearned of the “blow” comment. He then met with IDOI\nCommissioner Stephen W. Robertson and conveyed the facts.\nRobertson made the disciplinary decisions. He decided to\nissue a written reprimand to Gunter for her inappropriate\nconduct during the cubicle episode. He decided to terminate\nScheidler. IDOI terminated her on July 8, 2013. The reason for\nthis termination is, of course, the heart of this case. Scheidler\nclaims IDOI terminated her for unlawful reasons. But IDOI\nargues it terminated her because of her two instances of\ninappropriate conduct: her “blow” comment in the elevator\nand her participation in the cubicle episode.\n\n\n\n\n3 The briefs and record also report different versions of this statement. The\n\ndifferences are immaterial here. We present the version quoted by Gunter\nduring her trial testimony.\n\fNo. 17-2543 5\n\n II. Procedural Posture\n Scheidler filed twice with the E.E.O.C. She received notices\nof right to sue on both charges. She also pursued\nadministrative relief under Indiana Code 4-15-2.2-24, 42. An\nALJ found in her favor on her disability-based retaliation\nclaim but found in IDOI’s favor on her other claims. The State\nEmployees’ Appeals Commission aﬃrmed, and remanded to\nset damages. But the parties agreed to stay those state\nproceedings pending resolution of the federal case.\n Scheidler filed a complaint with the district court and\namended it twice. The second amended complaint brought\nthree counts against Indiana and IDOI Commissioner\nStephen W. Robertson, in his oﬃcial and personal capacities.\n Count 1 (“Disability Discrimination”) alleged Defendants\ndiscriminated against her because of her disability “by failure\nto accommodate, discrimination and retaliation,” in violation\nof 42 U.S.C. §§ 1981a, 12112, and 12203; 29 U.S.C. § 794; related\nsections; and Indiana disability laws.\n Count 2 (“Sex Discrimination”) alleged Defendants\ndiscriminated against her because she is female, in violation\nof 42 U.S.C. §§ 1981a, 1983, 2000e-2, 2000e-5, and related\nsections.\n Count 3 (“Retaliation”) alleged Defendants discriminated\nagainst her “because she opposed and complained about\ndiscrimination and exercised her rights to free speech,” in\nviolation of 42 U.S.C. §§ 1981a, 1983, 2000e-3, 2000e-5, 12112,\nand 12203; 29 U.S.C. § 794; related sections; Indiana\nwhistleblower laws; and the First Amendments of the United\nStates and Indiana.\n\f6 No. 17-2543\n\n We share the court’s observation that the second amended\ncomplaint does not clearly state what claims Scheidler\nasserts.4 She abandoned some claims. Defendants moved for\nsummary judgment on all remaining claims. She clarified in\nher brief responding to this motion that she pursued claims of\ndisability discrimination, failure to accommodate, and\nretaliation for making complaints of sex and disability\ndiscrimination. The court construed her disability claims as\narising under the ADA and the Rehabilitation Act and her\nretaliation claims as arising under those statutes and Title VII\nof the Civil Rights Act.\n On grounds not raised by Defendants, the court granted\nsummary judgment to Robertson on all claims.\n The court denied summary judgment on the ADA and\nRehabilitation Act claims against Indiana for disparate\ntreatment due to disability. The court found enough evidence\non the prima facie case and pretext to require trial.\n The court granted summary judgment to Indiana on the\nclaim for sex-based retaliation under Title VII. Scheidler\nargued her “blow” comment was a complaint of sex\ndiscrimination and claimed IDOI terminated her in response\nto this complaint. But the court determined she could not\nshow she engaged in statutorily protected activity requisite\nfor a retaliation claim because subjectively she did not have a\n\n\n4 For example, disability and sex discrimination cannot violate § 1983. See\nGillo v. Gary Cmty. Sch. Corp., No. 2:14-CV-99-JVB-JEM, 2016 WL 4592200,\nat *4 (N.D. Ind. Sept. 2, 2016) (collecting cases and noting § 1983 does not\ncreate substantive rights susceptible to violations). And we do not think\n“First Amendment” of Indiana’s Constitution means what she thinks. But\nwe do not hold these discrepancies against her.\n\fNo. 17-2543 7\n\nsincere, good-faith belief she opposed an unlawful practice\nand because objectively her complaint did not involve\ndiscrimination prohibited by Title VII. Without a statutorily\nprotected activity, this retaliation claim fell.\n The court also granted summary judgment to Indiana on\nthe disability-based retaliation claim. Scheidler claimed IDOI\nterminated her in retaliation for complaining of disability\ndiscrimination. But the court noted she did not clearly\narticulate what her complaint of disability discrimination\nwas. The closest she came to articulating a complaint of\ndisability discrimination, according to the court, was: “When\n[Scheidler] complained to human resources about Annette\nGunter threatening her and making a strangling motion at\n[her], she told human resources that she suﬀered from bipolar\ndisorder and PTSD and that is why the situation startled and\nupset her more than it might other people.” But the court\nconcluded she only raised her conditions to explain her\nreaction to Gunter, not to complain anyone discriminated\nbecause of disability. So the court determined she failed even\nto create an inference of statutorily protected activity.\n Finally, the court granted summary judgment for Indiana\non the failure-to-accommodate claim, concluding it was\nsimply her disability-discrimination-disparate-treatment\nclaim worded diﬀerently because the accommodation she\nsought that IDOI failed to give was treatment equal to Gunter.\n So the only claims at trial were for disparate treatment due\nto disability discrimination against Indiana under the ADA\nand the Rehabilitation Act. The jury gave a defense verdict.\n Scheidler appeals the order granting partial summary\njudgment and an evidentiary ruling during trial. We review\n\f8 No. 17-2543\n\nsummary judgment de novo, and will aﬃrm when—viewing\nthe evidence in the light most favorable to the nonmovant and\ndrawing all reasonable inferences in its favor—there is no\ngenuine issue of material fact and the movant is entitled to\njudgment as a matter of law. Barbera v. Pearson Educ., 906 F.3d\n621, 628 (7th Cir. 2018). We may aﬃrm summary judgment\nfor reasons not articulated by the district court so long as the\nrecord supports them, the district court adequately\nconsidered them, and the nonmovant had an opportunity to\ncontest them. Gerhartz v. Richert, 779 F.3d 682, 685 (7th Cir.\n2015).\n A party generally forfeits issues and arguments raised for\nthe first time on appeal. CNH Indus. Am. v. Jones Lang LaSalle\nAm., 882 F.3d 692, 705 (7th Cir. 2018). A party also generally\nforfeits issues and arguments it fails to raise in its initial\nappellate brief. Holman v. Indiana, 211 F.3d 399, 406 (7th Cir.\n2000). Insuﬃciently developed issues and arguments are also\nforfeited. United States v. Austin, 806 F.3d 425, 433 n.2 (7th Cir.\n2015).\n III. Analysis\nA. Redundant claims?\n Scheidler first argues the court erred by concluding her\nfailure-to-accommodate claim was the same as her disability-\ndiscrimination-disparate-treatment claim. The law recognizes\nthe existence of separate claims. The ADA forbids certain\ntypes of disability discrimination: “No covered entity shall\ndiscriminate against a qualified individual on the basis of\ndisability in regard to job application procedures, the hiring,\nadvancement, or discharge of employees, employee\ncompensation, job training, and other terms, conditions, and\n\fNo. 17-2543 9\n\nprivileges of employment.” 42 U.S.C. § 12112(a). The ADA\nthen defines “discriminate against a qualified individual on\nthe basis of disability” to include disparate treatment and\nfailure to accommodate: “not making reasonable\naccommodations to the known physical or mental limitations\nof an otherwise qualified individual with a disability who is\nan applicant or employee … .” 42 U.S.C. § 12112(b)(5)(A).\n A claim for disparate treatment based on disability under\nthe ADA (and the Rehabilitation Act, with immaterial\nnuances) requires proof (1) plaintiﬀ was disabled; (2) plaintiﬀ\nwas qualified to perform essential functions with or without\nreasonable accommodation; and (3) disability was the “but\nfor” cause of adverse employment action. Monroe v. Ind. Dep’t\nof Transp., 871 F.3d 495, 503–04 (7th Cir. 2017); Felix v. Wis.\nDep’t of Transp., 828 F.3d 560, 568 (7th Cir. 2016).\n A claim for failure to accommodate under the ADA (and the\nRehabilitation Act, generally) requires proof (1) plaintiﬀ was\na qualified individual with a disability; (2) defendant was\naware of his disability; and (3) defendant failed to\naccommodate his disability reasonably. E.E.O.C. v. AutoZone,\n809 F.3d 916, 919 (7th Cir. 2016); Brumfield v. City of Chicago,\n735 F.3d 619, 630 (7th Cir. 2013). So two separate claims are\npossible under each statute.\n But neither Scheidler’s second amended complaint nor her\nstatement of claims is clear regarding failure to accommodate.\nThe closest Scheidler comes to advancing a failure-to-\naccommodate claim is under the theory that she asked her\ncoworkers not to startle her, but Gunter threatened to strangle\nher. Yet Scheidler’s own statement of claims tends to\nundermine even this theory, because there she admitted: “The\n\f10 No. 17-2543\n\nState accommodated [my] disability before [I] complained\nabout discrimination in May 2013.”\n Scheidler’s appellate brief is clearer. In the section arguing\nthe court erred by conflating the failure-to-accommodate\nclaim with the disparate-treatment claim, she asserts “the\ndistrict court ignored the fact that Gunter failed to\naccommodate Scheidler on May 28, 2013 by raising her voice,\nmaking a strangling motion at Scheidler, and threatening\nher.” (Appellant’s Br., DE 20 at 26.) The brief does not mention\nany failure to accommodate unrelated to the cubicle episode.\n In any event, even viewing the facts in the light most\nfavorable to her and drawing all reasonable inferences for her,\nwe conclude summary judgment against her on the failure-to-\naccommodate claim was appropriate. The cubicle episode\nwas an isolated, “one-oﬀ” event. She does not allege a failure\nto accommodate apart from the cubicle episode. Indeed, she\nacknowledged there were no problems involving a failure to\naccommodate other than the cubicle episode.5\n\n\n\n5 In 2009, “Scheidler asked that her coworkers not startle her, not make\nany loud noises, and not approach her suddenly because the PTSD made\nher very jumpy. Scheidler continued to request those accommodations,\nand Donovan only told Scheidler once that ‘something is a little different’\nabout her behavior, which Scheidler corrected. There were no problems\nafter that until [the cubicle episode in] May 2013 when Scheidler\ncomplained to Gunter and Donovan that Gunter told Scheidler that\nGunter would like to strangle Scheidler, Gunter moved her hands toward\nScheidler’s throat, and Gunter told Scheidler that Scheidler should leave\nand get another job.” (Appellant’s Br., DE 20 at 6–7, internal citations\nomitted.) “Scheidler had previously requested accommodations of not\nbeing startled, not having loud noises made around her, and not being\napproached suddenly, due to her disability, and Donovan, as well as\n\fNo. 17-2543 11\n\n “Reasonable accommodation under the ADA is a process,\nnot a one-oﬀ event.” Cloe v. City of Indianapolis, 712 F.3d 1171,\n1178 (7th Cir. 2013), overruled on other grounds by Ortiz v.\nWerner Enters., 834 F.3d 760, 764 (7th Cir. 2016). Here,\nScheidler has adduced no evidence that the interactive\nprocess broke down. Even accepting as we do for present\npurposes that she is disabled, that she asked her employer for\nreasonable accommodations, and that Gunter breached the\narrangement on one occasion by threatening to strangle\nScheidler, we cannot escape the facts that Scheidler otherwise\nreceived all the treatment she requested regarding her\ndisability, that she reported this singular cubicle episode to\nDonovan, and that no further problems occurred. IDOI\naddressed Gunter’s misconduct by reprimanding her. That\nthe reprimand did not benefit Scheidler because IDOI\nterminated her the same day is of no moment because IDOI\nwas allowed to terminate her for her misconduct during the\nelevator episode plus her misconduct during the cubicle\nepisode, even if her disability precipitated that misconduct.6\n We do not hold a single event could never support a claim\nfor failure to accommodate. We merely conclude on this\n\nGunter, Ankney, and … other coworkers, had granted those\naccommodations before this incident.” (Id. at 10.)\n6Felix, 828 F.3d at 568–69; Pernice v. City of Chicago, 237 F.3d 783, 785 (7th\nCir. 2001) (“[A]n employee can be terminated for violations … even if the\n… violations occurred under the influence of a disability.”); Palmer v.\nCircuit Court of Cook Cty., Ill., 117 F.3d 351, 352 (7th Cir. 1997) (“There is no\nevidence [plaintiff] was fired because of her mental illness. She was fired\nbecause she threatened to kill another employee. The cause of the threat\nwas … her mental illness … . But if an employer fires an employee because\nof … unacceptable behavior, the fact that that behavior was precipitated\nby a mental illness does not present an issue under the [ADA].”)\n\f12 No. 17-2543\n\nrecord the single cubicle episode does not support this claim.\nAny error in conflating the claim for failure to accommodate\nwith the claim for disparate treatment was therefore harmless.\nB. Retaliation\n Scheidler next argues the court erred in granting summary\njudgment on her retaliation claims.\n1. Title VII retaliation\n Title VII bans employers from retaliating against\nemployees who exercise rights under it. Title VII protects\n“any … employees” who “opposed any practice” banned by\nthe statute, or who “made a charge, testified, assisted, or\nparticipated in any manner in an investigation, proceeding, or\nhearing” under the statute. 42 U.S.C. § 2000e-3(a).\n A retaliation claim requires statutorily protected activity,\nwhich generally involves subjective and objective factors:\n“The plaintiﬀ must not only have a subjective (sincere, good\nfaith) belief that he opposed an unlawful practice; his belief\nmust also be objectively reasonable, which means that the\ncomplaint must involve discrimination that is prohibited by\nTitle VII.” Hamner v. St. Vincent Hosp. and Health Care Ctr., 224\nF.3d 701, 707 (7th Cir. 2000), overruled on other grounds by\nHively v. Ivy Tech Cmty. Coll. Ind., 853 F.3d 339 (7th Cir. 2017).\n Scheidler claims her elevator comment—“It’s who you\nknow and who you blow”—was statutorily protected activity.\nBut the court held she failed both the subjective and objective\nfactors because she did not have a sincere, good-faith belief\nshe opposed an unlawful practice and because her comment\ndid not involve discrimination prohibited by Title VII. The\ncourt noted she testified she did not think her comment was\nsexual. She told the ALJ she did not think “blow” had a sexual\n\fNo. 17-2543 13\n\nconnotation and she meant merely “[b]lowing hot air.”7 The\ncourt noted the possibility a comment could be interpreted to\ninvolve a sex act does not make it a complaint of sex\ndiscrimination. And the court noted she had not provided any\nevidence she rooted her comment in her gender.8\n Scheidler argues the court erred because the IDOI\nconsidered the comment to be a complaint of quid pro quo\nsexual harassment, and an employer’s mistaken belief that an\nemployee engaged in protected activity sustains retaliation.\nFor support, she cites Heﬀernan v. City of Paterson, N.J., 136 S.\nCt. 1412, 1418–19 (2016). But it is distinguishable. It involved\na First Amendment claim, not a Title VII retaliation claim.\nCertainly we are open to persuasion by analogy, but she does\nnot develop suﬃcient arguments for this, and we decline to\nmake them for her. Also the cases are factually\ndistinguishable. In Heﬀernan, defendant mistakenly thought\nplaintiﬀ engaged in protected political speech, and punished\nhim. But in our case, neither party thought the comment was\n\n\n7“Blow” has various potential meanings. Another Lear famously hurls it\nwithout obvious sexual innuendo: “Blow winds … ! Rage, blow!” William\nShakespeare, King Lear, Act III, sc. ii.\n8 Even later, at trial, Scheidler did not characterize “blow” as sexual: “I\nmeant it’s who you know; and when I say, ‘It’s who you blow,’ you know\nyou got somebody that you talk most up to, that knows you in your\nprivate life. Her husband … had been president of the Indiana Insurance\nAssociation. So she was and her husband was known … by the\nCommissioner.” Scheidler did not testify she meant to accuse anyone of\nquid pro quo sexual harassment. She did not testify she meant anyone\nexpected her, as a woman, to give sex to get ahead in her job. She did not\nexplain her comment in relation to her gender. Instead, she testified she\nonly meant to complain about favoritism because Williams and her\nhusband knew the Commissioner. That complaint isn’t protected here.\n\f14 No. 17-2543\n\nan actual complaint of sexual harassment or discrimination.\nThat characterization apparently only arose late in litigation.\nScheidler’s reliance on Thompson v. North American Stainless,\n562 U.S. 170, 173–79 (2011), is also misplaced. That case\nmerely stands for the proposition that a person aggrieved by\nretaliation has standing to sue for it even if that person did\nnot engage in the protected activity but someone else did.\nNeither of these cases requires the conclusion that the\nsubjective component of the Title VII protected-activity\ninquiry is obviated if the employer mistakenly thinks the\nemployee engaged in statutorily protected activity.\n Besides, she oﬀers no evidence that her complaint satisfies\nthe objective factor. She oﬀers no evidence—and does not\neven claim—that the Commissioner (or anyone else with\nIDOI) asked for or received a sex act from Mary Ann Williams\n(or anyone else) in exchange for a promotion or any other\nemployment benefit. She oﬀers no evidence that her elevator\ncomment concerned actual discrimination prohibited by Title\nVII. So the court did not err in granting summary judgment\non the Title VII retaliation claim.\n2. Disability-based retaliation\n Surviving summary judgment on disability-based\nretaliation requires showing (1) statutorily protected activity;\n(2) adverse employment action; and (3) causal connection.\nGuzman v. Brown Cty., 884 F.3d 633, 642 (7th Cir. 2018). The\ncourt granted summary judgment against this claim because\nScheidler failed to show statutorily protected activity. She\nargues the court ignored several protected activities.\n First, she argues the court ignored her complaint about\ndisability discrimination to Gunter during the cubicle episode.\n\fNo. 17-2543 15\n\nThere, Scheidler explained that when Gunter (who did not\nhave a disability) was upset and took Xanax, she was allowed\nto move out of her position. But when Scheidler (who has a\ndisability) was upset, she was not given the same opportunity.\nScheidler cites her testimony before the ALJ. But there are\nnumerous problems with this argument. Foremost among\nthem is forfeiture. In the cited testimony, she never says she\ncomplained to Gunter about disability discrimination.\nScheidler does not say, for example, that she complained that\nGunter received better treatment than Scheidler because\nScheidler is disabled and Gunter is not. Indiana argues for\nforfeiture of this argument for failure to raise it below. In\nreply, Scheidler claims she did raise this argument below, but\nshe only cites a broader portion of her testimony before the\nALJ and two pages from her response to the motion for\nsummary judgment below. Again, nowhere in the cited\nmaterials does she say she complained to Gunter about\ndisability discrimination. So Scheidler forfeited this\nargument. And the record does not support it anyway.\n Second, she argues the court ignored the fact that when\nshe complained to HR about Gunter’s conduct during the\ncubicle episode, Scheidler told HR she suﬀered from bipolar\ndisorder and PTSD and that is why the situation startled and\nupset her particularly. Scheidler argues her statement to HR\nwas itself a complaint that Gunter failed to accommodate\nScheidler as requested. Here, she only cites her testimony\nbefore the ALJ. But the cited testimony does not support her\nargument. Moreover, in neither her initial appellate brief nor\nher reply does she point to a time when she raised this specific\nargument to the district court. The mere fact that Scheidler\nargued below that Gunter and others failed to accommodate\nher disability misses the point. Such an argument is not\n\f16 No. 17-2543\n\ntantamount to an argument that Scheidler complained to HR\nthat Gunter failed to accommodate and then IDOI retaliated\nagainst Scheidler for making that complaint. So she forfeited\nthis argument. Also, the record does not support it. Therefore\nwe need not address the other problems with it.\n Third, she argues the court ignored the fact that her\nstatement to HR that her disabilities explained her reaction to\nGunter was itself a request for an accommodation regarding\nScheidler’s reaction. Here, she only cites the order granting\nsummary judgment. Indiana argues for forfeiture for failure\nto develop. We agree. We also note her response to the motion\nfor summary judgment did not adequately develop this\nargument. And the record does not support it anyway.\n Her remaining arguments regarding disability-based\nretaliation are unavailing. The court committed no reversible\nerror in granting summary judgment on this claim.\nC. Commissioner\n Scheidler brought claims against Indiana and IDOI\nCommissioner Stephen W. Robertson, in both his oﬃcial and\npersonal capacities. The court granted full summary\njudgment to Robertson on grounds not raised by Defendants,\nwithout notice or a reasonable response time, in violation of\nRule 56(f)(2). Appellees admit this was an error. But the error\nwas harmless. Independent of the Robertson irregularity,\nScheidler lost all her claims at summary judgment or trial\nanyway. She oﬀers no satisfactory explanation of how the\npremature summary judgment for Robertson ultimately\nprejudiced her. Finding no reversible error regarding\nsummary judgment, we turn to the trial.\n\fNo. 17-2543 17\n\nD. Exclusion of Thomas evidence\n Donna Thomas was an IDOI employee terminated in\nDecember 2011 after saying a racial slur. HR Director Dailey\ndiscussed Thomas at Scheidler’s ALJ hearing. In moving for\nsummary judgment, Defendants referenced this testimony.\nDefendants asserted they terminated Thomas for her single\nslur. Scheidler challenged this at summary judgment. She\nsaid Thomas committed multiple infractions before the slur,\nDefendants gave her progressive discipline rather than\nimmediate termination, and they did not terminate her for a\nsingle slur.\n At trial, after the direct examination of Scheidler, her\nattorney asked to be allowed to introduce four documents\nfrom Thomas’s personnel file to show IDOI treated a\ncomparable person better than Scheidler. The court denied\nthe admissibility of these documents, but expressly allowed\nthe possibility Scheidler could introduce them through other\nwitnesses. But she failed to pursue this opening. She called no\nfurther witnesses and she did not seek admission of the\ndocuments through any Indiana witness.\n Therefore Scheidler forfeited this evidentiary issue by\nforgoing the court’s invitation to seek admission of the\nexhibits later. See Ennin v. CNH Indus. Am., 878 F.3d 590, 596\n(7th Cir. 2017) (concluding it is “the very essence of waiver”\nto choose not to present evidence when given the\nopportunity). Anyway, the standard of review is abuse of\ndiscretion, Haynes v. Ind. Univ., 902 F.3d 724, 730 (7th Cir.\n2018), and the court did not abuse its discretion.\n Besides, Scheidler has not oﬀered suﬃcient reasons to\nconvince us admission would have changed the outcome.\n\f18 No. 17-2543\n\n IV. Conclusion\n We considered all Scheidler’s arguments and found none\navailing. Finding no reversible error, we AFFIRM.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4362289/", "author_raw": "Daniel Anthony Manion"}]}	BAUER	MANION	BRENNAN	1		{"BAUER": ", Circuit", "MANION": ", Circuit", "BRENNAN": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4585036/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Brenda Scheidler v. State of Indiana\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-25\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-2543\nBRENDA LEAR SCHEIDLER,\n Plaintiff-Appellant,\n v.\n\nSTATE OF INDIANA, et al.,\n Defendants-Appellees.\n ____________________\n\n Appeal from the United States District Court for the\n Southern District of Indiana, Indianapolis Division.\n No. 1:14-cv-937-WTL-DML — William T. Lawrence, Judge.\n ____________________\n\n ARGUED OCTOBER 24, 2018 — DECIDED JANUARY 25, 2019\n ____________________\n\n Before BAUER, MANION, and BRENNAN, Circuit Judges.\n MANION, Circuit Judge. Brenda Lear Scheidler worked for\nthe Indiana Department of Insurance (“IDOI”). She sought\naccommodations for disabilities related to her mental health.\nShe asked, among other things, that her coworkers not startle\nher. She received these accommodations for several years. But\non May 28, 2013, a frustrated supervisor reached toward\nScheidler and said, “I could just strangle you.” An\ninvestigation into this workplace incident discovered that\n\f2 No. 17-2543\n\nseveral months earlier Scheidler commented in an elevator\nabout a coworker’s apparent promotion prospects: “It’s who\nyou know and who you blow.”\n IDOI terminated Scheidler. She sued it for disability\ndiscrimination, retaliation, and other claims. She lost some\nclaims at summary judgment and she lost the rest at trial. She\nappeals summary judgment and an evidentiary decision.\nFinding no reversible error, we aﬃrm.\n I. Facts\n Scheidler1 began working for Indiana in a prison in 1999.\nShe learned an inmate wrote in his diary he wanted to torture\nher sexually. Scheidler reacted emotionally and left her\nemployment and sought medical treatment for the trauma. In\n2006, she began working at IDOI as a clerical assistant. She\nreceived good reviews, promotions, and no discipline until\nthe termination at issue here.\n In 2009, IDOI hired a recently released oﬀender. This\napparently scared Scheidler, and as a result she was\ndiagnosed with depression, bipolar disorder, and post-\ntraumatic stress disorder. She took FMLA leave. When she\nreturned, she discussed her condition with her supervisor,\nCindy Donovan, and asked her to comment on any changes\nin Scheidler’s behavior. Scheidler also told other employees,\nincluding Annette Gunter and Ronda Ankney, about the\ndiagnosis. Scheidler asked them not to startle her, be loud, or\napproach suddenly. She says she received these\n\n\n1 At all relevant times while working Lear was her surname. She later\nmarried and added her spouse’s name. On appeal she refers to herself as\n“Scheidler,” so we do, too.\n\fNo. 17-2543 3\n\naccommodations and for several years did not have any\nfurther problems at work until May 28, 2013.\n Gunter and Ankney are sisters-in-law. In 2010, Scheidler\nbegan carpooling with them. By 2013, Gunter supervised\nScheidler for some purposes.\n In 2013, Scheidler applied for a particular position within\nIDOI. Mary Ann Williams, another IDOI employee, also\napplied. As Scheidler, Gunter, and Ankney left work one day\nin March or April 2013, they noticed Williams was not at her\nstation. According to Ankney, Scheidler said, “Oh, it looks\nlike Mary Ann is still upstairs in her interview for her\ngovernment job.”\n “Brenda, don’t we all have government jobs? We’re all\nState employees,” Ankney responded.\n “Well, I mean for her federal job upstairs … I’m sure she’ll\nget it because … it’s who you know and who you blow,”\nScheidler said in the elevator.2 Ankney and Gunter told\nScheidler they disapproved, but did not report this comment\nuntil several months later.\n On May 28, 2013, Scheidler went to Gunter’s oﬃce after\ngetting an email from Donovan about redistribution of duties.\nScheidler sought clarification. Gunter said she did not know\nany more than Scheidler did. After Scheidler left, Gunter went\n\n\n\n\n2 The briefs and record report different versions of this comment. But both\n\nScheidler and Ankney testified Scheidler said, “It’s who you know and\nwho you blow.”\n\f4 No. 17-2543\n\nto Ankney’s cubicle and said, “I don’t know what I’m going\nto do if I don’t string her up by the end of the week.”3\n Overhearing the comment as she walked by, Scheidler\nasked, “Are you talking about me?” Gunter turned, stretched\nher arms out, leaned into Scheidler, made a choking motion,\nand said, “I could just strangle you.” This startled Scheidler.\nA heated exchange ensued. Scheidler mentioned Gunter’s\nmedication. Gunter indicated Scheidler should quit. Gunter\nsaid she wanted to end the carpool. We refer to this encounter\nas the “cubicle episode.” Scheidler told Donovan about it, but\ndid not want a formal investigation. But Donovan notified HR\nDirector Katie Dailey and the State Personnel Department\n(“SPD”). Jeﬀrey Hendrickson of SPD investigated. He\ninterviewed Scheidler and others, including Gunter, and\nlearned of the “blow” comment. He then met with IDOI\nCommissioner Stephen W. Robertson and conveyed the facts.\nRobertson made the disciplinary decisions. He decided to\nissue a written reprimand to Gunter for her inappropriate\nconduct during the cubicle episode. He decided to terminate\nScheidler. IDOI terminated her on July 8, 2013. The reason for\nthis termination is, of course, the heart of this case. Scheidler\nclaims IDOI terminated her for unlawful reasons. But IDOI\nargues it terminated her because of her two instances of\ninappropriate conduct: her “blow” comment in the elevator\nand her participation in the cubicle episode.\n\n\n\n\n3 The briefs and record also report different versions of this statement. The\n\ndifferences are immaterial here. We present the version quoted by Gunter\nduring her trial testimony.\n\fNo. 17-2543 5\n\n II. Procedural Posture\n Scheidler filed twice with the E.E.O.C. She received notices\nof right to sue on both charges. She also pursued\nadministrative relief under Indiana Code 4-15-2.2-24, 42. An\nALJ found in her favor on her disability-based retaliation\nclaim but found in IDOI’s favor on her other claims. The State\nEmployees’ Appeals Commission aﬃrmed, and remanded to\nset damages. But the parties agreed to stay those state\nproceedings pending resolution of the federal case.\n Scheidler filed a complaint with the district court and\namended it twice. The second amended complaint brought\nthree counts against Indiana and IDOI Commissioner\nStephen W. Robertson, in his oﬃcial and personal capacities.\n Count 1 (“Disability Discrimination”) alleged Defendants\ndiscriminated against her because of her disability “by failure\nto accommodate, discrimination and retaliation,” in violation\nof 42 U.S.C. §§ 1981a, 12112, and 12203; 29 U.S.C. § 794; related\nsections; and Indiana disability laws.\n Count 2 (“Sex Discrimination”) alleged Defendants\ndiscriminated against her because she is female, in violation\nof 42 U.S.C. §§ 1981a, 1983, 2000e-2, 2000e-5, and related\nsections.\n Count 3 (“Retaliation”) alleged Defendants discriminated\nagainst her “because she opposed and complained about\ndiscrimination and exercised her rights to free speech,” in\nviolation of 42 U.S.C. §§ 1981a, 1983, 2000e-3, 2000e-5, 12112,\nand 12203; 29 U.S.C. § 794; related sections; Indiana\nwhistleblower laws; and the First Amendments of the United\nStates and Indiana.\n\f6 No. 17-2543\n\n We share the court’s observation that the second amended\ncomplaint does not clearly state what claims Scheidler\nasserts.4 She abandoned some claims. Defendants moved for\nsummary judgment on all remaining claims. She clarified in\nher brief responding to this motion that she pursued claims of\ndisability discrimination, failure to accommodate, and\nretaliation for making complaints of sex and disability\ndiscrimination. The court construed her disability claims as\narising under the ADA and the Rehabilitation Act and her\nretaliation claims as arising under those statutes and Title VII\nof the Civil Rights Act.\n On grounds not raised by Defendants, the court granted\nsummary judgment to Robertson on all claims.\n The court denied summary judgment on the ADA and\nRehabilitation Act claims against Indiana for disparate\ntreatment due to disability. The court found enough evidence\non the prima facie case and pretext to require trial.\n The court granted summary judgment to Indiana on the\nclaim for sex-based retaliation under Title VII. Scheidler\nargued her “blow” comment was a complaint of sex\ndiscrimination and claimed IDOI terminated her in response\nto this complaint. But the court determined she could not\nshow she engaged in statutorily protected activity requisite\nfor a retaliation claim because subjectively she did not have a\n\n\n4 For example, disability and sex discrimination cannot violate § 1983. See\nGillo v. Gary Cmty. Sch. Corp., No. 2:14-CV-99-JVB-JEM, 2016 WL 4592200,\nat *4 (N.D. Ind. Sept. 2, 2016) (collecting cases and noting § 1983 does not\ncreate substantive rights susceptible to violations). And we do not think\n“First Amendment” of Indiana’s Constitution means what she thinks. But\nwe do not hold these discrepancies against her.\n\fNo. 17-2543 7\n\nsincere, good-faith belief she opposed an unlawful practice\nand because objectively her complaint did not involve\ndiscrimination prohibited by Title VII. Without a statutorily\nprotected activity, this retaliation claim fell.\n The court also granted summary judgment to Indiana on\nthe disability-based retaliation claim. Scheidler claimed IDOI\nterminated her in retaliation for complaining of disability\ndiscrimination. But the court noted she did not clearly\narticulate what her complaint of disability discrimination\nwas. The closest she came to articulating a complaint of\ndisability discrimination, according to the court, was: “When\n[Scheidler] complained to human resources about Annette\nGunter threatening her and making a strangling motion at\n[her], she told human resources that she suﬀered from bipolar\ndisorder and PTSD and that is why the situation startled and\nupset her more than it might other people.” But the court\nconcluded she only raised her conditions to explain her\nreaction to Gunter, not to complain anyone discriminated\nbecause of disability. So the court determined she failed even\nto create an inference of statutorily protected activity.\n Finally, the court granted summary judgment for Indiana\non the failure-to-accommodate claim, concluding it was\nsimply her disability-discrimination-disparate-treatment\nclaim worded diﬀerently because the accommodation she\nsought that IDOI failed to give was treatment equal to Gunter.\n So the only claims at trial were for disparate treatment due\nto disability discrimination against Indiana under the ADA\nand the Rehabilitation Act. The jury gave a defense verdict.\n Scheidler appeals the order granting partial summary\njudgment and an evidentiary ruling during trial. We review\n\f8 No. 17-2543\n\nsummary judgment de novo, and will aﬃrm when—viewing\nthe evidence in the light most favorable to the nonmovant and\ndrawing all reasonable inferences in its favor—there is no\ngenuine issue of material fact and the movant is entitled to\njudgment as a matter of law. Barbera v. Pearson Educ., 906 F.3d\n621, 628 (7th Cir. 2018). We may aﬃrm summary judgment\nfor reasons not articulated by the district court so long as the\nrecord supports them, the district court adequately\nconsidered them, and the nonmovant had an opportunity to\ncontest them. Gerhartz v. Richert, 779 F.3d 682, 685 (7th Cir.\n2015).\n A party generally forfeits issues and arguments raised for\nthe first time on appeal. CNH Indus. Am. v. Jones Lang LaSalle\nAm., 882 F.3d 692, 705 (7th Cir. 2018). A party also generally\nforfeits issues and arguments it fails to raise in its initial\nappellate brief. Holman v. Indiana, 211 F.3d 399, 406 (7th Cir.\n2000). Insuﬃciently developed issues and arguments are also\nforfeited. United States v. Austin, 806 F.3d 425, 433 n.2 (7th Cir.\n2015).\n III. Analysis\nA. Redundant claims?\n Scheidler first argues the court erred by concluding her\nfailure-to-accommodate claim was the same as her disability-\ndiscrimination-disparate-treatment claim. The law recognizes\nthe existence of separate claims. The ADA forbids certain\ntypes of disability discrimination: “No covered entity shall\ndiscriminate against a qualified individual on the basis of\ndisability in regard to job application procedures, the hiring,\nadvancement, or discharge of employees, employee\ncompensation, job training, and other terms, conditions, and\n\fNo. 17-2543 9\n\nprivileges of employment.” 42 U.S.C. § 12112(a). The ADA\nthen defines “discriminate against a qualified individual on\nthe basis of disability” to include disparate treatment and\nfailure to accommodate: “not making reasonable\naccommodations to the known physical or mental limitations\nof an otherwise qualified individual with a disability who is\nan applicant or employee … .” 42 U.S.C. § 12112(b)(5)(A).\n A claim for disparate treatment based on disability under\nthe ADA (and the Rehabilitation Act, with immaterial\nnuances) requires proof (1) plaintiﬀ was disabled; (2) plaintiﬀ\nwas qualified to perform essential functions with or without\nreasonable accommodation; and (3) disability was the “but\nfor” cause of adverse employment action. Monroe v. Ind. Dep’t\nof Transp., 871 F.3d 495, 503–04 (7th Cir. 2017); Felix v. Wis.\nDep’t of Transp., 828 F.3d 560, 568 (7th Cir. 2016).\n A claim for failure to accommodate under the ADA (and the\nRehabilitation Act, generally) requires proof (1) plaintiﬀ was\na qualified individual with a disability; (2) defendant was\naware of his disability; and (3) defendant failed to\naccommodate his disability reasonably. E.E.O.C. v. AutoZone,\n809 F.3d 916, 919 (7th Cir. 2016); Brumfield v. City of Chicago,\n735 F.3d 619, 630 (7th Cir. 2013). So two separate claims are\npossible under each statute.\n But neither Scheidler’s second amended complaint nor her\nstatement of claims is clear regarding failure to accommodate.\nThe closest Scheidler comes to advancing a failure-to-\naccommodate claim is under the theory that she asked her\ncoworkers not to startle her, but Gunter threatened to strangle\nher. Yet Scheidler’s own statement of claims tends to\nundermine even this theory, because there she admitted: “The\n\f10 No. 17-2543\n\nState accommodated [my] disability before [I] complained\nabout discrimination in May 2013.”\n Scheidler’s appellate brief is clearer. In the section arguing\nthe court erred by conflating the failure-to-accommodate\nclaim with the disparate-treatment claim, she asserts “the\ndistrict court ignored the fact that Gunter failed to\naccommodate Scheidler on May 28, 2013 by raising her voice,\nmaking a strangling motion at Scheidler, and threatening\nher.” (Appellant’s Br., DE 20 at 26.) The brief does not mention\nany failure to accommodate unrelated to the cubicle episode.\n In any event, even viewing the facts in the light most\nfavorable to her and drawing all reasonable inferences for her,\nwe conclude summary judgment against her on the failure-to-\naccommodate claim was appropriate. The cubicle episode\nwas an isolated, “one-oﬀ” event. She does not allege a failure\nto accommodate apart from the cubicle episode. Indeed, she\nacknowledged there were no problems involving a failure to\naccommodate other than the cubicle episode.5\n\n\n\n5 In 2009, “Scheidler asked that her coworkers not startle her, not make\nany loud noises, and not approach her suddenly because the PTSD made\nher very jumpy. Scheidler continued to request those accommodations,\nand Donovan only told Scheidler once that ‘something is a little different’\nabout her behavior, which Scheidler corrected. There were no problems\nafter that until [the cubicle episode in] May 2013 when Scheidler\ncomplained to Gunter and Donovan that Gunter told Scheidler that\nGunter would like to strangle Scheidler, Gunter moved her hands toward\nScheidler’s throat, and Gunter told Scheidler that Scheidler should leave\nand get another job.” (Appellant’s Br., DE 20 at 6–7, internal citations\nomitted.) “Scheidler had previously requested accommodations of not\nbeing startled, not having loud noises made around her, and not being\napproached suddenly, due to her disability, and Donovan, as well as\n\fNo. 17-2543 11\n\n “Reasonable accommodation under the ADA is a process,\nnot a one-oﬀ event.” Cloe v. City of Indianapolis, 712 F.3d 1171,\n1178 (7th Cir. 2013), overruled on other grounds by Ortiz v.\nWerner Enters., 834 F.3d 760, 764 (7th Cir. 2016). Here,\nScheidler has adduced no evidence that the interactive\nprocess broke down. Even accepting as we do for present\npurposes that she is disabled, that she asked her employer for\nreasonable accommodations, and that Gunter breached the\narrangement on one occasion by threatening to strangle\nScheidler, we cannot escape the facts that Scheidler otherwise\nreceived all the treatment she requested regarding her\ndisability, that she reported this singular cubicle episode to\nDonovan, and that no further problems occurred. IDOI\naddressed Gunter’s misconduct by reprimanding her. That\nthe reprimand did not benefit Scheidler because IDOI\nterminated her the same day is of no moment because IDOI\nwas allowed to terminate her for her misconduct during the\nelevator episode plus her misconduct during the cubicle\nepisode, even if her disability precipitated that misconduct.6\n We do not hold a single event could never support a claim\nfor failure to accommodate. We merely conclude on this\n\nGunter, Ankney, and … other coworkers, had granted those\naccommodations before this incident.” (Id. at 10.)\n6Felix, 828 F.3d at 568–69; Pernice v. City of Chicago, 237 F.3d 783, 785 (7th\nCir. 2001) (“[A]n employee can be terminated for violations … even if the\n… violations occurred under the influence of a disability.”); Palmer v.\nCircuit Court of Cook Cty., Ill., 117 F.3d 351, 352 (7th Cir. 1997) (“There is no\nevidence [plaintiff] was fired because of her mental illness. She was fired\nbecause she threatened to kill another employee. The cause of the threat\nwas … her mental illness … . But if an employer fires an employee because\nof … unacceptable behavior, the fact that that behavior was precipitated\nby a mental illness does not present an issue under the [ADA].”)\n\f12 No. 17-2543\n\nrecord the single cubicle episode does not support this claim.\nAny error in conflating the claim for failure to accommodate\nwith the claim for disparate treatment was therefore harmless.\nB. Retaliation\n Scheidler next argues the court erred in granting summary\njudgment on her retaliation claims.\n1. Title VII retaliation\n Title VII bans employers from retaliating against\nemployees who exercise rights under it. Title VII protects\n“any … employees” who “opposed any practice” banned by\nthe statute, or who “made a charge, testified, assisted, or\nparticipated in any manner in an investigation, proceeding, or\nhearing” under the statute. 42 U.S.C. § 2000e-3(a).\n A retaliation claim requires statutorily protected activity,\nwhich generally involves subjective and objective factors:\n“The plaintiﬀ must not only have a subjective (sincere, good\nfaith) belief that he opposed an unlawful practice; his belief\nmust also be objectively reasonable, which means that the\ncomplaint must involve discrimination that is prohibited by\nTitle VII.” Hamner v. St. Vincent Hosp. and Health Care Ctr., 224\nF.3d 701, 707 (7th Cir. 2000), overruled on other grounds by\nHively v. Ivy Tech Cmty. Coll. Ind., 853 F.3d 339 (7th Cir. 2017).\n Scheidler claims her elevator comment—“It’s who you\nknow and who you blow”—was statutorily protected activity.\nBut the court held she failed both the subjective and objective\nfactors because she did not have a sincere, good-faith belief\nshe opposed an unlawful practice and because her comment\ndid not involve discrimination prohibited by Title VII. The\ncourt noted she testified she did not think her comment was\nsexual. She told the ALJ she did not think “blow” had a sexual\n\fNo. 17-2543 13\n\nconnotation and she meant merely “[b]lowing hot air.”7 The\ncourt noted the possibility a comment could be interpreted to\ninvolve a sex act does not make it a complaint of sex\ndiscrimination. And the court noted she had not provided any\nevidence she rooted her comment in her gender.8\n Scheidler argues the court erred because the IDOI\nconsidered the comment to be a complaint of quid pro quo\nsexual harassment, and an employer’s mistaken belief that an\nemployee engaged in protected activity sustains retaliation.\nFor support, she cites Heﬀernan v. City of Paterson, N.J., 136 S.\nCt. 1412, 1418–19 (2016). But it is distinguishable. It involved\na First Amendment claim, not a Title VII retaliation claim.\nCertainly we are open to persuasion by analogy, but she does\nnot develop suﬃcient arguments for this, and we decline to\nmake them for her. Also the cases are factually\ndistinguishable. In Heﬀernan, defendant mistakenly thought\nplaintiﬀ engaged in protected political speech, and punished\nhim. But in our case, neither party thought the comment was\n\n\n7“Blow” has various potential meanings. Another Lear famously hurls it\nwithout obvious sexual innuendo: “Blow winds … ! Rage, blow!” William\nShakespeare, King Lear, Act III, sc. ii.\n8 Even later, at trial, Scheidler did not characterize “blow” as sexual: “I\nmeant it’s who you know; and when I say, ‘It’s who you blow,’ you know\nyou got somebody that you talk most up to, that knows you in your\nprivate life. Her husband … had been president of the Indiana Insurance\nAssociation. So she was and her husband was known … by the\nCommissioner.” Scheidler did not testify she meant to accuse anyone of\nquid pro quo sexual harassment. She did not testify she meant anyone\nexpected her, as a woman, to give sex to get ahead in her job. She did not\nexplain her comment in relation to her gender. Instead, she testified she\nonly meant to complain about favoritism because Williams and her\nhusband knew the Commissioner. That complaint isn’t protected here.\n\f14 No. 17-2543\n\nan actual complaint of sexual harassment or discrimination.\nThat characterization apparently only arose late in litigation.\nScheidler’s reliance on Thompson v. North American Stainless,\n562 U.S. 170, 173–79 (2011), is also misplaced. That case\nmerely stands for the proposition that a person aggrieved by\nretaliation has standing to sue for it even if that person did\nnot engage in the protected activity but someone else did.\nNeither of these cases requires the conclusion that the\nsubjective component of the Title VII protected-activity\ninquiry is obviated if the employer mistakenly thinks the\nemployee engaged in statutorily protected activity.\n Besides, she oﬀers no evidence that her complaint satisfies\nthe objective factor. She oﬀers no evidence—and does not\neven claim—that the Commissioner (or anyone else with\nIDOI) asked for or received a sex act from Mary Ann Williams\n(or anyone else) in exchange for a promotion or any other\nemployment benefit. She oﬀers no evidence that her elevator\ncomment concerned actual discrimination prohibited by Title\nVII. So the court did not err in granting summary judgment\non the Title VII retaliation claim.\n2. Disability-based retaliation\n Surviving summary judgment on disability-based\nretaliation requires showing (1) statutorily protected activity;\n(2) adverse employment action; and (3) causal connection.\nGuzman v. Brown Cty., 884 F.3d 633, 642 (7th Cir. 2018). The\ncourt granted summary judgment against this claim because\nScheidler failed to show statutorily protected activity. She\nargues the court ignored several protected activities.\n First, she argues the court ignored her complaint about\ndisability discrimination to Gunter during the cubicle episode.\n\fNo. 17-2543 15\n\nThere, Scheidler explained that when Gunter (who did not\nhave a disability) was upset and took Xanax, she was allowed\nto move out of her position. But when Scheidler (who has a\ndisability) was upset, she was not given the same opportunity.\nScheidler cites her testimony before the ALJ. But there are\nnumerous problems with this argument. Foremost among\nthem is forfeiture. In the cited testimony, she never says she\ncomplained to Gunter about disability discrimination.\nScheidler does not say, for example, that she complained that\nGunter received better treatment than Scheidler because\nScheidler is disabled and Gunter is not. Indiana argues for\nforfeiture of this argument for failure to raise it below. In\nreply, Scheidler claims she did raise this argument below, but\nshe only cites a broader portion of her testimony before the\nALJ and two pages from her response to the motion for\nsummary judgment below. Again, nowhere in the cited\nmaterials does she say she complained to Gunter about\ndisability discrimination. So Scheidler forfeited this\nargument. And the record does not support it anyway.\n Second, she argues the court ignored the fact that when\nshe complained to HR about Gunter’s conduct during the\ncubicle episode, Scheidler told HR she suﬀered from bipolar\ndisorder and PTSD and that is why the situation startled and\nupset her particularly. Scheidler argues her statement to HR\nwas itself a complaint that Gunter failed to accommodate\nScheidler as requested. Here, she only cites her testimony\nbefore the ALJ. But the cited testimony does not support her\nargument. Moreover, in neither her initial appellate brief nor\nher reply does she point to a time when she raised this specific\nargument to the district court. The mere fact that Scheidler\nargued below that Gunter and others failed to accommodate\nher disability misses the point. Such an argument is not\n\f16 No. 17-2543\n\ntantamount to an argument that Scheidler complained to HR\nthat Gunter failed to accommodate and then IDOI retaliated\nagainst Scheidler for making that complaint. So she forfeited\nthis argument. Also, the record does not support it. Therefore\nwe need not address the other problems with it.\n Third, she argues the court ignored the fact that her\nstatement to HR that her disabilities explained her reaction to\nGunter was itself a request for an accommodation regarding\nScheidler’s reaction. Here, she only cites the order granting\nsummary judgment. Indiana argues for forfeiture for failure\nto develop. We agree. We also note her response to the motion\nfor summary judgment did not adequately develop this\nargument. And the record does not support it anyway.\n Her remaining arguments regarding disability-based\nretaliation are unavailing. The court committed no reversible\nerror in granting summary judgment on this claim.\nC. Commissioner\n Scheidler brought claims against Indiana and IDOI\nCommissioner Stephen W. Robertson, in both his oﬃcial and\npersonal capacities. The court granted full summary\njudgment to Robertson on grounds not raised by Defendants,\nwithout notice or a reasonable response time, in violation of\nRule 56(f)(2). Appellees admit this was an error. But the error\nwas harmless. Independent of the Robertson irregularity,\nScheidler lost all her claims at summary judgment or trial\nanyway. She oﬀers no satisfactory explanation of how the\npremature summary judgment for Robertson ultimately\nprejudiced her. Finding no reversible error regarding\nsummary judgment, we turn to the trial.\n\fNo. 17-2543 17\n\nD. Exclusion of Thomas evidence\n Donna Thomas was an IDOI employee terminated in\nDecember 2011 after saying a racial slur. HR Director Dailey\ndiscussed Thomas at Scheidler’s ALJ hearing. In moving for\nsummary judgment, Defendants referenced this testimony.\nDefendants asserted they terminated Thomas for her single\nslur. Scheidler challenged this at summary judgment. She\nsaid Thomas committed multiple infractions before the slur,\nDefendants gave her progressive discipline rather than\nimmediate termination, and they did not terminate her for a\nsingle slur.\n At trial, after the direct examination of Scheidler, her\nattorney asked to be allowed to introduce four documents\nfrom Thomas’s personnel file to show IDOI treated a\ncomparable person better than Scheidler. The court denied\nthe admissibility of these documents, but expressly allowed\nthe possibility Scheidler could introduce them through other\nwitnesses. But she failed to pursue this opening. She called no\nfurther witnesses and she did not seek admission of the\ndocuments through any Indiana witness.\n Therefore Scheidler forfeited this evidentiary issue by\nforgoing the court’s invitation to seek admission of the\nexhibits later. See Ennin v. CNH Indus. Am., 878 F.3d 590, 596\n(7th Cir. 2017) (concluding it is “the very essence of waiver”\nto choose not to present evidence when given the\nopportunity). Anyway, the standard of review is abuse of\ndiscretion, Haynes v. Ind. Univ., 902 F.3d 724, 730 (7th Cir.\n2018), and the court did not abuse its discretion.\n Besides, Scheidler has not oﬀered suﬃcient reasons to\nconvince us admission would have changed the outcome.\n\f18 No. 17-2543\n\n IV. Conclusion\n We considered all Scheidler’s arguments and found none\navailing. Finding no reversible error, we AFFIRM.\n[END_CASE]", "role": "user" } ]
4,585,192	UNITED STATES of America, Plaintiff-Appellee, v. Blair COOK, Defendant-Appellant.	United States v. Blair Cook	2019-01-28	18-1343	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Flaum, Manion, Rovner", "parties": "", "opinions": [{"author": "Ilana Kara Diamond Rovner", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\nNo. 18-1343\n\nUNITED STATES OF AMERICA,\n Plaintiff-Appellee,\n\n v.\n\n\nBLAIR COOK,\n Defendant-Appellant.\n\n\n Appeal from the United States District Court for the\n Western District of Wisconsin.\n No. 3:17-cr-00048-001 — James D. Peterson, Chief Judge.\n\n\n\n ARGUED SEPTEMBER 13, 2018 — DECIDED JANUARY 28, 2019\n\n\n Before FLAUM, MANION, and ROVNER, Circuit Judges.\n ROVNER, Circuit Judge. A jury convicted Blair Cook of being\nan unlawful user of a controlled substance (marijuana) in\npossession of a firearm. See 18 U.S.C. § 922(g)(3). Cook appeals\nhis conviction, contending that the statute underlying his\nconviction is facially vague, that it improperly limits his\nSecond Amendment right to possess a firearm, and that the\n\f2 No. 18-1343\n\ndistrict court did not properly instruct the jury as to who\nconstitutes an unlawful user of a controlled substance. We\naffirm Cook’s conviction.\n I.\n On May 25, 2017, officers of the Madison, Wisconsin police\ndepartment conducted a traffic stop of the car that Cook was\ndriving. When officers approached the car and spoke with\nCook, they noticed a strong odor of marijuana emanating from\nthe car. Apart from the possibility that Cook was driving under\nthe influence of marijuana, Cook was also driving on a\nsuspended license and without a license plate on the front of\nhis vehicle, so the officers decided to detain him and ordered\nhim to step out of the vehicle. Officer Matthew Wentzel\nremoved a loaded, .40-caliber Glock Model 23 pistol from a\nholster under Cook’s shoulder. The gun had an extended 22-\nround capacity magazine with 19 bullets remaining. Cook was\ntransported to the police station for further questioning.\nDuring a recorded interview at the station, Cook acknowl-\nedged to Wentzel that he had used marijuana almost daily for\nnearly ten years (since the age of 14), that he did so because\nmarijuana calmed him down, and that he had smoked two\n“blunts” earlier that day.1 On prodding from the police, Cook\nultimately produced a small packet from his groin area\ncontaining a half ounce of marijuana.\n Cook had purchased the firearm from Max Creek Outdoors\nin Oregon, Wisconsin on April 2, 2017. At the time of the\n\n\n1\n “Blunt” is a street term for a cigar from which the tobacco has been\nremoved and replaced with marijuana.\n\fNo. 18-1343 3\n\npurchase, he was required to complete a Firearms Transaction\nRecord Form 4473 promulgated by the Bureau of Alcohol,\nTobacco, Firearms, and Explosives (“ATF”). On that form,\nCook answered “No” to the question, “Are you an unlawful\nuser of, or addicted to, marijuana or any depressant, stimulant,\nnarcotic drug, or any other controlled substance?” Directly\nunder that question the reader of the form was admonished,\n“Warning: The use or possession of marijuana remains\nunlawful under Federal law regardless of whether it has been\nlegalized or decriminalized for medical or recreational pur-\nposes in the state where you reside.”\n A grand jury subsequently charged Cook with two of-\nfenses: possession of a firearm and ammunition by an “unlaw-\nful user” of marijuana, in violation of section 922(g)(3), and\nmaking a false statement (that he was not an unlawful user of\nmarijuana) on the ATF form in connection with his purchase of\na firearm and ammunition, in violation of 18 U.S.C.\n§ 924(a)(1)(A).\n Cook moved to dismiss both counts of the indictment on\nthe ground that the term “unlawful user” of a controlled\nsubstance found in sections 922(g)(3) and 924(a)(1)(A) is\nunconstitutionally vague. The district court denied the motion.\nR. 21 at 2–3.\n The district court subsequently gave the following instruc-\ntion to the jury as to who constitutes an “unlawful user” of\nmarijuana:\n The defendant was an unlawful user of mari-\n juana if he used marijuana on a regular and\n ongoing basis for a period of time that began\n\f4 No. 18-1343\n\n before and continued through the date of the\n charged offense. The government is not required\n to prove that the defendant was under the\n influence of marijuana when he filled out the\n Firearms Transaction Record or when he pos-\n sessed the firearm. The government is not re-\n quired to prove that the defendant used mari-\n juana on any particular day, or within a certain\n number of days of when he committed the\n charged offenses.\nR. 44 at 8; R. 56 at 70–71 (emphasis in original). The defense\nrejected the government’s offer to include an additional\nsentence in this instruction advising the jury that a one-time\nuse of marijuana is insufficient to render the defendant an\n“unlawful user” within the meaning of either statute. R. 87 at\n17.\n Following a one-day trial, a jury convicted Cook on the\nsection 922(g)(3) charge but was unable to reach a verdict on\nthe section 924 charge, which the district court dismissed\nwithout prejudice, R. 53. The district court denied Cook’s Rule\n33 motions for a new trial (R. 73) and ordered Cook to serve a\nfour-year term of probation in lieu of any term of imprison-\nment (R. 76).\n II.\n Section 922(g)(3) provides in relevant part that “[i]t shall be\nunlawful for any person … who is an unlawful user of or\naddicted to any controlled substance (as defined in section 102\nof the Controlled Substances Act (21 U.S.C. § 802)) … to …\npossess in or affecting commerce, any firearm or ammunition\n\fNo. 18-1343 5\n\n… .” Marijuana is a Schedule I controlled substance, see 21\nU.S.C. § 812(c)(10), and because the Glock pistol Cook pur-\nchased had previously traveled in interstate commerce (it was\nmanufactured in Smyrna, Georgia), section 922(g)(3) forbade\nCook’s possession of the gun at the time of the May 2017 traffic\nstop provided he qualified as an “unlawful user” of marijuana,\nwhich the jury necessarily found that he did.\n Cook challenges his conviction pursuant to this statute on\nthree grounds: (1) the statute is facially vague as to who\nconstitutes an “unlawful user” of a controlled substance; (2)\nthe statute violates his Second Amendment right to possess a\nfirearm; and (3) the jury instruction defining “unlawful user”\nwas inadequate. For the reasons that follow, we find none of\nthese arguments to be persuasive.\nA. Facial vagueness challenge to section 922(g)(3).\n Cook contends that section 922(g)(3) is vague on its face,\nsuch that his conviction violates the Fifth Amendment’s due\nprocess clause. The void-for-vagueness doctrine requires that\na criminal statute define an offense with sufficient clarity that\nan ordinary person has fair notice of what conduct is prohib-\nited and so as to avoid arbitrary and discriminatory enforce-\nment. See, e.g., Skilling v. United States, 561 U.S. 358, 402–03, 130\nS. Ct. 2896, 2927–28 (2010); United States v. Sylla, 790 F.3d 772,\n774–75 (7th Cir. 2015). “What renders a statute vague is not the\npossibility that it will sometimes be difficult to determine\nwhether the incriminating fact it establishes has been proved;\nbut rather the indeterminacy of precisely what that fact is.”\nUnited States v. Williams, 553 U.S. 285, 306, 128 S. Ct. 1830, 1846\n(2008).\n\f6 No. 18-1343\n\n The general practice, outside of the First Amendment\ncontext,2 has been to consider the purported vagueness of a\nstatute in light of the facts of the particular case—i.e., as\napplied—rather than in the abstract. See, e.g., Maynard v.\nCartwright, 486 U.S. 356, 361, 108 S. Ct. 1853, 1857–58 (1988);\nUnited States v. Johnson, 875 F.3d 360, 370 (7th Cir. 2017). This\nmeans, of course, that a litigant challenging the statute ordi-\nnarily must show that it is vague as applied to him; and if the\nstatute undoubtedly applies to his conduct, he will not be\nheard to argue that the statute is vague as to one or more\nhypothetical scenarios. See Holder v. Humanitarian Law Project,\n561 U.S. 1, 18–19, 130 S. Ct. 2705, 2718–19 (2010) (quoting\nVillage of Hoffman Estates v. Flipside Hoffman Estates, Inc., 455\nU.S. 489, 495, 102 S. Ct. 1186, 1191 (1982)); Broadrick v. Okla-\nhoma, supra n.2., 413 U.S. at 610, 93 S. Ct. at 2915 (collecting\ncases).\n Nonetheless, the Supreme Court has on a number of\noccasions entertained facial challenges to criminal statutes that\ndo not implicate First Amendment concerns. See, e.g., Skilling,\n561 U.S. at 402–14, 130 S. Ct. at 2927–33 (honest services fraud);\nCity of Chicago v. Morales, 527 U.S. 41, 52–64, 119 S. Ct. 1849,\n1857–63 (1999) (loitering by gang members in public spaces);\nLanzetta v. New Jersey, 306 U.S. 451, 453–58, 59 S. Ct. 618, 619–21\n(1939) (gang participation); United States v. L. Cohen Grocery Co.,\n255 U.S. 81, 89–93, 41 S. Ct. 298, 300–01 (1921) (price gouging).\nAs we noted in United States v. Jones, 689 F.3d 696 (7th Cir.\n\n\n2\n When a statute implicates activities protected by the First Amendment,\nthere is a special concern that free speech and expression not be chilled. See\nBroadrick v. Oklahoma, 413 U.S. 601, 611–12, 93 S. Ct. 2908, 2915–16 (1973).\n\fNo. 18-1343 7\n\n2012), abrogated on other grounds by Johnson v. United States, 135\nS. Ct. 2551 (2015), the common thread uniting these cases with\nfacial challenges in the First Amendment context appears to be\na concern (or at least a colorable contention) that the chal-\nlenged statute “simply has no core” and lacks “any ascertain-\nable standard for inclusion and exclusion, ”id. at 703 (quoting\nSmith v. Goguen, 415 U.S. 566, 578, 94 S. Ct. 1242, 1249 (1974)).\nSuch a standardless statute poses a trap for the person acting\nin good faith, who is given no guidepost by which he can\ndivine what sort of conduct is prohibited. See Colautti v.\nFranklin, 439 U.S. 379, 395, 99 S. Ct. 675, 685 (1979), overruled in\npart on other grounds, Webster v. Reproductive Health Servs., 492\nU.S. 490, 109 S. Ct. 3040 (1989). The concern is heightened\nwhen the statute contains no mens rea requirement, Colautti,\n439 U.S. at 395, 99 S. Ct. at 685–86, and the uncertainty as to\nexactly what is proscribed “threatens to inhibit the exercise of\nconstitutionally protected rights,” id. at 391, 99 S. Ct. at 683. See\nalso Morales, 527 U.S. at 55, 119 S. Ct. at 1858.\n The statutory prohibition at issue here does not present\nsuch concerns. True enough, section 922(g)(3) does implicate\nCook’s Second Amendment right to possess a gun. But the\nprohibition is not a strict liability offense requiring no mens rea,\nas in Colautti. By virtue of the separate penalties provision\nfound in 18 U.S.C. § 924(a)(2), a violation of section 922(g)(3)\nmust be knowing – that is, the defendant must have knowl-\nedge of the facts that constitute the offense. See Holder, 561 U.S.\nat 21, 130 S. Ct. at 2720 (“the knowledge requirement of the\nstatute further reduces any potential for vagueness, as we have\nheld with respect to other statutes containing a similar require-\nment”) (collecting cases); United States v. Johnson, 911 F.3d 849,\n\f8 No. 18-1343\n\n853 (7th Cir. 2018) (word “knowingly” cures any potential\nvagueness in challenged condition of supervised release)\n(citing Screws v. United States, 325 U.S. 91, 102, 65 S. Ct. 1031,\n1036 (1945)). More importantly, there is, as our decision in\nUnited States v. Yancey, 621 F.3d 681 (7th Cir. 2010) (per curiam)\nmakes clear, a readily appreciable core of conduct prohibited\nby the statute.\n Yancey construes the term “unlawful user,” as used in\nsection 922(g)(3), to mean one who regularly or habitually\ningests controlled substances in a manner other than as\nprescribed by a physician. Id. at 682. Our opinion adds that\nsuch use must be contemporaneous with the defendant’s\npossession of a gun. Id. at 687 (collecting cases); see also United\nStates v. Grap, 403 F.3d 439, 446 (7th Cir. 2005) (adopting same\ncontemporaneity requirement for purposes of U.S.S.G.\n§ 2K2.1(a)(6), which specifies the base offense level for\n“prohibited person” convicted of firearms offense) (collecting\ncases). We rendered this interpretation of section 922(g)(3) in\nthe course of rejecting a Second Amendment challenge to the\nstatute. Noting the well-established link between chronic drug\nuse and violence, we concluded that section 922(g)(3)’s ban on\ngun possession by those who regularly engage in illegal drug\nuse was substantially related to the important government\ninterest in preventing violent crime. 621 F.3d at 686–87. We\nmust take into account Yancey’s gloss on the statute in evaluat-\ning Cook’s vagueness claim. See Skilling, 561 U.S. at 405, 130\nS. Ct. at 2929 (“It has long been our practice, … before striking\na federal statute as vague, to consider whether the prescription\nis amenable to a limiting construction.”); Pleasureland Museum,\n\fNo. 18-1343 9\n\nInc. v. Beutter, 288 F.3d 988, 995–96 (7th Cir. 2002); Waldron v.\nMcAtee, 723 F.2d 1348, 1354 (7th Cir. 1983).\n Cook is thus not in a position to claim that the statute is so\nindefinite as to inhibit the legitimate exercise of Second\nAmendment rights. Whatever doubt there might be at the\nmargins as to conduct potentially reached by section 922(g)(3),\nthere can be no doubt as to the core of conduct that the statute\n(as construed by Yancey) proscribes: the possession of a firearm\nby an individual engaged in the regular, non-prescribed use of\na controlled substance. Indeed, it would appear that Cook’s\nconduct—possession of a firearm in the midst of a nearly ten-\nyear period of daily marijuana use—epitomizes that core,\nwhich may explain why Cook is so keen to challenge the\nstatute on its face rather than as applied.\n Cook nonetheless suggests that the Supreme Court’s recent\ndecision in Johnson authorizes his facial vagueness challenge,\nregardless of whether the statute is vague as applied to his\nparticular conduct. Johnson declared the (now defunct) residual\nclause of the Armed Career Criminal Act (“ACCA”) to be\nimpermissibly vague without requiring the defendant to first\nshow that the clause was vague as applied to him. 135 S. Ct. at\n2563. The ACCA specifies an enhanced sentence of 15 years to\nlife for one convicted of a firearms offense if the defendant has\nthree or more prior convictions for either a “serious drug\noffense” or a “violent felony.” 18 U.S.C. § 924(e)(1). As relevant\nhere, the statute defines “violent felony” to mean a crime\npunishable by a year or more in prison which “is burglary,\narson, or extortion, involves use of explosives, or otherwise\ninvolves conduct that presents a serious potential risk of physical\ninjury to another[.]” § 924(e)(2)(B)(ii) (emphasis ours). The Court\n\f10 No. 18-1343\n\npreviously had construed section 924(e)(2)(B)(ii) generally to\nrequire a sentencing court to employ a categorical approach\nfocusing on the generic version of an offense (that is, what the\nelements of the offense required), rather than the defendant’s\nactual conduct, in deciding whether his prior conviction\nqualified as a violent felony. See Taylor v. United States, 495 U.S.\n575, 602, 110 S. Ct. 2143, 2160 (1990). In view of the categorical\ninquiry mandated by Taylor, two aspects of the residual clause\nwe have italicized led the Supreme Court in Johnson to con-\nclude that this clause was impermissibly vague: (1) after\npostulating the archetypal version of the crime, one had to\ndecide how much risk of physical injury was posed by that\nidealized version of the offense; and (2) one also had to\nconsider how much risk of injury was required to render an\noffense violent as compared with the offenses expressly\nidentified in the statute (burglary, arson, extortion, and\noffenses involving the use of explosives). 135 S. Ct. at 2557–58.\nBoth inquiries were plagued by uncertainty, as evidenced by\nboth the Court’s own demonstrated inability in a series of prior\nresidual clause cases to articulate a “principled and objective\nstandard” for identifying crimes that present a serious risk of\nphysical injury, id. at 2558, as well as the “numerous splits\namong the lower federal courts,” where the clause had proved\n“nearly impossible to apply consistently,” id. at 2560 (quoting\nChambers v. United States, 555 U.S. 122, 133, 129 S. Ct. 687, 694\n(2009) (Alito, J., concurring in judgment)). “Nine years’\nexperience trying to derive meaning from the residual clause\nconvinces us that we have embarked upon a failed enterprise,”\nthe Court concluded. “Each of the uncertainties in the residual\nclause may be tolerable in isolation, but ‘their sum makes a\n\fNo. 18-1343 11\n\ntask for us which at best could be only guesswork.’” Id.\n(quoting United States v. Evans, 333 U.S. 483, 495, 68 S. Ct. 634,\n641 (1948)).\n In declaring the residual clause to violate the due process\nclause, the Court expressly rejected the government’s conten-\ntion that an otherwise vague statute is constitutional so long as\n“there is some conduct that clearly falls within the provision’s\ngrasp.” Id. at 2561. While acknowledging that statements in\nsome of its opinions could be read to support such a rule, the\nCourt emphasized that its prior holdings squarely contradicted\nsuch a practice. Id. at 2560–61. Simply because it is possible to\nenvision some factual scenarios that would violate an\nambiguously-worded statute is not enough to rescue that\nstatute from a vagueness challenge, the Court made clear. Id.\nat 2561.\n The Court was also at pains to emphasize, however, that\nsimply because a criminal statute uses qualitative language to\narticulate a liability standard does not mean that the statute is\nimpermissibly vague, especially when the statute under\nscrutiny calls upon the court to apply that standard to a\nconcrete set of facts. Id. at 2561; see also id. at 2558.\n As a general matter, we do not doubt the consti-\n tutionality of laws that call for the application of\n a qualitative standard such as “substantial risk”\n to real-world conduct; “the law is full of in-\n stances where a man’s fate depends on his\n estimating rightly … some matter of degree,”\n Nash v. United States, 229 U.S. 373, 377, 33 S. Ct.\n 780 (1913). The residual clause, however, re-\n\f12 No. 18-1343\n\n quires application of the “serious potential risk”\n standard to an idealized ordinary case of the\n crime. Because “the elements necessary to\n determine the imaginary ideal are uncertain\n both in nature and degree of effect,” this abstract\n inquiry offers significantly less predictability\n than one “[t]hat deals with the actual, not with\n an imaginary condition other than the facts.”\n International Harvester Co. of America v. Kentucky,\n 234 U.S. 216, 223, 34 S. Ct. 853 (1914).\n135 S. Ct. at 2561.\n It is not clear how much Johnson—and the Court’s follow-on\ndecision last term in Sessions v. Dimaya, 138 S. Ct. 1204 (2018),\nwhich invalidated similar language in the Immigration and\nNationality Act—actually expand the universe of litigants who\nmay mount a facial challenge to a statute they believe is vague.\nNot surprisingly, Cook contends that Johnson permits any\ndefendant who can postulate doubts as to what particular\nconduct a criminal statute does or does not reach to pursue a\nfacial challenge to that statute, without having to show that\nthere is any real question as to whether his own conduct is\nproscribed. It is true that Johnson puts to rest the notion—found\nin any number of pre-Johnson cases3—that a litigant must show\n\n\n3\n See, e.g., United States v. Salerno, 481 U.S. 739, 745, 107 S. Ct. 2095, 2100\n(1987) (“A facial challenge to a legislative Act is, of course, the most difficult\nchallenge to mount successfully, since the challenger must establish that no\nset of circumstances exists under which the Act would be valid.”); Johnson,\n135 S. Ct. at 2574, 2581 (Alito, J., dissenting); Hegwood v. City of Eau Claire,\n (continued...)\n\fNo. 18-1343 13\n\nthat the statute in question is vague in all of its applications in\norder to successfully mount a facial challenge. 135 S. Ct. at\n2561. And, as we have mentioned, Johnson likewise rejects the\nnotion that simply because one can point to some conduct that\nthe statute undoubtedly would reach is alone sufficient to save\nit from a vagueness challenge. Id. So Cook has those aspects of\nJohnson going for him. But so much of the Court’s analysis in\nJohnson deals with a statute that is in key respects sui generis. In\nparticular, it was the categorical approach called for by the\nACCA’s residual clause—requiring courts to look not at the\nactual conduct underlying the defendant’s prior conviction but\nrather at the archetypal version of the offense and then to\nconsider whether the risk of injury posed by that version was\nsufficient to render the crime violent—which the court found\nto be particularly vexing. Id. at 2557–58. Assessing the degree\nof risk posed by an idealized “typical” version of an offense\nwas significantly different, as the Court emphasized, from\nlooking at the risks posed by a set of actual, concrete facts. Id.\nat 2558; see also Dimaya, 138 S. Ct. at 1214–16.\n Cook’s appeal, by contrast, presents a much more routine\nvagueness challenge that highlights some imprecision in the\nstatutory language and posits uncertainty as to whether the\nstatute might apply to certain hypothetical facts. But section\n922(g)(3) does not call for the court to engage in any abstract\nanalysis; it calls on the court to apply the statutory prohibition\n\n\n3\n (...continued)\n676 F.3d 600, 604 (7th Cir. 2012); Sherman ex rel. Sherman v. Koch, 623 F.3d\n501, 520 (7th Cir. 2010); Schor v. City of Chicago, 576 F.3d 775, 781 (7th Cir.\n2009).\n\f14 No. 18-1343\n\nto a defendant’s real-world conduct. See United States v.\nDouglas, 907 F.3d 1, 11, 14 (1st Cir. 2018), pet’n for cert. filed, No.\n18-7331 (U.S. Jan. 7, 2019); Ovalles v. United States, 905 F.3d\n1231, 1233–34, 1252 (11th Cir. 2018) (en banc); United States v.\nBarrett, 903 F.3d 166, 178–79, 182 (2d Cir. 2018), pet’n for cert.\nfiled, No. 18-6985 (U.S. Dec. 3, 2018); United States v. Larson,\n— F. App’x —, 2018 WL 4203470, at *2 (4th Cir. Sept. 4, 2018)\n(per curiam) (unpublished). Moreover, there is, as we have\ndiscussed, a readily appreciable core of conduct that the statute\nreaches: If one regularly uses marijuana or another controlled\nsubstance other than as directed by a physician, he may not\npossess a firearm so long as the use persists. Consequently,\ncitizens who wish to exercise their Second Amendment rights\nand law enforcement officials alike have reasonable notice of\nwhat is prohibited. This is not a “hopelessly indeterminate”\nstatute that leaves everyone to guess what conduct is legal and\nwhat conduct is proscribed.4 The statute, as construed by\n\n\n4\n We recognize that a liability standard turning on the regularity of a\nparticular activity can in some instances present a vagueness problem. See\nWhatley v. Zatecky, 833 F.3d 762 (7th Cir. 2016) (finding impermissibly vague\nstatute specifying enhanced sentence for individual possessing controlled\nsubstance within 1000 feet of “youth program center,” defined as any\nbuilding that provides youth-oriented programs or services “ on a regular\nbasis”). In contrast to Whatley, the statute at issue here is not a strict-liability\nprovision, and one’s liability under section 922(g)(3) turns on the regularity\nof one’s own conduct rather than the activity occurring in a building that\nmay exhibit no indicia of what programs and services are provided therein\nand how often. One who uses a controlled substance necessarily knows\nhow often he does so. And whatever doubt there might be as to when one’s\ndrug use becomes regular, Cook as a daily user of marijuana over the\n (continued...)\n\fNo. 18-1343 15\n\nYancey, does incorporate a qualitative liability standard, and\none can posit, as Cook does, hypothetical scenarios which\npresent close questions as to whether an individual’s use of a\ncontrolled substance is unlawful, whether it qualifies as\nregular and ongoing, and/or whether that use is sufficiently\ncontemporaneous with his or her possession of a firearm. But\nin contrast with the residual clause, there is no judicial history\nof courts struggling to appreciate what particular conduct\nCongress meant to reach with section 922(g)(3) or to apply the\nstatutory terms to varying sets of facts. The uniform rejection\nof as-applied vagueness challenges to section 922(g)(3) by itself\nsuggests that it is not anything like the sort of problematic\nstatute the Court confronted in Johnson. See United States v.\nBramer, 832 F.3d 908, 909–10 (8th Cir. 2016) (per curiam); United\nStates v. Edwards, 540 F.3d 1156, 1162 (10th Cir. 2008); United\nStates v. Patterson, 431 F.3d 832, 836 (5th Cir. 2005); United States\nv. Purdy, supra n.4, 264 F.3d at 812. And simply because it may\nsometimes be difficult to determine if an individual’s drug use\nmeets section 922(g)(3)’s standard for liability does not signify\nthat the statute is impermissibly vague, given that there is no\ndoubt as to the essence of what the statute forbids: the posses-\nsion of a firearm by one who is engaged in the regular and\nongoing use of a controlled substance other than as prescribed\n\n\n\n4\n (...continued)\ncourse of a decade cannot reasonably claim to have been in doubt as to\nwhether his use qualified as regular. See United States v. Purdy, 264 F.3d 809,\n812 (9th Cir. 2001) (“Purdy’s [regular, years-long] drug use … was sufficient\nto put him on notice that he fell within the statutory definition of ‘unlawful\n[drug] user.’”).\n\f16 No. 18-1343\n\nby a doctor. See Williams, supra, 553 U.S. at 306, 128 S. Ct. at\n1846.\n For these reasons, we are not convinced that Cook is\nentitled to mount a facial vagueness challenge to section\n922(g)(3). Johnson did not alter the general rule that a defendant\nwhose conduct is clearly prohibited by a statute cannot be the\none to make a facial vagueness challenge. United States v.\nWestbrooks, 858 F.3d 317, 325–26 (5th Cir. 2017) (collecting\ncases), cert. granted & judgment vacated on other grounds, 138\nS. Ct. 1323 (2018). Cook’s conduct, if anything, undoubtedly\nfalls within the obvious core of conduct proscribed by the\nstatute. Per his statement at the police station, he had been\nusing marijuana daily for almost ten years and he had smoked\ntwo blunts on the day of his arrest; and the police officers who\nstopped his vehicle and took him into custody noted a strong\nodor of marijuana emanating from the interior and that Cook\nhimself reeked of the substance. These facts no doubt explain\nwhy Cook has declined to pursue an as-applied vagueness\nchallenge to section 922(g)(3): it would surely fail. See United\nStates v. Jackson, 280 F.3d 403, 406 (4th Cir. 2002) (addressing\nfacts nearly identical to those presented here) (“While we do\nnot doubt that the exact reach of the statute is not easy to\ndefine, we agree with the government that this is not a border-\nline case. … Given the evidence, Jackson violated the plain\nmeaning of the statute.”).\n Cook’s attempt to challenge section 922(g)(3) as facially\nvague fails for all of the reasons we have discussed, and\nbecause he asserts no as-applied challenge to the statute, we\nreject his contention that the statute is inconsistent with his due\nprocess rights.\n\fNo. 18-1343 17\n\nB. Second Amendment\n Cook agrees that Yancey forecloses this challenge to section\n922(g)(3). Yancey, as noted, held that there was a substantial\nrelationship between the government’s legitimate interest in\npreventing violent crime and the statute’s ban on gun posses-\nsion by unlawful drug users. 621 F.3d at 683–87. Although\nCook asserts that Yancey was wrongly decided, he offers us no\nreal reason to reconsider our precedent on this point. As the\nlaw is settled in this circuit, we reject his Second Amendment\nobjection to the statute.\nC. Jury Instruction\n Cook argues finally that the district court did not properly\ninstruct the jury as to the elements of his offense. As we noted\nin our summary of the proceedings below, the court advised\nthe jury that “[t]he defendant was an unlawful user of mari-\njuana if he used marijuana on a regular and ongoing basis for\na period of time that began before and continued through the\ndate of the offense.” R. 44 at 8; R. 56 at 70–71 (emphasis\nomitted). The court added that Cook need not have been under\nthe influence of marijuana when he possessed a firearm, nor\nwas the government required to prove that he used marijuana\non any particular date or within a specified number of days of\nthe offense. (Recall that Cook had rejected the government’s\noffer to add language that use of marijuana on a single occa-\nsion was insufficient to establish unlawful drug use.) Cook\ncontends that the instruction as given was erroneous because\n(a) it was not grounded in the language of section 922(g)(3);\n(b) it was not consistent with Yancey’s holding as to who\nconstitutes an unlawful drug user; (c) the instruction was\n\f18 No. 18-1343\n\ninternally inconsistent; and (d) it foreclosed the defense from\nurging the jurors to use their own understanding of “unlawful\nuser” in assessing Cook’s conduct. None of these arguments is\npersuasive.\n The instruction was grounded in the language of the statute\nin that it endeavored, consistent with the case law regarding\nsection 922(g)(3), to define for the jury who constitutes an\nunlawful drug user. The statute itself does not define “unlaw-\nful drug user.” As discussed, this court in Yancey concluded\nthat an unlawful drug user is one who regularly uses a\ncontrolled substance, other than as prescribed by a physician,\ncontemporaneously with possessing a firearm. 621 F.3d at 682,\n687. In doing so, we acted in accord with other circuits which\nhave concluded that the statute’s reach is limited by two key\nrequirements: (1) regularity of drug use (2) that is sufficiently\ncontemporaneous with the possession of a firearm. See id.\n(collecting cases). That these are limits imposed on the offense\nby the judiciary rather than the face of the statute does not\nrender them invalid. See United States v. Lanier, 520 U.S. 259,\n266, 117 S. Ct. 1219, 1225 (1997) (“clarity at the requisite level\nmay be supplied by judicial gloss on an otherwise uncertain\nstatute”) (collecting cases); Skilling, supra, 561 U.S. at 405–06,\n130 S. Ct. at 2929–30 (before striking down a federal statute as\nvague courts will first consider if it is subject to a limiting\nconstruction that avoids vagueness); id. at 409 n.43, 130 S. Ct.\nat 2931 n.43 (“cases ‘paring down’ federal statutes to avoid\nconstitutional shoals are legion”). The district court appropri-\nately looked to Yancey’s gloss on the statute in defining\n“unlawful drug user” for the jury.\n\fNo. 18-1343 19\n\n Nor was the instruction inconsistent with Yancey. Cook\nsuggests that Yancey defined “unlawful user” of drugs to mean\neither one who is addicted to controlled substances or one who\nhas simply used them within the past year, and that the\nreference to “regular and ongoing” drug use in the district\ncourt’s instruction is both broader than addiction and narrower\nthan use within the past year. But Cook’s reading of Yancey is\nnot a faithful reading of the court’s opinion. The opinion makes\nclear that section 922(g)(3) requires regular or habitual drug use,\n621 F.3d at 682, that is contemporaneous with the possession\nof a firearm, id. at 687. Nowhere in our decision did we suggest\nthat a single or occasional, irregular use of a controlled\nsubstance within a year of the gun possession was sufficient to\nmeet these criteria. Nor did we indicate that regular or habitual\nuse necessarily equates with addiction. The instruction given\nhere was fully consistent with Yancey’s requirements: the term\n“regular” connotes a pattern of repeated drug use (be it\nvolitional or as the result of an addiction), and “ongoing”\nconnotes the requisite temporal nexus with possession of the\ngun.\n The instruction was also internally consistent. Cook’s\ncontention to the contrary focuses on the fact that the instruc-\ntion advised the jury, on the one hand, that his marijuana use\nmust have “beg[u]n before and continued through the date of\nthe charged offense” but, on the other hand, that he need not\nhave “used marijuana on any particular day, or within a\ncertain number of days of when he committed the charged\noffense.” These portions of the instruction were not at odds\nwith one another. Consistent with Yancey’s requirement that\nthe defendant’s drug use be contemporaneous with his\n\f20 No. 18-1343\n\npossession of a firearm, the court appropriately advised the\njury that Cook’s marijuana use must have been “ongoing” at\nthe time he was discovered in possession of a gun. But the\nrequirement that the drug use and firearm possession be\ncontemporaneous does not literally mean that the defendant\nmust have been ingesting (or under the influence of) a con-\ntrolled substance at the same time as he possessed the gun. The\nstatute, after all, prohibits firearm possession by a drug user,\nnot simply possession during drug use. So long as the defen-\ndant was still engaged in the regular use of a drug at the time\nof his firearm possession, it is not necessary to show that he\nused the drug on the day of his firearm possession, the day\nbefore, or within any particular number of days of the posses-\nsion. Thus, a person who routinely uses marijuana on week-\nends may violate section 922(g)(3) by possessing a firearm on\na Tuesday or Wednesday, because his possession of the gun is\ncontemporaneous with his ongoing pattern of drug use. The\ninstruction appropriately and coherently advised the jury on\nthese points.\n Finally, we are no more persuaded than the district judge\nwas that the instruction should have left it to the jurors to\nconsult their own collective sense of who constitutes an\n“unlawful user” of marijuana. Yancey establishes the relevant\nparameters on this point, and the district court was required to\nconvey those parameters to the jury to guide its decisionmak-\ning, which Judge Peterson did admirably.\n That said, our holding should not be construed to foreclose\nalternate versions of the “unlawful user” instruction. The Sixth\nand Eighth Circuits, for example, have promulgated instruc-\ntions with slightly different language. See MANUAL OF MODEL\n\fNo. 18-1343 21\n\nCRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT COURTS OF THE\nEIGHTH CIRCUIT § 6.18.922B, at 291–94 (2017); United States v.\nBurchard, 580 F.3d 341, 352 (6th Cir. 2009). Although the\narguments in this court and in the court below reflect some\nanticipation that we might settle upon our own preferred\nversion of the instruction in this appeal, we respectfully decline\nto do so. As the foregoing discussion makes clear, we find no\nfault with the particular instruction that Judge Peterson gave\nto the jury, and we need not go farther than that to resolve\nCook’s appeal. The task of drafting a model instruction, we\nbelieve, is better left to our Circuit’s Pattern Criminal Jury\nInstruction Committee, which has a membership that includes\npractitioners as well as judges and which can solicit and\nincorporate comments on any proposed instruction from the\nbar at large. We shall invite the Committee to consider a\npattern instruction for a section 922(g)(3) charge, including but\nnot limited to the issue of who constitutes an “unlawful user”\nof a controlled substance for purposes of this statute.\n III.\n For all of the foregoing reasons, we AFFIRM Cook’s\nconviction. We commend everyone involved in the briefing\nand arguing of this case, along with Judge Peterson and\nMagistrate Judge Crocker for their thorough and careful\nhandling of the case below. Their dedication and hard work\nhave greatly aided this court’s deliberation and resolution of\nthe appeal.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4362445/", "author_raw": "Ilana Kara Diamond Rovner"}]}	FLAUM	MANION	ROVNER	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4585192/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Blair COOK, Defendant-Appellant.\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-28\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\nNo. 18-1343\n\nUNITED STATES OF AMERICA,\n Plaintiff-Appellee,\n\n v.\n\n\nBLAIR COOK,\n Defendant-Appellant.\n\n\n Appeal from the United States District Court for the\n Western District of Wisconsin.\n No. 3:17-cr-00048-001 — James D. Peterson, Chief Judge.\n\n\n\n ARGUED SEPTEMBER 13, 2018 — DECIDED JANUARY 28, 2019\n\n\n Before FLAUM, MANION, and ROVNER, Circuit Judges.\n ROVNER, Circuit Judge. A jury convicted Blair Cook of being\nan unlawful user of a controlled substance (marijuana) in\npossession of a firearm. See 18 U.S.C. § 922(g)(3). Cook appeals\nhis conviction, contending that the statute underlying his\nconviction is facially vague, that it improperly limits his\nSecond Amendment right to possess a firearm, and that the\n\f2 No. 18-1343\n\ndistrict court did not properly instruct the jury as to who\nconstitutes an unlawful user of a controlled substance. We\naffirm Cook’s conviction.\n I.\n On May 25, 2017, officers of the Madison, Wisconsin police\ndepartment conducted a traffic stop of the car that Cook was\ndriving. When officers approached the car and spoke with\nCook, they noticed a strong odor of marijuana emanating from\nthe car. Apart from the possibility that Cook was driving under\nthe influence of marijuana, Cook was also driving on a\nsuspended license and without a license plate on the front of\nhis vehicle, so the officers decided to detain him and ordered\nhim to step out of the vehicle. Officer Matthew Wentzel\nremoved a loaded, .40-caliber Glock Model 23 pistol from a\nholster under Cook’s shoulder. The gun had an extended 22-\nround capacity magazine with 19 bullets remaining. Cook was\ntransported to the police station for further questioning.\nDuring a recorded interview at the station, Cook acknowl-\nedged to Wentzel that he had used marijuana almost daily for\nnearly ten years (since the age of 14), that he did so because\nmarijuana calmed him down, and that he had smoked two\n“blunts” earlier that day.1 On prodding from the police, Cook\nultimately produced a small packet from his groin area\ncontaining a half ounce of marijuana.\n Cook had purchased the firearm from Max Creek Outdoors\nin Oregon, Wisconsin on April 2, 2017. At the time of the\n\n\n1\n “Blunt” is a street term for a cigar from which the tobacco has been\nremoved and replaced with marijuana.\n\fNo. 18-1343 3\n\npurchase, he was required to complete a Firearms Transaction\nRecord Form 4473 promulgated by the Bureau of Alcohol,\nTobacco, Firearms, and Explosives (“ATF”). On that form,\nCook answered “No” to the question, “Are you an unlawful\nuser of, or addicted to, marijuana or any depressant, stimulant,\nnarcotic drug, or any other controlled substance?” Directly\nunder that question the reader of the form was admonished,\n“Warning: The use or possession of marijuana remains\nunlawful under Federal law regardless of whether it has been\nlegalized or decriminalized for medical or recreational pur-\nposes in the state where you reside.”\n A grand jury subsequently charged Cook with two of-\nfenses: possession of a firearm and ammunition by an “unlaw-\nful user” of marijuana, in violation of section 922(g)(3), and\nmaking a false statement (that he was not an unlawful user of\nmarijuana) on the ATF form in connection with his purchase of\na firearm and ammunition, in violation of 18 U.S.C.\n§ 924(a)(1)(A).\n Cook moved to dismiss both counts of the indictment on\nthe ground that the term “unlawful user” of a controlled\nsubstance found in sections 922(g)(3) and 924(a)(1)(A) is\nunconstitutionally vague. The district court denied the motion.\nR. 21 at 2–3.\n The district court subsequently gave the following instruc-\ntion to the jury as to who constitutes an “unlawful user” of\nmarijuana:\n The defendant was an unlawful user of mari-\n juana if he used marijuana on a regular and\n ongoing basis for a period of time that began\n\f4 No. 18-1343\n\n before and continued through the date of the\n charged offense. The government is not required\n to prove that the defendant was under the\n influence of marijuana when he filled out the\n Firearms Transaction Record or when he pos-\n sessed the firearm. The government is not re-\n quired to prove that the defendant used mari-\n juana on any particular day, or within a certain\n number of days of when he committed the\n charged offenses.\nR. 44 at 8; R. 56 at 70–71 (emphasis in original). The defense\nrejected the government’s offer to include an additional\nsentence in this instruction advising the jury that a one-time\nuse of marijuana is insufficient to render the defendant an\n“unlawful user” within the meaning of either statute. R. 87 at\n17.\n Following a one-day trial, a jury convicted Cook on the\nsection 922(g)(3) charge but was unable to reach a verdict on\nthe section 924 charge, which the district court dismissed\nwithout prejudice, R. 53. The district court denied Cook’s Rule\n33 motions for a new trial (R. 73) and ordered Cook to serve a\nfour-year term of probation in lieu of any term of imprison-\nment (R. 76).\n II.\n Section 922(g)(3) provides in relevant part that “[i]t shall be\nunlawful for any person … who is an unlawful user of or\naddicted to any controlled substance (as defined in section 102\nof the Controlled Substances Act (21 U.S.C. § 802)) … to …\npossess in or affecting commerce, any firearm or ammunition\n\fNo. 18-1343 5\n\n… .” Marijuana is a Schedule I controlled substance, see 21\nU.S.C. § 812(c)(10), and because the Glock pistol Cook pur-\nchased had previously traveled in interstate commerce (it was\nmanufactured in Smyrna, Georgia), section 922(g)(3) forbade\nCook’s possession of the gun at the time of the May 2017 traffic\nstop provided he qualified as an “unlawful user” of marijuana,\nwhich the jury necessarily found that he did.\n Cook challenges his conviction pursuant to this statute on\nthree grounds: (1) the statute is facially vague as to who\nconstitutes an “unlawful user” of a controlled substance; (2)\nthe statute violates his Second Amendment right to possess a\nfirearm; and (3) the jury instruction defining “unlawful user”\nwas inadequate. For the reasons that follow, we find none of\nthese arguments to be persuasive.\nA. Facial vagueness challenge to section 922(g)(3).\n Cook contends that section 922(g)(3) is vague on its face,\nsuch that his conviction violates the Fifth Amendment’s due\nprocess clause. The void-for-vagueness doctrine requires that\na criminal statute define an offense with sufficient clarity that\nan ordinary person has fair notice of what conduct is prohib-\nited and so as to avoid arbitrary and discriminatory enforce-\nment. See, e.g., Skilling v. United States, 561 U.S. 358, 402–03, 130\nS. Ct. 2896, 2927–28 (2010); United States v. Sylla, 790 F.3d 772,\n774–75 (7th Cir. 2015). “What renders a statute vague is not the\npossibility that it will sometimes be difficult to determine\nwhether the incriminating fact it establishes has been proved;\nbut rather the indeterminacy of precisely what that fact is.”\nUnited States v. Williams, 553 U.S. 285, 306, 128 S. Ct. 1830, 1846\n(2008).\n\f6 No. 18-1343\n\n The general practice, outside of the First Amendment\ncontext,2 has been to consider the purported vagueness of a\nstatute in light of the facts of the particular case—i.e., as\napplied—rather than in the abstract. See, e.g., Maynard v.\nCartwright, 486 U.S. 356, 361, 108 S. Ct. 1853, 1857–58 (1988);\nUnited States v. Johnson, 875 F.3d 360, 370 (7th Cir. 2017). This\nmeans, of course, that a litigant challenging the statute ordi-\nnarily must show that it is vague as applied to him; and if the\nstatute undoubtedly applies to his conduct, he will not be\nheard to argue that the statute is vague as to one or more\nhypothetical scenarios. See Holder v. Humanitarian Law Project,\n561 U.S. 1, 18–19, 130 S. Ct. 2705, 2718–19 (2010) (quoting\nVillage of Hoffman Estates v. Flipside Hoffman Estates, Inc., 455\nU.S. 489, 495, 102 S. Ct. 1186, 1191 (1982)); Broadrick v. Okla-\nhoma, supra n.2., 413 U.S. at 610, 93 S. Ct. at 2915 (collecting\ncases).\n Nonetheless, the Supreme Court has on a number of\noccasions entertained facial challenges to criminal statutes that\ndo not implicate First Amendment concerns. See, e.g., Skilling,\n561 U.S. at 402–14, 130 S. Ct. at 2927–33 (honest services fraud);\nCity of Chicago v. Morales, 527 U.S. 41, 52–64, 119 S. Ct. 1849,\n1857–63 (1999) (loitering by gang members in public spaces);\nLanzetta v. New Jersey, 306 U.S. 451, 453–58, 59 S. Ct. 618, 619–21\n(1939) (gang participation); United States v. L. Cohen Grocery Co.,\n255 U.S. 81, 89–93, 41 S. Ct. 298, 300–01 (1921) (price gouging).\nAs we noted in United States v. Jones, 689 F.3d 696 (7th Cir.\n\n\n2\n When a statute implicates activities protected by the First Amendment,\nthere is a special concern that free speech and expression not be chilled. See\nBroadrick v. Oklahoma, 413 U.S. 601, 611–12, 93 S. Ct. 2908, 2915–16 (1973).\n\fNo. 18-1343 7\n\n2012), abrogated on other grounds by Johnson v. United States, 135\nS. Ct. 2551 (2015), the common thread uniting these cases with\nfacial challenges in the First Amendment context appears to be\na concern (or at least a colorable contention) that the chal-\nlenged statute “simply has no core” and lacks “any ascertain-\nable standard for inclusion and exclusion, ”id. at 703 (quoting\nSmith v. Goguen, 415 U.S. 566, 578, 94 S. Ct. 1242, 1249 (1974)).\nSuch a standardless statute poses a trap for the person acting\nin good faith, who is given no guidepost by which he can\ndivine what sort of conduct is prohibited. See Colautti v.\nFranklin, 439 U.S. 379, 395, 99 S. Ct. 675, 685 (1979), overruled in\npart on other grounds, Webster v. Reproductive Health Servs., 492\nU.S. 490, 109 S. Ct. 3040 (1989). The concern is heightened\nwhen the statute contains no mens rea requirement, Colautti,\n439 U.S. at 395, 99 S. Ct. at 685–86, and the uncertainty as to\nexactly what is proscribed “threatens to inhibit the exercise of\nconstitutionally protected rights,” id. at 391, 99 S. Ct. at 683. See\nalso Morales, 527 U.S. at 55, 119 S. Ct. at 1858.\n The statutory prohibition at issue here does not present\nsuch concerns. True enough, section 922(g)(3) does implicate\nCook’s Second Amendment right to possess a gun. But the\nprohibition is not a strict liability offense requiring no mens rea,\nas in Colautti. By virtue of the separate penalties provision\nfound in 18 U.S.C. § 924(a)(2), a violation of section 922(g)(3)\nmust be knowing – that is, the defendant must have knowl-\nedge of the facts that constitute the offense. See Holder, 561 U.S.\nat 21, 130 S. Ct. at 2720 (“the knowledge requirement of the\nstatute further reduces any potential for vagueness, as we have\nheld with respect to other statutes containing a similar require-\nment”) (collecting cases); United States v. Johnson, 911 F.3d 849,\n\f8 No. 18-1343\n\n853 (7th Cir. 2018) (word “knowingly” cures any potential\nvagueness in challenged condition of supervised release)\n(citing Screws v. United States, 325 U.S. 91, 102, 65 S. Ct. 1031,\n1036 (1945)). More importantly, there is, as our decision in\nUnited States v. Yancey, 621 F.3d 681 (7th Cir. 2010) (per curiam)\nmakes clear, a readily appreciable core of conduct prohibited\nby the statute.\n Yancey construes the term “unlawful user,” as used in\nsection 922(g)(3), to mean one who regularly or habitually\ningests controlled substances in a manner other than as\nprescribed by a physician. Id. at 682. Our opinion adds that\nsuch use must be contemporaneous with the defendant’s\npossession of a gun. Id. at 687 (collecting cases); see also United\nStates v. Grap, 403 F.3d 439, 446 (7th Cir. 2005) (adopting same\ncontemporaneity requirement for purposes of U.S.S.G.\n§ 2K2.1(a)(6), which specifies the base offense level for\n“prohibited person” convicted of firearms offense) (collecting\ncases). We rendered this interpretation of section 922(g)(3) in\nthe course of rejecting a Second Amendment challenge to the\nstatute. Noting the well-established link between chronic drug\nuse and violence, we concluded that section 922(g)(3)’s ban on\ngun possession by those who regularly engage in illegal drug\nuse was substantially related to the important government\ninterest in preventing violent crime. 621 F.3d at 686–87. We\nmust take into account Yancey’s gloss on the statute in evaluat-\ning Cook’s vagueness claim. See Skilling, 561 U.S. at 405, 130\nS. Ct. at 2929 (“It has long been our practice, … before striking\na federal statute as vague, to consider whether the prescription\nis amenable to a limiting construction.”); Pleasureland Museum,\n\fNo. 18-1343 9\n\nInc. v. Beutter, 288 F.3d 988, 995–96 (7th Cir. 2002); Waldron v.\nMcAtee, 723 F.2d 1348, 1354 (7th Cir. 1983).\n Cook is thus not in a position to claim that the statute is so\nindefinite as to inhibit the legitimate exercise of Second\nAmendment rights. Whatever doubt there might be at the\nmargins as to conduct potentially reached by section 922(g)(3),\nthere can be no doubt as to the core of conduct that the statute\n(as construed by Yancey) proscribes: the possession of a firearm\nby an individual engaged in the regular, non-prescribed use of\na controlled substance. Indeed, it would appear that Cook’s\nconduct—possession of a firearm in the midst of a nearly ten-\nyear period of daily marijuana use—epitomizes that core,\nwhich may explain why Cook is so keen to challenge the\nstatute on its face rather than as applied.\n Cook nonetheless suggests that the Supreme Court’s recent\ndecision in Johnson authorizes his facial vagueness challenge,\nregardless of whether the statute is vague as applied to his\nparticular conduct. Johnson declared the (now defunct) residual\nclause of the Armed Career Criminal Act (“ACCA”) to be\nimpermissibly vague without requiring the defendant to first\nshow that the clause was vague as applied to him. 135 S. Ct. at\n2563. The ACCA specifies an enhanced sentence of 15 years to\nlife for one convicted of a firearms offense if the defendant has\nthree or more prior convictions for either a “serious drug\noffense” or a “violent felony.” 18 U.S.C. § 924(e)(1). As relevant\nhere, the statute defines “violent felony” to mean a crime\npunishable by a year or more in prison which “is burglary,\narson, or extortion, involves use of explosives, or otherwise\ninvolves conduct that presents a serious potential risk of physical\ninjury to another[.]” § 924(e)(2)(B)(ii) (emphasis ours). The Court\n\f10 No. 18-1343\n\npreviously had construed section 924(e)(2)(B)(ii) generally to\nrequire a sentencing court to employ a categorical approach\nfocusing on the generic version of an offense (that is, what the\nelements of the offense required), rather than the defendant’s\nactual conduct, in deciding whether his prior conviction\nqualified as a violent felony. See Taylor v. United States, 495 U.S.\n575, 602, 110 S. Ct. 2143, 2160 (1990). In view of the categorical\ninquiry mandated by Taylor, two aspects of the residual clause\nwe have italicized led the Supreme Court in Johnson to con-\nclude that this clause was impermissibly vague: (1) after\npostulating the archetypal version of the crime, one had to\ndecide how much risk of physical injury was posed by that\nidealized version of the offense; and (2) one also had to\nconsider how much risk of injury was required to render an\noffense violent as compared with the offenses expressly\nidentified in the statute (burglary, arson, extortion, and\noffenses involving the use of explosives). 135 S. Ct. at 2557–58.\nBoth inquiries were plagued by uncertainty, as evidenced by\nboth the Court’s own demonstrated inability in a series of prior\nresidual clause cases to articulate a “principled and objective\nstandard” for identifying crimes that present a serious risk of\nphysical injury, id. at 2558, as well as the “numerous splits\namong the lower federal courts,” where the clause had proved\n“nearly impossible to apply consistently,” id. at 2560 (quoting\nChambers v. United States, 555 U.S. 122, 133, 129 S. Ct. 687, 694\n(2009) (Alito, J., concurring in judgment)). “Nine years’\nexperience trying to derive meaning from the residual clause\nconvinces us that we have embarked upon a failed enterprise,”\nthe Court concluded. “Each of the uncertainties in the residual\nclause may be tolerable in isolation, but ‘their sum makes a\n\fNo. 18-1343 11\n\ntask for us which at best could be only guesswork.’” Id.\n(quoting United States v. Evans, 333 U.S. 483, 495, 68 S. Ct. 634,\n641 (1948)).\n In declaring the residual clause to violate the due process\nclause, the Court expressly rejected the government’s conten-\ntion that an otherwise vague statute is constitutional so long as\n“there is some conduct that clearly falls within the provision’s\ngrasp.” Id. at 2561. While acknowledging that statements in\nsome of its opinions could be read to support such a rule, the\nCourt emphasized that its prior holdings squarely contradicted\nsuch a practice. Id. at 2560–61. Simply because it is possible to\nenvision some factual scenarios that would violate an\nambiguously-worded statute is not enough to rescue that\nstatute from a vagueness challenge, the Court made clear. Id.\nat 2561.\n The Court was also at pains to emphasize, however, that\nsimply because a criminal statute uses qualitative language to\narticulate a liability standard does not mean that the statute is\nimpermissibly vague, especially when the statute under\nscrutiny calls upon the court to apply that standard to a\nconcrete set of facts. Id. at 2561; see also id. at 2558.\n As a general matter, we do not doubt the consti-\n tutionality of laws that call for the application of\n a qualitative standard such as “substantial risk”\n to real-world conduct; “the law is full of in-\n stances where a man’s fate depends on his\n estimating rightly … some matter of degree,”\n Nash v. United States, 229 U.S. 373, 377, 33 S. Ct.\n 780 (1913). The residual clause, however, re-\n\f12 No. 18-1343\n\n quires application of the “serious potential risk”\n standard to an idealized ordinary case of the\n crime. Because “the elements necessary to\n determine the imaginary ideal are uncertain\n both in nature and degree of effect,” this abstract\n inquiry offers significantly less predictability\n than one “[t]hat deals with the actual, not with\n an imaginary condition other than the facts.”\n International Harvester Co. of America v. Kentucky,\n 234 U.S. 216, 223, 34 S. Ct. 853 (1914).\n135 S. Ct. at 2561.\n It is not clear how much Johnson—and the Court’s follow-on\ndecision last term in Sessions v. Dimaya, 138 S. Ct. 1204 (2018),\nwhich invalidated similar language in the Immigration and\nNationality Act—actually expand the universe of litigants who\nmay mount a facial challenge to a statute they believe is vague.\nNot surprisingly, Cook contends that Johnson permits any\ndefendant who can postulate doubts as to what particular\nconduct a criminal statute does or does not reach to pursue a\nfacial challenge to that statute, without having to show that\nthere is any real question as to whether his own conduct is\nproscribed. It is true that Johnson puts to rest the notion—found\nin any number of pre-Johnson cases3—that a litigant must show\n\n\n3\n See, e.g., United States v. Salerno, 481 U.S. 739, 745, 107 S. Ct. 2095, 2100\n(1987) (“A facial challenge to a legislative Act is, of course, the most difficult\nchallenge to mount successfully, since the challenger must establish that no\nset of circumstances exists under which the Act would be valid.”); Johnson,\n135 S. Ct. at 2574, 2581 (Alito, J., dissenting); Hegwood v. City of Eau Claire,\n (continued...)\n\fNo. 18-1343 13\n\nthat the statute in question is vague in all of its applications in\norder to successfully mount a facial challenge. 135 S. Ct. at\n2561. And, as we have mentioned, Johnson likewise rejects the\nnotion that simply because one can point to some conduct that\nthe statute undoubtedly would reach is alone sufficient to save\nit from a vagueness challenge. Id. So Cook has those aspects of\nJohnson going for him. But so much of the Court’s analysis in\nJohnson deals with a statute that is in key respects sui generis. In\nparticular, it was the categorical approach called for by the\nACCA’s residual clause—requiring courts to look not at the\nactual conduct underlying the defendant’s prior conviction but\nrather at the archetypal version of the offense and then to\nconsider whether the risk of injury posed by that version was\nsufficient to render the crime violent—which the court found\nto be particularly vexing. Id. at 2557–58. Assessing the degree\nof risk posed by an idealized “typical” version of an offense\nwas significantly different, as the Court emphasized, from\nlooking at the risks posed by a set of actual, concrete facts. Id.\nat 2558; see also Dimaya, 138 S. Ct. at 1214–16.\n Cook’s appeal, by contrast, presents a much more routine\nvagueness challenge that highlights some imprecision in the\nstatutory language and posits uncertainty as to whether the\nstatute might apply to certain hypothetical facts. But section\n922(g)(3) does not call for the court to engage in any abstract\nanalysis; it calls on the court to apply the statutory prohibition\n\n\n3\n (...continued)\n676 F.3d 600, 604 (7th Cir. 2012); Sherman ex rel. Sherman v. Koch, 623 F.3d\n501, 520 (7th Cir. 2010); Schor v. City of Chicago, 576 F.3d 775, 781 (7th Cir.\n2009).\n\f14 No. 18-1343\n\nto a defendant’s real-world conduct. See United States v.\nDouglas, 907 F.3d 1, 11, 14 (1st Cir. 2018), pet’n for cert. filed, No.\n18-7331 (U.S. Jan. 7, 2019); Ovalles v. United States, 905 F.3d\n1231, 1233–34, 1252 (11th Cir. 2018) (en banc); United States v.\nBarrett, 903 F.3d 166, 178–79, 182 (2d Cir. 2018), pet’n for cert.\nfiled, No. 18-6985 (U.S. Dec. 3, 2018); United States v. Larson,\n— F. App’x —, 2018 WL 4203470, at *2 (4th Cir. Sept. 4, 2018)\n(per curiam) (unpublished). Moreover, there is, as we have\ndiscussed, a readily appreciable core of conduct that the statute\nreaches: If one regularly uses marijuana or another controlled\nsubstance other than as directed by a physician, he may not\npossess a firearm so long as the use persists. Consequently,\ncitizens who wish to exercise their Second Amendment rights\nand law enforcement officials alike have reasonable notice of\nwhat is prohibited. This is not a “hopelessly indeterminate”\nstatute that leaves everyone to guess what conduct is legal and\nwhat conduct is proscribed.4 The statute, as construed by\n\n\n4\n We recognize that a liability standard turning on the regularity of a\nparticular activity can in some instances present a vagueness problem. See\nWhatley v. Zatecky, 833 F.3d 762 (7th Cir. 2016) (finding impermissibly vague\nstatute specifying enhanced sentence for individual possessing controlled\nsubstance within 1000 feet of “youth program center,” defined as any\nbuilding that provides youth-oriented programs or services “ on a regular\nbasis”). In contrast to Whatley, the statute at issue here is not a strict-liability\nprovision, and one’s liability under section 922(g)(3) turns on the regularity\nof one’s own conduct rather than the activity occurring in a building that\nmay exhibit no indicia of what programs and services are provided therein\nand how often. One who uses a controlled substance necessarily knows\nhow often he does so. And whatever doubt there might be as to when one’s\ndrug use becomes regular, Cook as a daily user of marijuana over the\n (continued...)\n\fNo. 18-1343 15\n\nYancey, does incorporate a qualitative liability standard, and\none can posit, as Cook does, hypothetical scenarios which\npresent close questions as to whether an individual’s use of a\ncontrolled substance is unlawful, whether it qualifies as\nregular and ongoing, and/or whether that use is sufficiently\ncontemporaneous with his or her possession of a firearm. But\nin contrast with the residual clause, there is no judicial history\nof courts struggling to appreciate what particular conduct\nCongress meant to reach with section 922(g)(3) or to apply the\nstatutory terms to varying sets of facts. The uniform rejection\nof as-applied vagueness challenges to section 922(g)(3) by itself\nsuggests that it is not anything like the sort of problematic\nstatute the Court confronted in Johnson. See United States v.\nBramer, 832 F.3d 908, 909–10 (8th Cir. 2016) (per curiam); United\nStates v. Edwards, 540 F.3d 1156, 1162 (10th Cir. 2008); United\nStates v. Patterson, 431 F.3d 832, 836 (5th Cir. 2005); United States\nv. Purdy, supra n.4, 264 F.3d at 812. And simply because it may\nsometimes be difficult to determine if an individual’s drug use\nmeets section 922(g)(3)’s standard for liability does not signify\nthat the statute is impermissibly vague, given that there is no\ndoubt as to the essence of what the statute forbids: the posses-\nsion of a firearm by one who is engaged in the regular and\nongoing use of a controlled substance other than as prescribed\n\n\n\n4\n (...continued)\ncourse of a decade cannot reasonably claim to have been in doubt as to\nwhether his use qualified as regular. See United States v. Purdy, 264 F.3d 809,\n812 (9th Cir. 2001) (“Purdy’s [regular, years-long] drug use … was sufficient\nto put him on notice that he fell within the statutory definition of ‘unlawful\n[drug] user.’”).\n\f16 No. 18-1343\n\nby a doctor. See Williams, supra, 553 U.S. at 306, 128 S. Ct. at\n1846.\n For these reasons, we are not convinced that Cook is\nentitled to mount a facial vagueness challenge to section\n922(g)(3). Johnson did not alter the general rule that a defendant\nwhose conduct is clearly prohibited by a statute cannot be the\none to make a facial vagueness challenge. United States v.\nWestbrooks, 858 F.3d 317, 325–26 (5th Cir. 2017) (collecting\ncases), cert. granted & judgment vacated on other grounds, 138\nS. Ct. 1323 (2018). Cook’s conduct, if anything, undoubtedly\nfalls within the obvious core of conduct proscribed by the\nstatute. Per his statement at the police station, he had been\nusing marijuana daily for almost ten years and he had smoked\ntwo blunts on the day of his arrest; and the police officers who\nstopped his vehicle and took him into custody noted a strong\nodor of marijuana emanating from the interior and that Cook\nhimself reeked of the substance. These facts no doubt explain\nwhy Cook has declined to pursue an as-applied vagueness\nchallenge to section 922(g)(3): it would surely fail. See United\nStates v. Jackson, 280 F.3d 403, 406 (4th Cir. 2002) (addressing\nfacts nearly identical to those presented here) (“While we do\nnot doubt that the exact reach of the statute is not easy to\ndefine, we agree with the government that this is not a border-\nline case. … Given the evidence, Jackson violated the plain\nmeaning of the statute.”).\n Cook’s attempt to challenge section 922(g)(3) as facially\nvague fails for all of the reasons we have discussed, and\nbecause he asserts no as-applied challenge to the statute, we\nreject his contention that the statute is inconsistent with his due\nprocess rights.\n\fNo. 18-1343 17\n\nB. Second Amendment\n Cook agrees that Yancey forecloses this challenge to section\n922(g)(3). Yancey, as noted, held that there was a substantial\nrelationship between the government’s legitimate interest in\npreventing violent crime and the statute’s ban on gun posses-\nsion by unlawful drug users. 621 F.3d at 683–87. Although\nCook asserts that Yancey was wrongly decided, he offers us no\nreal reason to reconsider our precedent on this point. As the\nlaw is settled in this circuit, we reject his Second Amendment\nobjection to the statute.\nC. Jury Instruction\n Cook argues finally that the district court did not properly\ninstruct the jury as to the elements of his offense. As we noted\nin our summary of the proceedings below, the court advised\nthe jury that “[t]he defendant was an unlawful user of mari-\njuana if he used marijuana on a regular and ongoing basis for\na period of time that began before and continued through the\ndate of the offense.” R. 44 at 8; R. 56 at 70–71 (emphasis\nomitted). The court added that Cook need not have been under\nthe influence of marijuana when he possessed a firearm, nor\nwas the government required to prove that he used marijuana\non any particular date or within a specified number of days of\nthe offense. (Recall that Cook had rejected the government’s\noffer to add language that use of marijuana on a single occa-\nsion was insufficient to establish unlawful drug use.) Cook\ncontends that the instruction as given was erroneous because\n(a) it was not grounded in the language of section 922(g)(3);\n(b) it was not consistent with Yancey’s holding as to who\nconstitutes an unlawful drug user; (c) the instruction was\n\f18 No. 18-1343\n\ninternally inconsistent; and (d) it foreclosed the defense from\nurging the jurors to use their own understanding of “unlawful\nuser” in assessing Cook’s conduct. None of these arguments is\npersuasive.\n The instruction was grounded in the language of the statute\nin that it endeavored, consistent with the case law regarding\nsection 922(g)(3), to define for the jury who constitutes an\nunlawful drug user. The statute itself does not define “unlaw-\nful drug user.” As discussed, this court in Yancey concluded\nthat an unlawful drug user is one who regularly uses a\ncontrolled substance, other than as prescribed by a physician,\ncontemporaneously with possessing a firearm. 621 F.3d at 682,\n687. In doing so, we acted in accord with other circuits which\nhave concluded that the statute’s reach is limited by two key\nrequirements: (1) regularity of drug use (2) that is sufficiently\ncontemporaneous with the possession of a firearm. See id.\n(collecting cases). That these are limits imposed on the offense\nby the judiciary rather than the face of the statute does not\nrender them invalid. See United States v. Lanier, 520 U.S. 259,\n266, 117 S. Ct. 1219, 1225 (1997) (“clarity at the requisite level\nmay be supplied by judicial gloss on an otherwise uncertain\nstatute”) (collecting cases); Skilling, supra, 561 U.S. at 405–06,\n130 S. Ct. at 2929–30 (before striking down a federal statute as\nvague courts will first consider if it is subject to a limiting\nconstruction that avoids vagueness); id. at 409 n.43, 130 S. Ct.\nat 2931 n.43 (“cases ‘paring down’ federal statutes to avoid\nconstitutional shoals are legion”). The district court appropri-\nately looked to Yancey’s gloss on the statute in defining\n“unlawful drug user” for the jury.\n\fNo. 18-1343 19\n\n Nor was the instruction inconsistent with Yancey. Cook\nsuggests that Yancey defined “unlawful user” of drugs to mean\neither one who is addicted to controlled substances or one who\nhas simply used them within the past year, and that the\nreference to “regular and ongoing” drug use in the district\ncourt’s instruction is both broader than addiction and narrower\nthan use within the past year. But Cook’s reading of Yancey is\nnot a faithful reading of the court’s opinion. The opinion makes\nclear that section 922(g)(3) requires regular or habitual drug use,\n621 F.3d at 682, that is contemporaneous with the possession\nof a firearm, id. at 687. Nowhere in our decision did we suggest\nthat a single or occasional, irregular use of a controlled\nsubstance within a year of the gun possession was sufficient to\nmeet these criteria. Nor did we indicate that regular or habitual\nuse necessarily equates with addiction. The instruction given\nhere was fully consistent with Yancey’s requirements: the term\n“regular” connotes a pattern of repeated drug use (be it\nvolitional or as the result of an addiction), and “ongoing”\nconnotes the requisite temporal nexus with possession of the\ngun.\n The instruction was also internally consistent. Cook’s\ncontention to the contrary focuses on the fact that the instruc-\ntion advised the jury, on the one hand, that his marijuana use\nmust have “beg[u]n before and continued through the date of\nthe charged offense” but, on the other hand, that he need not\nhave “used marijuana on any particular day, or within a\ncertain number of days of when he committed the charged\noffense.” These portions of the instruction were not at odds\nwith one another. Consistent with Yancey’s requirement that\nthe defendant’s drug use be contemporaneous with his\n\f20 No. 18-1343\n\npossession of a firearm, the court appropriately advised the\njury that Cook’s marijuana use must have been “ongoing” at\nthe time he was discovered in possession of a gun. But the\nrequirement that the drug use and firearm possession be\ncontemporaneous does not literally mean that the defendant\nmust have been ingesting (or under the influence of) a con-\ntrolled substance at the same time as he possessed the gun. The\nstatute, after all, prohibits firearm possession by a drug user,\nnot simply possession during drug use. So long as the defen-\ndant was still engaged in the regular use of a drug at the time\nof his firearm possession, it is not necessary to show that he\nused the drug on the day of his firearm possession, the day\nbefore, or within any particular number of days of the posses-\nsion. Thus, a person who routinely uses marijuana on week-\nends may violate section 922(g)(3) by possessing a firearm on\na Tuesday or Wednesday, because his possession of the gun is\ncontemporaneous with his ongoing pattern of drug use. The\ninstruction appropriately and coherently advised the jury on\nthese points.\n Finally, we are no more persuaded than the district judge\nwas that the instruction should have left it to the jurors to\nconsult their own collective sense of who constitutes an\n“unlawful user” of marijuana. Yancey establishes the relevant\nparameters on this point, and the district court was required to\nconvey those parameters to the jury to guide its decisionmak-\ning, which Judge Peterson did admirably.\n That said, our holding should not be construed to foreclose\nalternate versions of the “unlawful user” instruction. The Sixth\nand Eighth Circuits, for example, have promulgated instruc-\ntions with slightly different language. See MANUAL OF MODEL\n\fNo. 18-1343 21\n\nCRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT COURTS OF THE\nEIGHTH CIRCUIT § 6.18.922B, at 291–94 (2017); United States v.\nBurchard, 580 F.3d 341, 352 (6th Cir. 2009). Although the\narguments in this court and in the court below reflect some\nanticipation that we might settle upon our own preferred\nversion of the instruction in this appeal, we respectfully decline\nto do so. As the foregoing discussion makes clear, we find no\nfault with the particular instruction that Judge Peterson gave\nto the jury, and we need not go farther than that to resolve\nCook’s appeal. The task of drafting a model instruction, we\nbelieve, is better left to our Circuit’s Pattern Criminal Jury\nInstruction Committee, which has a membership that includes\npractitioners as well as judges and which can solicit and\nincorporate comments on any proposed instruction from the\nbar at large. We shall invite the Committee to consider a\npattern instruction for a section 922(g)(3) charge, including but\nnot limited to the issue of who constitutes an “unlawful user”\nof a controlled substance for purposes of this statute.\n III.\n For all of the foregoing reasons, we AFFIRM Cook’s\nconviction. We commend everyone involved in the briefing\nand arguing of this case, along with Judge Peterson and\nMagistrate Judge Crocker for their thorough and careful\nhandling of the case below. Their dedication and hard work\nhave greatly aided this court’s deliberation and resolution of\nthe appeal.\n[END_CASE]", "role": "user" } ]
4,585,316	UNITED STATES of America, Plaintiff-Appellee, v. Derrick PHILLIPS, Defendant-Appellant.	United States v. Derrick Phillips	2019-01-28	18-1372	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Wood, Easterbrook, Kanne", "parties": "", "opinions": [{"author": "Diane Pamela Wood", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-1372\nUNITED STATES OF AMERICA,\n Plaintiff-Appellee,\n v.\n\nDERRICK PHILLIPS,\n Defendant-Appellant.\n ____________________\n\n Appeal from the United States District Court for the\n Central District of Illinois.\n No. 03-CR-30019—Sue E. Myerscough, Judge.\n ____________________\n\n ARGUED NOVEMBER 6, 2018 — DECIDED JANUARY 28, 2019\n ____________________\n\n Before WOOD, Chief Judge, and EASTERBROOK and KANNE,\nCircuit Judges.\n WOOD, Chief Judge. In this appeal, Derrick Phillips is chal-\nlenging the district court’s decision to revoke his supervised\nrelease. He argues that the drug evidence used against him\nwas the fruit of an unconstitutional search and should have\nbeen excluded. Guided by the Supreme Court’s opinion in\nPennsylvania Board of Probation and Parole v. Scott, 524 U.S. 357\n(1998), which held that the exclusionary rule does not apply\n\f2 No. 18-1372\n\nto state parole-revocation hearings, the district court ruled\nthat the exclusionary rule was similarly inappropriate for su-\npervised-release-revocation hearings. The court then re-\nviewed the evidence presented by the government and con-\ncluded that Phillips’s supervised release should be revoked\nand that he should be sentenced to 36 months’ imprisonment.\nBefore this court, Phillips contests only the district court’s rul-\ning on the exclusionary rule issue. We affirm.\n In 2010 Phillips began serving an eight-year term of super-\nvised release stemming from a 2003 conviction for possession\nof cocaine base with intent to distribute. Phillips completed\nseven years of his term largely without incident. But on Octo-\nber 4, 2017, police officers in Quincy, Illinois, stopped him as\nhe drove his car out of the parking lot of the town’s Amtrak\nstation. After a dog alerted the officers that drugs might be\npresent in the car, they conducted a search, discovered a pack-\nage containing approximately 196 grams of heroin, and ar-\nrested Phillips for possession with intent to distribute. The\nnext month, Phillips’s probation officer filed a petition to re-\nvoke his supervised release based on his violation of the con-\ndition that he not commit any crimes while on release.\n In the district court, Phillips moved to suppress the evi-\ndence seized from his car. He alleged that the putative traffic\nviolation that served as the basis of the stop was not, in fact, a\nviolation of any traffic law at all. Accordingly, he argued, the\npolice lacked probable cause for the stop and the resulting ev-\nidence should be suppressed. The district court did not reach\nthe merits of this argument because it concluded that the rea-\nsoning in Scott left no room for the application of the exclu-\nsionary rule to supervised-release-revocation hearings. We\nagree with that ruling.\n\fNo. 18-1372 3\n\n As the district court noted, two of the Supreme Court’s ra-\ntionales for declining to extend the exclusionary rule to the\nparole context “equally appl[y] to hearings for the revocation\nof supervised release.” First, the Court expressed concern in\nScott that the exclusionary rule would “alter the traditionally\nflexible, administrative nature of parole revocation proceed-\nings.” 524 U.S. at 364. Phillips contends that certain features\nof hearings for the revocation of supervised release make\nthem more adversarial and trial-like than is true for parole\nhearings. These include the statutory right to counsel that de-\nfendants enjoy pursuant to Federal Rule of Criminal Proce-\ndure 32.1 and the requirement that defendants make specific\nobjections in order to preserve them for appellate review, see\nUnited States v. Raney, 797 F.3d 454, 462 (7th Cir. 2015).\n We can assume that Phillips is correct to observe that the\nSupreme Court’s description of parole revocation hearings as\n“nonadversarial,” Scott, 524 U.S. at 366, is an imperfect fit for\nsupervised-release-revocation hearings (and for that matter,\nparole hearings). But the Court was well aware that the pa-\nrole-revocation procedures are a part of the overall criminal\njustice process. And there is no escaping the fact that a hear-\ning to determine whether supervised release should be re-\nvoked is substantially closer in form and substance to a hear-\ning focusing on parole revocation than it is to a criminal trial.\nThe Court emphasized in Scott that it has “repeatedly de-\nclined to extend the exclusionary rule to proceedings other\nthan criminal trials.” 524 U.S. at 363. In other non-criminal-\ntrial procedural contexts that have adversarial qualities and\ncarry significant risks for defendants, the Court has found\nthat the exclusionary rule is not worth the “substantial social\ncosts” that would accompany it. Id., quoting United States v.\nLeon, 468 U.S. 897, 907 (1984). See I.N.S. v. Lopez-Mendoza, 468\n\f4 No. 18-1372\n\nU.S. 1032 (1984) (holding the exclusionary rule inapplicable to\ndeportation proceedings); United States v. Janis, 428 U.S. 433\n(1976) (holding the exclusionary rule inapplicable to civil tax\nproceedings). Unless and until the Supreme Court reconsid-\ners this line of cases, we are not free to extend the exclusionary\nrule to hearings for the revocation of supervised release.\n Second, the Scott Court expressed skepticism about the\nlikelihood that the exclusionary rule would provide any\nadded deterrence of unlawful police behavior if it were to be\navailable in parole-revocation hearings, “because application\nof the rule in the criminal trial already provides significant\ndeterrence of unconstitutional searches.” Scott, 524 U.S. at 364.\nPhillips suggests that this is not so in the supervised release\ncontext, given that the government has (and often uses) the\noption to pursue revocation in lieu of a new prosecution. Thus,\nhe argues, the underlying police conduct may go unchal-\nlenged in any forum. But the same option exists for parole-\nrevocation hearings. Statistics indicate that there are more\nthan 750,000 people on state parole, and another 137,000 on\nfederal supervised release. See Probation and Parole in the\nUnited States, 2016, Bureau of Justice Statistics,\nhttps://www.bjs.gov/content/pub/pdf/ppus16.pdf (2016 state\nparole population of 760,392); Post-Conviction Supervision – Ju-\ndicial Business 2017, United States Courts,\nhttp://www.uscourts.gov/statistics-reports/post-conviction-\nsupervision-judicial-business-2016 (2016 federal supervisee\npopulation of 137,410). In both instances, when the reason for\nrevocation is the commission of a new crime, the prosecuting\nauthority has the option to revoke a defendant’s parole or su-\npervised release rather than pursue a new case. If the Su-\npreme Court found the added deterrence benefits insufficient\nto justify the exclusionary rule in a parole hearing, logic\n\fNo. 18-1372 5\n\ncompels the conclusion that the same result must apply for\nsupervised release.\n That is enough to dispose of Phillips’s appeal. We add,\nhowever, that his position would require us seriously to un-\ndermine our own circuit precedent and to break from the uni-\nform consensus of our sister circuits. We have long held that\nthe exclusionary rule does not apply at sentencing. United\nStates v. Brimah, 214 F.3d 854 (7th Cir. 2000). And the Supreme\nCourt has held that in the context of supervised release,\n“postrevocation penalties relate to the original offense,” Johnson\nv. United States, 529 U.S. 694, 701 (2000) (emphasis added). See\nalso United States v. Boultinghouse, 784 F.3d 1163, 1171 (7th Cir.\n2015) (noting that “a revocation proceeding … focuses on the\nmodification of a sentence already imposed and implicates\nthe conditional (rather than absolute) liberty that the defend-\nant enjoys as a result of that sentence”). It is difficult to see\nhow we could continue to find the exclusionary rule inappro-\npriate at the imposition of the initial sentence and yet to apply\nthe rule in downstream hearings aimed at modifying that sen-\ntence.\n Phillips argues that as a practical reality, when judges de-\ncide whether to revoke supervised release and (if so) how\nmuch prison time to impose, they are more focused on the\nnew offense than on the underlying crime of conviction. But\nthey are entitled to take the entire record into account at the\ntime of revocation, not simply the facts as they existed at the\ntime of the original sentence. That appears to be what hap-\npened for Phillips when the judge mentioned the ongoing\n“heroin epidemic” as a justification for her sentence. And the\nfact remains that as a legal matter, the Supreme Court has\nmade crystal clear that revocation relates back to, and is a\n\f6 No. 18-1372\n\nfunction of, the sentence for the original offense. Ruling for\nPhillips would therefore call Brimah into question. As Phillips\nacknowledges, his position would also put us in direct con-\nflict with every other court of appeals to consider the ques-\ntion. See United States v. Hebert, 201 F.3d 1103, 1104 (9th Cir.\n2000) (holding exclusionary rule inapplicable to supervised\nrelease); United States v. Armstrong, 187 F.3d 392, 394 (4th Cir.\n1999) (same); see also United States v. Charles, 531 F.3d 637, 640\n(8th Cir. 2008) (holding the exclusionary rule inapplicable to\nsupervised release in the absence of a showing of police har-\nassment); United States v. Montez, 952 F.2d 854, 857 (5th Cir.\n1992) (same). We decline to create such a split, nor need we\naddress the exceptions contemplated by the Fifth and Eighth\nCircuits, as there has been no showing of harassment in this\ncase.\n Phillips suggested at oral argument that the main purpose\nof this appeal was to preserve this issue for Supreme Court\nreview. That he has done. But until the Supreme Court ad-\ndresses the point, his arguments in this court are foreclosed.\nThe judgment of the district court is\n\n\n AFFIRMED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4362569/", "author_raw": "Diane Pamela Wood"}]}	WOOD	EASTERBROOK	KANNE	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4585316/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Derrick PHILLIPS, Defendant-Appellant.\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-28\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-1372\nUNITED STATES OF AMERICA,\n Plaintiff-Appellee,\n v.\n\nDERRICK PHILLIPS,\n Defendant-Appellant.\n ____________________\n\n Appeal from the United States District Court for the\n Central District of Illinois.\n No. 03-CR-30019—Sue E. Myerscough, Judge.\n ____________________\n\n ARGUED NOVEMBER 6, 2018 — DECIDED JANUARY 28, 2019\n ____________________\n\n Before WOOD, Chief Judge, and EASTERBROOK and KANNE,\nCircuit Judges.\n WOOD, Chief Judge. In this appeal, Derrick Phillips is chal-\nlenging the district court’s decision to revoke his supervised\nrelease. He argues that the drug evidence used against him\nwas the fruit of an unconstitutional search and should have\nbeen excluded. Guided by the Supreme Court’s opinion in\nPennsylvania Board of Probation and Parole v. Scott, 524 U.S. 357\n(1998), which held that the exclusionary rule does not apply\n\f2 No. 18-1372\n\nto state parole-revocation hearings, the district court ruled\nthat the exclusionary rule was similarly inappropriate for su-\npervised-release-revocation hearings. The court then re-\nviewed the evidence presented by the government and con-\ncluded that Phillips’s supervised release should be revoked\nand that he should be sentenced to 36 months’ imprisonment.\nBefore this court, Phillips contests only the district court’s rul-\ning on the exclusionary rule issue. We affirm.\n In 2010 Phillips began serving an eight-year term of super-\nvised release stemming from a 2003 conviction for possession\nof cocaine base with intent to distribute. Phillips completed\nseven years of his term largely without incident. But on Octo-\nber 4, 2017, police officers in Quincy, Illinois, stopped him as\nhe drove his car out of the parking lot of the town’s Amtrak\nstation. After a dog alerted the officers that drugs might be\npresent in the car, they conducted a search, discovered a pack-\nage containing approximately 196 grams of heroin, and ar-\nrested Phillips for possession with intent to distribute. The\nnext month, Phillips’s probation officer filed a petition to re-\nvoke his supervised release based on his violation of the con-\ndition that he not commit any crimes while on release.\n In the district court, Phillips moved to suppress the evi-\ndence seized from his car. He alleged that the putative traffic\nviolation that served as the basis of the stop was not, in fact, a\nviolation of any traffic law at all. Accordingly, he argued, the\npolice lacked probable cause for the stop and the resulting ev-\nidence should be suppressed. The district court did not reach\nthe merits of this argument because it concluded that the rea-\nsoning in Scott left no room for the application of the exclu-\nsionary rule to supervised-release-revocation hearings. We\nagree with that ruling.\n\fNo. 18-1372 3\n\n As the district court noted, two of the Supreme Court’s ra-\ntionales for declining to extend the exclusionary rule to the\nparole context “equally appl[y] to hearings for the revocation\nof supervised release.” First, the Court expressed concern in\nScott that the exclusionary rule would “alter the traditionally\nflexible, administrative nature of parole revocation proceed-\nings.” 524 U.S. at 364. Phillips contends that certain features\nof hearings for the revocation of supervised release make\nthem more adversarial and trial-like than is true for parole\nhearings. These include the statutory right to counsel that de-\nfendants enjoy pursuant to Federal Rule of Criminal Proce-\ndure 32.1 and the requirement that defendants make specific\nobjections in order to preserve them for appellate review, see\nUnited States v. Raney, 797 F.3d 454, 462 (7th Cir. 2015).\n We can assume that Phillips is correct to observe that the\nSupreme Court’s description of parole revocation hearings as\n“nonadversarial,” Scott, 524 U.S. at 366, is an imperfect fit for\nsupervised-release-revocation hearings (and for that matter,\nparole hearings). But the Court was well aware that the pa-\nrole-revocation procedures are a part of the overall criminal\njustice process. And there is no escaping the fact that a hear-\ning to determine whether supervised release should be re-\nvoked is substantially closer in form and substance to a hear-\ning focusing on parole revocation than it is to a criminal trial.\nThe Court emphasized in Scott that it has “repeatedly de-\nclined to extend the exclusionary rule to proceedings other\nthan criminal trials.” 524 U.S. at 363. In other non-criminal-\ntrial procedural contexts that have adversarial qualities and\ncarry significant risks for defendants, the Court has found\nthat the exclusionary rule is not worth the “substantial social\ncosts” that would accompany it. Id., quoting United States v.\nLeon, 468 U.S. 897, 907 (1984). See I.N.S. v. Lopez-Mendoza, 468\n\f4 No. 18-1372\n\nU.S. 1032 (1984) (holding the exclusionary rule inapplicable to\ndeportation proceedings); United States v. Janis, 428 U.S. 433\n(1976) (holding the exclusionary rule inapplicable to civil tax\nproceedings). Unless and until the Supreme Court reconsid-\ners this line of cases, we are not free to extend the exclusionary\nrule to hearings for the revocation of supervised release.\n Second, the Scott Court expressed skepticism about the\nlikelihood that the exclusionary rule would provide any\nadded deterrence of unlawful police behavior if it were to be\navailable in parole-revocation hearings, “because application\nof the rule in the criminal trial already provides significant\ndeterrence of unconstitutional searches.” Scott, 524 U.S. at 364.\nPhillips suggests that this is not so in the supervised release\ncontext, given that the government has (and often uses) the\noption to pursue revocation in lieu of a new prosecution. Thus,\nhe argues, the underlying police conduct may go unchal-\nlenged in any forum. But the same option exists for parole-\nrevocation hearings. Statistics indicate that there are more\nthan 750,000 people on state parole, and another 137,000 on\nfederal supervised release. See Probation and Parole in the\nUnited States, 2016, Bureau of Justice Statistics,\nhttps://www.bjs.gov/content/pub/pdf/ppus16.pdf (2016 state\nparole population of 760,392); Post-Conviction Supervision – Ju-\ndicial Business 2017, United States Courts,\nhttp://www.uscourts.gov/statistics-reports/post-conviction-\nsupervision-judicial-business-2016 (2016 federal supervisee\npopulation of 137,410). In both instances, when the reason for\nrevocation is the commission of a new crime, the prosecuting\nauthority has the option to revoke a defendant’s parole or su-\npervised release rather than pursue a new case. If the Su-\npreme Court found the added deterrence benefits insufficient\nto justify the exclusionary rule in a parole hearing, logic\n\fNo. 18-1372 5\n\ncompels the conclusion that the same result must apply for\nsupervised release.\n That is enough to dispose of Phillips’s appeal. We add,\nhowever, that his position would require us seriously to un-\ndermine our own circuit precedent and to break from the uni-\nform consensus of our sister circuits. We have long held that\nthe exclusionary rule does not apply at sentencing. United\nStates v. Brimah, 214 F.3d 854 (7th Cir. 2000). And the Supreme\nCourt has held that in the context of supervised release,\n“postrevocation penalties relate to the original offense,” Johnson\nv. United States, 529 U.S. 694, 701 (2000) (emphasis added). See\nalso United States v. Boultinghouse, 784 F.3d 1163, 1171 (7th Cir.\n2015) (noting that “a revocation proceeding … focuses on the\nmodification of a sentence already imposed and implicates\nthe conditional (rather than absolute) liberty that the defend-\nant enjoys as a result of that sentence”). It is difficult to see\nhow we could continue to find the exclusionary rule inappro-\npriate at the imposition of the initial sentence and yet to apply\nthe rule in downstream hearings aimed at modifying that sen-\ntence.\n Phillips argues that as a practical reality, when judges de-\ncide whether to revoke supervised release and (if so) how\nmuch prison time to impose, they are more focused on the\nnew offense than on the underlying crime of conviction. But\nthey are entitled to take the entire record into account at the\ntime of revocation, not simply the facts as they existed at the\ntime of the original sentence. That appears to be what hap-\npened for Phillips when the judge mentioned the ongoing\n“heroin epidemic” as a justification for her sentence. And the\nfact remains that as a legal matter, the Supreme Court has\nmade crystal clear that revocation relates back to, and is a\n\f6 No. 18-1372\n\nfunction of, the sentence for the original offense. Ruling for\nPhillips would therefore call Brimah into question. As Phillips\nacknowledges, his position would also put us in direct con-\nflict with every other court of appeals to consider the ques-\ntion. See United States v. Hebert, 201 F.3d 1103, 1104 (9th Cir.\n2000) (holding exclusionary rule inapplicable to supervised\nrelease); United States v. Armstrong, 187 F.3d 392, 394 (4th Cir.\n1999) (same); see also United States v. Charles, 531 F.3d 637, 640\n(8th Cir. 2008) (holding the exclusionary rule inapplicable to\nsupervised release in the absence of a showing of police har-\nassment); United States v. Montez, 952 F.2d 854, 857 (5th Cir.\n1992) (same). We decline to create such a split, nor need we\naddress the exceptions contemplated by the Fifth and Eighth\nCircuits, as there has been no showing of harassment in this\ncase.\n Phillips suggested at oral argument that the main purpose\nof this appeal was to preserve this issue for Supreme Court\nreview. That he has done. But until the Supreme Court ad-\ndresses the point, his arguments in this court are foreclosed.\nThe judgment of the district court is\n\n\n AFFIRMED.\n[END_CASE]", "role": "user" } ]
4,585,317		United States v. Blair Cook	2019-01-28	18-1343	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before FLAUM, MANION, and ROVNER, Circuit Judges.", "parties": "", "opinions": [{"author": "Ilana Kara Diamond Rovner", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\nNo. 18-1343\n\nUNITED STATES OF AMERICA,\n Plaintiff-Appellee,\n\n v.\n\n\nBLAIR COOK,\n Defendant-Appellant.\n\n\n Appeal from the United States District Court for the\n Western District of Wisconsin.\n No. 3:17-cr-00048-001 — James D. Peterson, Chief Judge.\n\n\n\n ARGUED SEPTEMBER 13, 2018 — DECIDED JANUARY 28, 2019\n\n\n Before FLAUM, MANION, and ROVNER, Circuit Judges.\n ROVNER, Circuit Judge. A jury convicted Blair Cook of being\nan unlawful user of a controlled substance (marijuana) in\npossession of a firearm. See 18 U.S.C. § 922(g)(3). Cook appeals\nhis conviction, contending that the statute underlying his\nconviction is facially vague, that it improperly limits his\nSecond Amendment right to possess a firearm, and that the\n\f2 No. 18-1343\n\ndistrict court did not properly instruct the jury as to who\nconstitutes an unlawful user of a controlled substance. We\naffirm Cook’s conviction.\n I.\n On May 25, 2017, officers of the Madison, Wisconsin police\ndepartment conducted a traffic stop of the car that Cook was\ndriving. When officers approached the car and spoke with\nCook, they noticed a strong odor of marijuana emanating from\nthe car. Apart from the possibility that Cook was driving under\nthe influence of marijuana, Cook was also driving on a\nsuspended license and without a license plate on the front of\nhis vehicle, so the officers decided to detain him and ordered\nhim to step out of the vehicle. Officer Matthew Wentzel\nremoved a loaded, .40-caliber Glock Model 23 pistol from a\nholster under Cook’s shoulder. The gun had an extended 22-\nround capacity magazine with 19 bullets remaining. Cook was\ntransported to the police station for further questioning.\nDuring a recorded interview at the station, Cook acknowl-\nedged to Wentzel that he had used marijuana almost daily for\nnearly ten years (since the age of 14), that he did so because\nmarijuana calmed him down, and that he had smoked two\n“blunts” earlier that day.1 On prodding from the police, Cook\nultimately produced a small packet from his groin area\ncontaining a half ounce of marijuana.\n Cook had purchased the firearm from Max Creek Outdoors\nin Oregon, Wisconsin on April 2, 2017. At the time of the\n\n\n1\n “Blunt” is a street term for a cigar from which the tobacco has been\nremoved and replaced with marijuana.\n\fNo. 18-1343 3\n\npurchase, he was required to complete a Firearms Transaction\nRecord Form 4473 promulgated by the Bureau of Alcohol,\nTobacco, Firearms, and Explosives (“ATF”). On that form,\nCook answered “No” to the question, “Are you an unlawful\nuser of, or addicted to, marijuana or any depressant, stimulant,\nnarcotic drug, or any other controlled substance?” Directly\nunder that question the reader of the form was admonished,\n“Warning: The use or possession of marijuana remains\nunlawful under Federal law regardless of whether it has been\nlegalized or decriminalized for medical or recreational pur-\nposes in the state where you reside.”\n A grand jury subsequently charged Cook with two of-\nfenses: possession of a firearm and ammunition by an “unlaw-\nful user” of marijuana, in violation of section 922(g)(3), and\nmaking a false statement (that he was not an unlawful user of\nmarijuana) on the ATF form in connection with his purchase of\na firearm and ammunition, in violation of 18 U.S.C.\n§ 924(a)(1)(A).\n Cook moved to dismiss both counts of the indictment on\nthe ground that the term “unlawful user” of a controlled\nsubstance found in sections 922(g)(3) and 924(a)(1)(A) is\nunconstitutionally vague. The district court denied the motion.\nR. 21 at 2–3.\n The district court subsequently gave the following instruc-\ntion to the jury as to who constitutes an “unlawful user” of\nmarijuana:\n The defendant was an unlawful user of mari-\n juana if he used marijuana on a regular and\n ongoing basis for a period of time that began\n\f4 No. 18-1343\n\n before and continued through the date of the\n charged offense. The government is not required\n to prove that the defendant was under the\n influence of marijuana when he filled out the\n Firearms Transaction Record or when he pos-\n sessed the firearm. The government is not re-\n quired to prove that the defendant used mari-\n juana on any particular day, or within a certain\n number of days of when he committed the\n charged offenses.\nR. 44 at 8; R. 56 at 70–71 (emphasis in original). The defense\nrejected the government’s offer to include an additional\nsentence in this instruction advising the jury that a one-time\nuse of marijuana is insufficient to render the defendant an\n“unlawful user” within the meaning of either statute. R. 87 at\n17.\n Following a one-day trial, a jury convicted Cook on the\nsection 922(g)(3) charge but was unable to reach a verdict on\nthe section 924 charge, which the district court dismissed\nwithout prejudice, R. 53. The district court denied Cook’s Rule\n33 motions for a new trial (R. 73) and ordered Cook to serve a\nfour-year term of probation in lieu of any term of imprison-\nment (R. 76).\n II.\n Section 922(g)(3) provides in relevant part that “[i]t shall be\nunlawful for any person … who is an unlawful user of or\naddicted to any controlled substance (as defined in section 102\nof the Controlled Substances Act (21 U.S.C. § 802)) … to …\npossess in or affecting commerce, any firearm or ammunition\n\fNo. 18-1343 5\n\n… .” Marijuana is a Schedule I controlled substance, see 21\nU.S.C. § 812(c)(10), and because the Glock pistol Cook pur-\nchased had previously traveled in interstate commerce (it was\nmanufactured in Smyrna, Georgia), section 922(g)(3) forbade\nCook’s possession of the gun at the time of the May 2017 traffic\nstop provided he qualified as an “unlawful user” of marijuana,\nwhich the jury necessarily found that he did.\n Cook challenges his conviction pursuant to this statute on\nthree grounds: (1) the statute is facially vague as to who\nconstitutes an “unlawful user” of a controlled substance; (2)\nthe statute violates his Second Amendment right to possess a\nfirearm; and (3) the jury instruction defining “unlawful user”\nwas inadequate. For the reasons that follow, we find none of\nthese arguments to be persuasive.\nA. Facial vagueness challenge to section 922(g)(3).\n Cook contends that section 922(g)(3) is vague on its face,\nsuch that his conviction violates the Fifth Amendment’s due\nprocess clause. The void-for-vagueness doctrine requires that\na criminal statute define an offense with sufficient clarity that\nan ordinary person has fair notice of what conduct is prohib-\nited and so as to avoid arbitrary and discriminatory enforce-\nment. See, e.g., Skilling v. United States, 561 U.S. 358, 402–03, 130\nS. Ct. 2896, 2927–28 (2010); United States v. Sylla, 790 F.3d 772,\n774–75 (7th Cir. 2015). “What renders a statute vague is not the\npossibility that it will sometimes be difficult to determine\nwhether the incriminating fact it establishes has been proved;\nbut rather the indeterminacy of precisely what that fact is.”\nUnited States v. Williams, 553 U.S. 285, 306, 128 S. Ct. 1830, 1846\n(2008).\n\f6 No. 18-1343\n\n The general practice, outside of the First Amendment\ncontext,2 has been to consider the purported vagueness of a\nstatute in light of the facts of the particular case—i.e., as\napplied—rather than in the abstract. See, e.g., Maynard v.\nCartwright, 486 U.S. 356, 361, 108 S. Ct. 1853, 1857–58 (1988);\nUnited States v. Johnson, 875 F.3d 360, 370 (7th Cir. 2017). This\nmeans, of course, that a litigant challenging the statute ordi-\nnarily must show that it is vague as applied to him; and if the\nstatute undoubtedly applies to his conduct, he will not be\nheard to argue that the statute is vague as to one or more\nhypothetical scenarios. See Holder v. Humanitarian Law Project,\n561 U.S. 1, 18–19, 130 S. Ct. 2705, 2718–19 (2010) (quoting\nVillage of Hoffman Estates v. Flipside Hoffman Estates, Inc., 455\nU.S. 489, 495, 102 S. Ct. 1186, 1191 (1982)); Broadrick v. Okla-\nhoma, supra n.2., 413 U.S. at 610, 93 S. Ct. at 2915 (collecting\ncases).\n Nonetheless, the Supreme Court has on a number of\noccasions entertained facial challenges to criminal statutes that\ndo not implicate First Amendment concerns. See, e.g., Skilling,\n561 U.S. at 402–14, 130 S. Ct. at 2927–33 (honest services fraud);\nCity of Chicago v. Morales, 527 U.S. 41, 52–64, 119 S. Ct. 1849,\n1857–63 (1999) (loitering by gang members in public spaces);\nLanzetta v. New Jersey, 306 U.S. 451, 453–58, 59 S. Ct. 618, 619–21\n(1939) (gang participation); United States v. L. Cohen Grocery Co.,\n255 U.S. 81, 89–93, 41 S. Ct. 298, 300–01 (1921) (price gouging).\nAs we noted in United States v. Jones, 689 F.3d 696 (7th Cir.\n\n\n2\n When a statute implicates activities protected by the First Amendment,\nthere is a special concern that free speech and expression not be chilled. See\nBroadrick v. Oklahoma, 413 U.S. 601, 611–12, 93 S. Ct. 2908, 2915–16 (1973).\n\fNo. 18-1343 7\n\n2012), abrogated on other grounds by Johnson v. United States, 135\nS. Ct. 2551 (2015), the common thread uniting these cases with\nfacial challenges in the First Amendment context appears to be\na concern (or at least a colorable contention) that the chal-\nlenged statute “simply has no core” and lacks “any ascertain-\nable standard for inclusion and exclusion, ”id. at 703 (quoting\nSmith v. Goguen, 415 U.S. 566, 578, 94 S. Ct. 1242, 1249 (1974)).\nSuch a standardless statute poses a trap for the person acting\nin good faith, who is given no guidepost by which he can\ndivine what sort of conduct is prohibited. See Colautti v.\nFranklin, 439 U.S. 379, 395, 99 S. Ct. 675, 685 (1979), overruled in\npart on other grounds, Webster v. Reproductive Health Servs., 492\nU.S. 490, 109 S. Ct. 3040 (1989). The concern is heightened\nwhen the statute contains no mens rea requirement, Colautti,\n439 U.S. at 395, 99 S. Ct. at 685–86, and the uncertainty as to\nexactly what is proscribed “threatens to inhibit the exercise of\nconstitutionally protected rights,” id. at 391, 99 S. Ct. at 683. See\nalso Morales, 527 U.S. at 55, 119 S. Ct. at 1858.\n The statutory prohibition at issue here does not present\nsuch concerns. True enough, section 922(g)(3) does implicate\nCook’s Second Amendment right to possess a gun. But the\nprohibition is not a strict liability offense requiring no mens rea,\nas in Colautti. By virtue of the separate penalties provision\nfound in 18 U.S.C. § 924(a)(2), a violation of section 922(g)(3)\nmust be knowing – that is, the defendant must have knowl-\nedge of the facts that constitute the offense. See Holder, 561 U.S.\nat 21, 130 S. Ct. at 2720 (“the knowledge requirement of the\nstatute further reduces any potential for vagueness, as we have\nheld with respect to other statutes containing a similar require-\nment”) (collecting cases); United States v. Johnson, 911 F.3d 849,\n\f8 No. 18-1343\n\n853 (7th Cir. 2018) (word “knowingly” cures any potential\nvagueness in challenged condition of supervised release)\n(citing Screws v. United States, 325 U.S. 91, 102, 65 S. Ct. 1031,\n1036 (1945)). More importantly, there is, as our decision in\nUnited States v. Yancey, 621 F.3d 681 (7th Cir. 2010) (per curiam)\nmakes clear, a readily appreciable core of conduct prohibited\nby the statute.\n Yancey construes the term “unlawful user,” as used in\nsection 922(g)(3), to mean one who regularly or habitually\ningests controlled substances in a manner other than as\nprescribed by a physician. Id. at 682. Our opinion adds that\nsuch use must be contemporaneous with the defendant’s\npossession of a gun. Id. at 687 (collecting cases); see also United\nStates v. Grap, 403 F.3d 439, 446 (7th Cir. 2005) (adopting same\ncontemporaneity requirement for purposes of U.S.S.G.\n§ 2K2.1(a)(6), which specifies the base offense level for\n“prohibited person” convicted of firearms offense) (collecting\ncases). We rendered this interpretation of section 922(g)(3) in\nthe course of rejecting a Second Amendment challenge to the\nstatute. Noting the well-established link between chronic drug\nuse and violence, we concluded that section 922(g)(3)’s ban on\ngun possession by those who regularly engage in illegal drug\nuse was substantially related to the important government\ninterest in preventing violent crime. 621 F.3d at 686–87. We\nmust take into account Yancey’s gloss on the statute in evaluat-\ning Cook’s vagueness claim. See Skilling, 561 U.S. at 405, 130\nS. Ct. at 2929 (“It has long been our practice, … before striking\na federal statute as vague, to consider whether the prescription\nis amenable to a limiting construction.”); Pleasureland Museum,\n\fNo. 18-1343 9\n\nInc. v. Beutter, 288 F.3d 988, 995–96 (7th Cir. 2002); Waldron v.\nMcAtee, 723 F.2d 1348, 1354 (7th Cir. 1983).\n Cook is thus not in a position to claim that the statute is so\nindefinite as to inhibit the legitimate exercise of Second\nAmendment rights. Whatever doubt there might be at the\nmargins as to conduct potentially reached by section 922(g)(3),\nthere can be no doubt as to the core of conduct that the statute\n(as construed by Yancey) proscribes: the possession of a firearm\nby an individual engaged in the regular, non-prescribed use of\na controlled substance. Indeed, it would appear that Cook’s\nconduct—possession of a firearm in the midst of a nearly ten-\nyear period of daily marijuana use—epitomizes that core,\nwhich may explain why Cook is so keen to challenge the\nstatute on its face rather than as applied.\n Cook nonetheless suggests that the Supreme Court’s recent\ndecision in Johnson authorizes his facial vagueness challenge,\nregardless of whether the statute is vague as applied to his\nparticular conduct. Johnson declared the (now defunct) residual\nclause of the Armed Career Criminal Act (“ACCA”) to be\nimpermissibly vague without requiring the defendant to first\nshow that the clause was vague as applied to him. 135 S. Ct. at\n2563. The ACCA specifies an enhanced sentence of 15 years to\nlife for one convicted of a firearms offense if the defendant has\nthree or more prior convictions for either a “serious drug\noffense” or a “violent felony.” 18 U.S.C. § 924(e)(1). As relevant\nhere, the statute defines “violent felony” to mean a crime\npunishable by a year or more in prison which “is burglary,\narson, or extortion, involves use of explosives, or otherwise\ninvolves conduct that presents a serious potential risk of physical\ninjury to another[.]” § 924(e)(2)(B)(ii) (emphasis ours). The Court\n\f10 No. 18-1343\n\npreviously had construed section 924(e)(2)(B)(ii) generally to\nrequire a sentencing court to employ a categorical approach\nfocusing on the generic version of an offense (that is, what the\nelements of the offense required), rather than the defendant’s\nactual conduct, in deciding whether his prior conviction\nqualified as a violent felony. See Taylor v. United States, 495 U.S.\n575, 602, 110 S. Ct. 2143, 2160 (1990). In view of the categorical\ninquiry mandated by Taylor, two aspects of the residual clause\nwe have italicized led the Supreme Court in Johnson to con-\nclude that this clause was impermissibly vague: (1) after\npostulating the archetypal version of the crime, one had to\ndecide how much risk of physical injury was posed by that\nidealized version of the offense; and (2) one also had to\nconsider how much risk of injury was required to render an\noffense violent as compared with the offenses expressly\nidentified in the statute (burglary, arson, extortion, and\noffenses involving the use of explosives). 135 S. Ct. at 2557–58.\nBoth inquiries were plagued by uncertainty, as evidenced by\nboth the Court’s own demonstrated inability in a series of prior\nresidual clause cases to articulate a “principled and objective\nstandard” for identifying crimes that present a serious risk of\nphysical injury, id. at 2558, as well as the “numerous splits\namong the lower federal courts,” where the clause had proved\n“nearly impossible to apply consistently,” id. at 2560 (quoting\nChambers v. United States, 555 U.S. 122, 133, 129 S. Ct. 687, 694\n(2009) (Alito, J., concurring in judgment)). “Nine years’\nexperience trying to derive meaning from the residual clause\nconvinces us that we have embarked upon a failed enterprise,”\nthe Court concluded. “Each of the uncertainties in the residual\nclause may be tolerable in isolation, but ‘their sum makes a\n\fNo. 18-1343 11\n\ntask for us which at best could be only guesswork.’” Id.\n(quoting United States v. Evans, 333 U.S. 483, 495, 68 S. Ct. 634,\n641 (1948)).\n In declaring the residual clause to violate the due process\nclause, the Court expressly rejected the government’s conten-\ntion that an otherwise vague statute is constitutional so long as\n“there is some conduct that clearly falls within the provision’s\ngrasp.” Id. at 2561. While acknowledging that statements in\nsome of its opinions could be read to support such a rule, the\nCourt emphasized that its prior holdings squarely contradicted\nsuch a practice. Id. at 2560–61. Simply because it is possible to\nenvision some factual scenarios that would violate an\nambiguously-worded statute is not enough to rescue that\nstatute from a vagueness challenge, the Court made clear. Id.\nat 2561.\n The Court was also at pains to emphasize, however, that\nsimply because a criminal statute uses qualitative language to\narticulate a liability standard does not mean that the statute is\nimpermissibly vague, especially when the statute under\nscrutiny calls upon the court to apply that standard to a\nconcrete set of facts. Id. at 2561; see also id. at 2558.\n As a general matter, we do not doubt the consti-\n tutionality of laws that call for the application of\n a qualitative standard such as “substantial risk”\n to real-world conduct; “the law is full of in-\n stances where a man’s fate depends on his\n estimating rightly … some matter of degree,”\n Nash v. United States, 229 U.S. 373, 377, 33 S. Ct.\n 780 (1913). The residual clause, however, re-\n\f12 No. 18-1343\n\n quires application of the “serious potential risk”\n standard to an idealized ordinary case of the\n crime. Because “the elements necessary to\n determine the imaginary ideal are uncertain\n both in nature and degree of effect,” this abstract\n inquiry offers significantly less predictability\n than one “[t]hat deals with the actual, not with\n an imaginary condition other than the facts.”\n International Harvester Co. of America v. Kentucky,\n 234 U.S. 216, 223, 34 S. Ct. 853 (1914).\n135 S. Ct. at 2561.\n It is not clear how much Johnson—and the Court’s follow-on\ndecision last term in Sessions v. Dimaya, 138 S. Ct. 1204 (2018),\nwhich invalidated similar language in the Immigration and\nNationality Act—actually expand the universe of litigants who\nmay mount a facial challenge to a statute they believe is vague.\nNot surprisingly, Cook contends that Johnson permits any\ndefendant who can postulate doubts as to what particular\nconduct a criminal statute does or does not reach to pursue a\nfacial challenge to that statute, without having to show that\nthere is any real question as to whether his own conduct is\nproscribed. It is true that Johnson puts to rest the notion—found\nin any number of pre-Johnson cases3—that a litigant must show\n\n\n3\n See, e.g., United States v. Salerno, 481 U.S. 739, 745, 107 S. Ct. 2095, 2100\n(1987) (“A facial challenge to a legislative Act is, of course, the most difficult\nchallenge to mount successfully, since the challenger must establish that no\nset of circumstances exists under which the Act would be valid.”); Johnson,\n135 S. Ct. at 2574, 2581 (Alito, J., dissenting); Hegwood v. City of Eau Claire,\n (continued...)\n\fNo. 18-1343 13\n\nthat the statute in question is vague in all of its applications in\norder to successfully mount a facial challenge. 135 S. Ct. at\n2561. And, as we have mentioned, Johnson likewise rejects the\nnotion that simply because one can point to some conduct that\nthe statute undoubtedly would reach is alone sufficient to save\nit from a vagueness challenge. Id. So Cook has those aspects of\nJohnson going for him. But so much of the Court’s analysis in\nJohnson deals with a statute that is in key respects sui generis. In\nparticular, it was the categorical approach called for by the\nACCA’s residual clause—requiring courts to look not at the\nactual conduct underlying the defendant’s prior conviction but\nrather at the archetypal version of the offense and then to\nconsider whether the risk of injury posed by that version was\nsufficient to render the crime violent—which the court found\nto be particularly vexing. Id. at 2557–58. Assessing the degree\nof risk posed by an idealized “typical” version of an offense\nwas significantly different, as the Court emphasized, from\nlooking at the risks posed by a set of actual, concrete facts. Id.\nat 2558; see also Dimaya, 138 S. Ct. at 1214–16.\n Cook’s appeal, by contrast, presents a much more routine\nvagueness challenge that highlights some imprecision in the\nstatutory language and posits uncertainty as to whether the\nstatute might apply to certain hypothetical facts. But section\n922(g)(3) does not call for the court to engage in any abstract\nanalysis; it calls on the court to apply the statutory prohibition\n\n\n3\n (...continued)\n676 F.3d 600, 604 (7th Cir. 2012); Sherman ex rel. Sherman v. Koch, 623 F.3d\n501, 520 (7th Cir. 2010); Schor v. City of Chicago, 576 F.3d 775, 781 (7th Cir.\n2009).\n\f14 No. 18-1343\n\nto a defendant’s real-world conduct. See United States v.\nDouglas, 907 F.3d 1, 11, 14 (1st Cir. 2018), pet’n for cert. filed, No.\n18-7331 (U.S. Jan. 7, 2019); Ovalles v. United States, 905 F.3d\n1231, 1233–34, 1252 (11th Cir. 2018) (en banc); United States v.\nBarrett, 903 F.3d 166, 178–79, 182 (2d Cir. 2018), pet’n for cert.\nfiled, No. 18-6985 (U.S. Dec. 3, 2018); United States v. Larson,\n— F. App’x —, 2018 WL 4203470, at *2 (4th Cir. Sept. 4, 2018)\n(per curiam) (unpublished). Moreover, there is, as we have\ndiscussed, a readily appreciable core of conduct that the statute\nreaches: If one regularly uses marijuana or another controlled\nsubstance other than as directed by a physician, he may not\npossess a firearm so long as the use persists. Consequently,\ncitizens who wish to exercise their Second Amendment rights\nand law enforcement officials alike have reasonable notice of\nwhat is prohibited. This is not a “hopelessly indeterminate”\nstatute that leaves everyone to guess what conduct is legal and\nwhat conduct is proscribed.4 The statute, as construed by\n\n\n4\n We recognize that a liability standard turning on the regularity of a\nparticular activity can in some instances present a vagueness problem. See\nWhatley v. Zatecky, 833 F.3d 762 (7th Cir. 2016) (finding impermissibly vague\nstatute specifying enhanced sentence for individual possessing controlled\nsubstance within 1000 feet of “youth program center,” defined as any\nbuilding that provides youth-oriented programs or services “ on a regular\nbasis”). In contrast to Whatley, the statute at issue here is not a strict-liability\nprovision, and one’s liability under section 922(g)(3) turns on the regularity\nof one’s own conduct rather than the activity occurring in a building that\nmay exhibit no indicia of what programs and services are provided therein\nand how often. One who uses a controlled substance necessarily knows\nhow often he does so. And whatever doubt there might be as to when one’s\ndrug use becomes regular, Cook as a daily user of marijuana over the\n (continued...)\n\fNo. 18-1343 15\n\nYancey, does incorporate a qualitative liability standard, and\none can posit, as Cook does, hypothetical scenarios which\npresent close questions as to whether an individual’s use of a\ncontrolled substance is unlawful, whether it qualifies as\nregular and ongoing, and/or whether that use is sufficiently\ncontemporaneous with his or her possession of a firearm. But\nin contrast with the residual clause, there is no judicial history\nof courts struggling to appreciate what particular conduct\nCongress meant to reach with section 922(g)(3) or to apply the\nstatutory terms to varying sets of facts. The uniform rejection\nof as-applied vagueness challenges to section 922(g)(3) by itself\nsuggests that it is not anything like the sort of problematic\nstatute the Court confronted in Johnson. See United States v.\nBramer, 832 F.3d 908, 909–10 (8th Cir. 2016) (per curiam); United\nStates v. Edwards, 540 F.3d 1156, 1162 (10th Cir. 2008); United\nStates v. Patterson, 431 F.3d 832, 836 (5th Cir. 2005); United States\nv. Purdy, supra n.4, 264 F.3d at 812. And simply because it may\nsometimes be difficult to determine if an individual’s drug use\nmeets section 922(g)(3)’s standard for liability does not signify\nthat the statute is impermissibly vague, given that there is no\ndoubt as to the essence of what the statute forbids: the posses-\nsion of a firearm by one who is engaged in the regular and\nongoing use of a controlled substance other than as prescribed\n\n\n\n4\n (...continued)\ncourse of a decade cannot reasonably claim to have been in doubt as to\nwhether his use qualified as regular. See United States v. Purdy, 264 F.3d 809,\n812 (9th Cir. 2001) (“Purdy’s [regular, years-long] drug use … was sufficient\nto put him on notice that he fell within the statutory definition of ‘unlawful\n[drug] user.’”).\n\f16 No. 18-1343\n\nby a doctor. See Williams, supra, 553 U.S. at 306, 128 S. Ct. at\n1846.\n For these reasons, we are not convinced that Cook is\nentitled to mount a facial vagueness challenge to section\n922(g)(3). Johnson did not alter the general rule that a defendant\nwhose conduct is clearly prohibited by a statute cannot be the\none to make a facial vagueness challenge. United States v.\nWestbrooks, 858 F.3d 317, 325–26 (5th Cir. 2017) (collecting\ncases), cert. granted & judgment vacated on other grounds, 138\nS. Ct. 1323 (2018). Cook’s conduct, if anything, undoubtedly\nfalls within the obvious core of conduct proscribed by the\nstatute. Per his statement at the police station, he had been\nusing marijuana daily for almost ten years and he had smoked\ntwo blunts on the day of his arrest; and the police officers who\nstopped his vehicle and took him into custody noted a strong\nodor of marijuana emanating from the interior and that Cook\nhimself reeked of the substance. These facts no doubt explain\nwhy Cook has declined to pursue an as-applied vagueness\nchallenge to section 922(g)(3): it would surely fail. See United\nStates v. Jackson, 280 F.3d 403, 406 (4th Cir. 2002) (addressing\nfacts nearly identical to those presented here) (“While we do\nnot doubt that the exact reach of the statute is not easy to\ndefine, we agree with the government that this is not a border-\nline case. … Given the evidence, Jackson violated the plain\nmeaning of the statute.”).\n Cook’s attempt to challenge section 922(g)(3) as facially\nvague fails for all of the reasons we have discussed, and\nbecause he asserts no as-applied challenge to the statute, we\nreject his contention that the statute is inconsistent with his due\nprocess rights.\n\fNo. 18-1343 17\n\nB. Second Amendment\n Cook agrees that Yancey forecloses this challenge to section\n922(g)(3). Yancey, as noted, held that there was a substantial\nrelationship between the government’s legitimate interest in\npreventing violent crime and the statute’s ban on gun posses-\nsion by unlawful drug users. 621 F.3d at 683–87. Although\nCook asserts that Yancey was wrongly decided, he offers us no\nreal reason to reconsider our precedent on this point. As the\nlaw is settled in this circuit, we reject his Second Amendment\nobjection to the statute.\nC. Jury Instruction\n Cook argues finally that the district court did not properly\ninstruct the jury as to the elements of his offense. As we noted\nin our summary of the proceedings below, the court advised\nthe jury that “[t]he defendant was an unlawful user of mari-\njuana if he used marijuana on a regular and ongoing basis for\na period of time that began before and continued through the\ndate of the offense.” R. 44 at 8; R. 56 at 70–71 (emphasis\nomitted). The court added that Cook need not have been under\nthe influence of marijuana when he possessed a firearm, nor\nwas the government required to prove that he used marijuana\non any particular date or within a specified number of days of\nthe offense. (Recall that Cook had rejected the government’s\noffer to add language that use of marijuana on a single occa-\nsion was insufficient to establish unlawful drug use.) Cook\ncontends that the instruction as given was erroneous because\n(a) it was not grounded in the language of section 922(g)(3);\n(b) it was not consistent with Yancey’s holding as to who\nconstitutes an unlawful drug user; (c) the instruction was\n\f18 No. 18-1343\n\ninternally inconsistent; and (d) it foreclosed the defense from\nurging the jurors to use their own understanding of “unlawful\nuser” in assessing Cook’s conduct. None of these arguments is\npersuasive.\n The instruction was grounded in the language of the statute\nin that it endeavored, consistent with the case law regarding\nsection 922(g)(3), to define for the jury who constitutes an\nunlawful drug user. The statute itself does not define “unlaw-\nful drug user.” As discussed, this court in Yancey concluded\nthat an unlawful drug user is one who regularly uses a\ncontrolled substance, other than as prescribed by a physician,\ncontemporaneously with possessing a firearm. 621 F.3d at 682,\n687. In doing so, we acted in accord with other circuits which\nhave concluded that the statute’s reach is limited by two key\nrequirements: (1) regularity of drug use (2) that is sufficiently\ncontemporaneous with the possession of a firearm. See id.\n(collecting cases). That these are limits imposed on the offense\nby the judiciary rather than the face of the statute does not\nrender them invalid. See United States v. Lanier, 520 U.S. 259,\n266, 117 S. Ct. 1219, 1225 (1997) (“clarity at the requisite level\nmay be supplied by judicial gloss on an otherwise uncertain\nstatute”) (collecting cases); Skilling, supra, 561 U.S. at 405–06,\n130 S. Ct. at 2929–30 (before striking down a federal statute as\nvague courts will first consider if it is subject to a limiting\nconstruction that avoids vagueness); id. at 409 n.43, 130 S. Ct.\nat 2931 n.43 (“cases ‘paring down’ federal statutes to avoid\nconstitutional shoals are legion”). The district court appropri-\nately looked to Yancey’s gloss on the statute in defining\n“unlawful drug user” for the jury.\n\fNo. 18-1343 19\n\n Nor was the instruction inconsistent with Yancey. Cook\nsuggests that Yancey defined “unlawful user” of drugs to mean\neither one who is addicted to controlled substances or one who\nhas simply used them within the past year, and that the\nreference to “regular and ongoing” drug use in the district\ncourt’s instruction is both broader than addiction and narrower\nthan use within the past year. But Cook’s reading of Yancey is\nnot a faithful reading of the court’s opinion. The opinion makes\nclear that section 922(g)(3) requires regular or habitual drug use,\n621 F.3d at 682, that is contemporaneous with the possession\nof a firearm, id. at 687. Nowhere in our decision did we suggest\nthat a single or occasional, irregular use of a controlled\nsubstance within a year of the gun possession was sufficient to\nmeet these criteria. Nor did we indicate that regular or habitual\nuse necessarily equates with addiction. The instruction given\nhere was fully consistent with Yancey’s requirements: the term\n“regular” connotes a pattern of repeated drug use (be it\nvolitional or as the result of an addiction), and “ongoing”\nconnotes the requisite temporal nexus with possession of the\ngun.\n The instruction was also internally consistent. Cook’s\ncontention to the contrary focuses on the fact that the instruc-\ntion advised the jury, on the one hand, that his marijuana use\nmust have “beg[u]n before and continued through the date of\nthe charged offense” but, on the other hand, that he need not\nhave “used marijuana on any particular day, or within a\ncertain number of days of when he committed the charged\noffense.” These portions of the instruction were not at odds\nwith one another. Consistent with Yancey’s requirement that\nthe defendant’s drug use be contemporaneous with his\n\f20 No. 18-1343\n\npossession of a firearm, the court appropriately advised the\njury that Cook’s marijuana use must have been “ongoing” at\nthe time he was discovered in possession of a gun. But the\nrequirement that the drug use and firearm possession be\ncontemporaneous does not literally mean that the defendant\nmust have been ingesting (or under the influence of) a con-\ntrolled substance at the same time as he possessed the gun. The\nstatute, after all, prohibits firearm possession by a drug user,\nnot simply possession during drug use. So long as the defen-\ndant was still engaged in the regular use of a drug at the time\nof his firearm possession, it is not necessary to show that he\nused the drug on the day of his firearm possession, the day\nbefore, or within any particular number of days of the posses-\nsion. Thus, a person who routinely uses marijuana on week-\nends may violate section 922(g)(3) by possessing a firearm on\na Tuesday or Wednesday, because his possession of the gun is\ncontemporaneous with his ongoing pattern of drug use. The\ninstruction appropriately and coherently advised the jury on\nthese points.\n Finally, we are no more persuaded than the district judge\nwas that the instruction should have left it to the jurors to\nconsult their own collective sense of who constitutes an\n“unlawful user” of marijuana. Yancey establishes the relevant\nparameters on this point, and the district court was required to\nconvey those parameters to the jury to guide its decisionmak-\ning, which Judge Peterson did admirably.\n That said, our holding should not be construed to foreclose\nalternate versions of the “unlawful user” instruction. The Sixth\nand Eighth Circuits, for example, have promulgated instruc-\ntions with slightly different language. See MANUAL OF MODEL\n\fNo. 18-1343 21\n\nCRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT COURTS OF THE\nEIGHTH CIRCUIT § 6.18.922B, at 291–94 (2017); United States v.\nBurchard, 580 F.3d 341, 352 (6th Cir. 2009). Although the\narguments in this court and in the court below reflect some\nanticipation that we might settle upon our own preferred\nversion of the instruction in this appeal, we respectfully decline\nto do so. As the foregoing discussion makes clear, we find no\nfault with the particular instruction that Judge Peterson gave\nto the jury, and we need not go farther than that to resolve\nCook’s appeal. The task of drafting a model instruction, we\nbelieve, is better left to our Circuit’s Pattern Criminal Jury\nInstruction Committee, which has a membership that includes\npractitioners as well as judges and which can solicit and\nincorporate comments on any proposed instruction from the\nbar at large. We shall invite the Committee to consider a\npattern instruction for a section 922(g)(3) charge, including but\nnot limited to the issue of who constitutes an “unlawful user”\nof a controlled substance for purposes of this statute.\n III.\n For all of the foregoing reasons, we AFFIRM Cook’s\nconviction. We commend everyone involved in the briefing\nand arguing of this case, along with Judge Peterson and\nMagistrate Judge Crocker for their thorough and careful\nhandling of the case below. Their dedication and hard work\nhave greatly aided this court’s deliberation and resolution of\nthe appeal.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4362570/", "author_raw": "Ilana Kara Diamond Rovner"}]}	FLAUM	MANION	ROVNER	1		{"FLAUM": ", Circuit", "MANION": ", Circuit", "ROVNER": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4585317/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: United States v. Blair Cook\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-28\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\nNo. 18-1343\n\nUNITED STATES OF AMERICA,\n Plaintiff-Appellee,\n\n v.\n\n\nBLAIR COOK,\n Defendant-Appellant.\n\n\n Appeal from the United States District Court for the\n Western District of Wisconsin.\n No. 3:17-cr-00048-001 — James D. Peterson, Chief Judge.\n\n\n\n ARGUED SEPTEMBER 13, 2018 — DECIDED JANUARY 28, 2019\n\n\n Before FLAUM, MANION, and ROVNER, Circuit Judges.\n ROVNER, Circuit Judge. A jury convicted Blair Cook of being\nan unlawful user of a controlled substance (marijuana) in\npossession of a firearm. See 18 U.S.C. § 922(g)(3). Cook appeals\nhis conviction, contending that the statute underlying his\nconviction is facially vague, that it improperly limits his\nSecond Amendment right to possess a firearm, and that the\n\f2 No. 18-1343\n\ndistrict court did not properly instruct the jury as to who\nconstitutes an unlawful user of a controlled substance. We\naffirm Cook’s conviction.\n I.\n On May 25, 2017, officers of the Madison, Wisconsin police\ndepartment conducted a traffic stop of the car that Cook was\ndriving. When officers approached the car and spoke with\nCook, they noticed a strong odor of marijuana emanating from\nthe car. Apart from the possibility that Cook was driving under\nthe influence of marijuana, Cook was also driving on a\nsuspended license and without a license plate on the front of\nhis vehicle, so the officers decided to detain him and ordered\nhim to step out of the vehicle. Officer Matthew Wentzel\nremoved a loaded, .40-caliber Glock Model 23 pistol from a\nholster under Cook’s shoulder. The gun had an extended 22-\nround capacity magazine with 19 bullets remaining. Cook was\ntransported to the police station for further questioning.\nDuring a recorded interview at the station, Cook acknowl-\nedged to Wentzel that he had used marijuana almost daily for\nnearly ten years (since the age of 14), that he did so because\nmarijuana calmed him down, and that he had smoked two\n“blunts” earlier that day.1 On prodding from the police, Cook\nultimately produced a small packet from his groin area\ncontaining a half ounce of marijuana.\n Cook had purchased the firearm from Max Creek Outdoors\nin Oregon, Wisconsin on April 2, 2017. At the time of the\n\n\n1\n “Blunt” is a street term for a cigar from which the tobacco has been\nremoved and replaced with marijuana.\n\fNo. 18-1343 3\n\npurchase, he was required to complete a Firearms Transaction\nRecord Form 4473 promulgated by the Bureau of Alcohol,\nTobacco, Firearms, and Explosives (“ATF”). On that form,\nCook answered “No” to the question, “Are you an unlawful\nuser of, or addicted to, marijuana or any depressant, stimulant,\nnarcotic drug, or any other controlled substance?” Directly\nunder that question the reader of the form was admonished,\n“Warning: The use or possession of marijuana remains\nunlawful under Federal law regardless of whether it has been\nlegalized or decriminalized for medical or recreational pur-\nposes in the state where you reside.”\n A grand jury subsequently charged Cook with two of-\nfenses: possession of a firearm and ammunition by an “unlaw-\nful user” of marijuana, in violation of section 922(g)(3), and\nmaking a false statement (that he was not an unlawful user of\nmarijuana) on the ATF form in connection with his purchase of\na firearm and ammunition, in violation of 18 U.S.C.\n§ 924(a)(1)(A).\n Cook moved to dismiss both counts of the indictment on\nthe ground that the term “unlawful user” of a controlled\nsubstance found in sections 922(g)(3) and 924(a)(1)(A) is\nunconstitutionally vague. The district court denied the motion.\nR. 21 at 2–3.\n The district court subsequently gave the following instruc-\ntion to the jury as to who constitutes an “unlawful user” of\nmarijuana:\n The defendant was an unlawful user of mari-\n juana if he used marijuana on a regular and\n ongoing basis for a period of time that began\n\f4 No. 18-1343\n\n before and continued through the date of the\n charged offense. The government is not required\n to prove that the defendant was under the\n influence of marijuana when he filled out the\n Firearms Transaction Record or when he pos-\n sessed the firearm. The government is not re-\n quired to prove that the defendant used mari-\n juana on any particular day, or within a certain\n number of days of when he committed the\n charged offenses.\nR. 44 at 8; R. 56 at 70–71 (emphasis in original). The defense\nrejected the government’s offer to include an additional\nsentence in this instruction advising the jury that a one-time\nuse of marijuana is insufficient to render the defendant an\n“unlawful user” within the meaning of either statute. R. 87 at\n17.\n Following a one-day trial, a jury convicted Cook on the\nsection 922(g)(3) charge but was unable to reach a verdict on\nthe section 924 charge, which the district court dismissed\nwithout prejudice, R. 53. The district court denied Cook’s Rule\n33 motions for a new trial (R. 73) and ordered Cook to serve a\nfour-year term of probation in lieu of any term of imprison-\nment (R. 76).\n II.\n Section 922(g)(3) provides in relevant part that “[i]t shall be\nunlawful for any person … who is an unlawful user of or\naddicted to any controlled substance (as defined in section 102\nof the Controlled Substances Act (21 U.S.C. § 802)) … to …\npossess in or affecting commerce, any firearm or ammunition\n\fNo. 18-1343 5\n\n… .” Marijuana is a Schedule I controlled substance, see 21\nU.S.C. § 812(c)(10), and because the Glock pistol Cook pur-\nchased had previously traveled in interstate commerce (it was\nmanufactured in Smyrna, Georgia), section 922(g)(3) forbade\nCook’s possession of the gun at the time of the May 2017 traffic\nstop provided he qualified as an “unlawful user” of marijuana,\nwhich the jury necessarily found that he did.\n Cook challenges his conviction pursuant to this statute on\nthree grounds: (1) the statute is facially vague as to who\nconstitutes an “unlawful user” of a controlled substance; (2)\nthe statute violates his Second Amendment right to possess a\nfirearm; and (3) the jury instruction defining “unlawful user”\nwas inadequate. For the reasons that follow, we find none of\nthese arguments to be persuasive.\nA. Facial vagueness challenge to section 922(g)(3).\n Cook contends that section 922(g)(3) is vague on its face,\nsuch that his conviction violates the Fifth Amendment’s due\nprocess clause. The void-for-vagueness doctrine requires that\na criminal statute define an offense with sufficient clarity that\nan ordinary person has fair notice of what conduct is prohib-\nited and so as to avoid arbitrary and discriminatory enforce-\nment. See, e.g., Skilling v. United States, 561 U.S. 358, 402–03, 130\nS. Ct. 2896, 2927–28 (2010); United States v. Sylla, 790 F.3d 772,\n774–75 (7th Cir. 2015). “What renders a statute vague is not the\npossibility that it will sometimes be difficult to determine\nwhether the incriminating fact it establishes has been proved;\nbut rather the indeterminacy of precisely what that fact is.”\nUnited States v. Williams, 553 U.S. 285, 306, 128 S. Ct. 1830, 1846\n(2008).\n\f6 No. 18-1343\n\n The general practice, outside of the First Amendment\ncontext,2 has been to consider the purported vagueness of a\nstatute in light of the facts of the particular case—i.e., as\napplied—rather than in the abstract. See, e.g., Maynard v.\nCartwright, 486 U.S. 356, 361, 108 S. Ct. 1853, 1857–58 (1988);\nUnited States v. Johnson, 875 F.3d 360, 370 (7th Cir. 2017). This\nmeans, of course, that a litigant challenging the statute ordi-\nnarily must show that it is vague as applied to him; and if the\nstatute undoubtedly applies to his conduct, he will not be\nheard to argue that the statute is vague as to one or more\nhypothetical scenarios. See Holder v. Humanitarian Law Project,\n561 U.S. 1, 18–19, 130 S. Ct. 2705, 2718–19 (2010) (quoting\nVillage of Hoffman Estates v. Flipside Hoffman Estates, Inc., 455\nU.S. 489, 495, 102 S. Ct. 1186, 1191 (1982)); Broadrick v. Okla-\nhoma, supra n.2., 413 U.S. at 610, 93 S. Ct. at 2915 (collecting\ncases).\n Nonetheless, the Supreme Court has on a number of\noccasions entertained facial challenges to criminal statutes that\ndo not implicate First Amendment concerns. See, e.g., Skilling,\n561 U.S. at 402–14, 130 S. Ct. at 2927–33 (honest services fraud);\nCity of Chicago v. Morales, 527 U.S. 41, 52–64, 119 S. Ct. 1849,\n1857–63 (1999) (loitering by gang members in public spaces);\nLanzetta v. New Jersey, 306 U.S. 451, 453–58, 59 S. Ct. 618, 619–21\n(1939) (gang participation); United States v. L. Cohen Grocery Co.,\n255 U.S. 81, 89–93, 41 S. Ct. 298, 300–01 (1921) (price gouging).\nAs we noted in United States v. Jones, 689 F.3d 696 (7th Cir.\n\n\n2\n When a statute implicates activities protected by the First Amendment,\nthere is a special concern that free speech and expression not be chilled. See\nBroadrick v. Oklahoma, 413 U.S. 601, 611–12, 93 S. Ct. 2908, 2915–16 (1973).\n\fNo. 18-1343 7\n\n2012), abrogated on other grounds by Johnson v. United States, 135\nS. Ct. 2551 (2015), the common thread uniting these cases with\nfacial challenges in the First Amendment context appears to be\na concern (or at least a colorable contention) that the chal-\nlenged statute “simply has no core” and lacks “any ascertain-\nable standard for inclusion and exclusion, ”id. at 703 (quoting\nSmith v. Goguen, 415 U.S. 566, 578, 94 S. Ct. 1242, 1249 (1974)).\nSuch a standardless statute poses a trap for the person acting\nin good faith, who is given no guidepost by which he can\ndivine what sort of conduct is prohibited. See Colautti v.\nFranklin, 439 U.S. 379, 395, 99 S. Ct. 675, 685 (1979), overruled in\npart on other grounds, Webster v. Reproductive Health Servs., 492\nU.S. 490, 109 S. Ct. 3040 (1989). The concern is heightened\nwhen the statute contains no mens rea requirement, Colautti,\n439 U.S. at 395, 99 S. Ct. at 685–86, and the uncertainty as to\nexactly what is proscribed “threatens to inhibit the exercise of\nconstitutionally protected rights,” id. at 391, 99 S. Ct. at 683. See\nalso Morales, 527 U.S. at 55, 119 S. Ct. at 1858.\n The statutory prohibition at issue here does not present\nsuch concerns. True enough, section 922(g)(3) does implicate\nCook’s Second Amendment right to possess a gun. But the\nprohibition is not a strict liability offense requiring no mens rea,\nas in Colautti. By virtue of the separate penalties provision\nfound in 18 U.S.C. § 924(a)(2), a violation of section 922(g)(3)\nmust be knowing – that is, the defendant must have knowl-\nedge of the facts that constitute the offense. See Holder, 561 U.S.\nat 21, 130 S. Ct. at 2720 (“the knowledge requirement of the\nstatute further reduces any potential for vagueness, as we have\nheld with respect to other statutes containing a similar require-\nment”) (collecting cases); United States v. Johnson, 911 F.3d 849,\n\f8 No. 18-1343\n\n853 (7th Cir. 2018) (word “knowingly” cures any potential\nvagueness in challenged condition of supervised release)\n(citing Screws v. United States, 325 U.S. 91, 102, 65 S. Ct. 1031,\n1036 (1945)). More importantly, there is, as our decision in\nUnited States v. Yancey, 621 F.3d 681 (7th Cir. 2010) (per curiam)\nmakes clear, a readily appreciable core of conduct prohibited\nby the statute.\n Yancey construes the term “unlawful user,” as used in\nsection 922(g)(3), to mean one who regularly or habitually\ningests controlled substances in a manner other than as\nprescribed by a physician. Id. at 682. Our opinion adds that\nsuch use must be contemporaneous with the defendant’s\npossession of a gun. Id. at 687 (collecting cases); see also United\nStates v. Grap, 403 F.3d 439, 446 (7th Cir. 2005) (adopting same\ncontemporaneity requirement for purposes of U.S.S.G.\n§ 2K2.1(a)(6), which specifies the base offense level for\n“prohibited person” convicted of firearms offense) (collecting\ncases). We rendered this interpretation of section 922(g)(3) in\nthe course of rejecting a Second Amendment challenge to the\nstatute. Noting the well-established link between chronic drug\nuse and violence, we concluded that section 922(g)(3)’s ban on\ngun possession by those who regularly engage in illegal drug\nuse was substantially related to the important government\ninterest in preventing violent crime. 621 F.3d at 686–87. We\nmust take into account Yancey’s gloss on the statute in evaluat-\ning Cook’s vagueness claim. See Skilling, 561 U.S. at 405, 130\nS. Ct. at 2929 (“It has long been our practice, … before striking\na federal statute as vague, to consider whether the prescription\nis amenable to a limiting construction.”); Pleasureland Museum,\n\fNo. 18-1343 9\n\nInc. v. Beutter, 288 F.3d 988, 995–96 (7th Cir. 2002); Waldron v.\nMcAtee, 723 F.2d 1348, 1354 (7th Cir. 1983).\n Cook is thus not in a position to claim that the statute is so\nindefinite as to inhibit the legitimate exercise of Second\nAmendment rights. Whatever doubt there might be at the\nmargins as to conduct potentially reached by section 922(g)(3),\nthere can be no doubt as to the core of conduct that the statute\n(as construed by Yancey) proscribes: the possession of a firearm\nby an individual engaged in the regular, non-prescribed use of\na controlled substance. Indeed, it would appear that Cook’s\nconduct—possession of a firearm in the midst of a nearly ten-\nyear period of daily marijuana use—epitomizes that core,\nwhich may explain why Cook is so keen to challenge the\nstatute on its face rather than as applied.\n Cook nonetheless suggests that the Supreme Court’s recent\ndecision in Johnson authorizes his facial vagueness challenge,\nregardless of whether the statute is vague as applied to his\nparticular conduct. Johnson declared the (now defunct) residual\nclause of the Armed Career Criminal Act (“ACCA”) to be\nimpermissibly vague without requiring the defendant to first\nshow that the clause was vague as applied to him. 135 S. Ct. at\n2563. The ACCA specifies an enhanced sentence of 15 years to\nlife for one convicted of a firearms offense if the defendant has\nthree or more prior convictions for either a “serious drug\noffense” or a “violent felony.” 18 U.S.C. § 924(e)(1). As relevant\nhere, the statute defines “violent felony” to mean a crime\npunishable by a year or more in prison which “is burglary,\narson, or extortion, involves use of explosives, or otherwise\ninvolves conduct that presents a serious potential risk of physical\ninjury to another[.]” § 924(e)(2)(B)(ii) (emphasis ours). The Court\n\f10 No. 18-1343\n\npreviously had construed section 924(e)(2)(B)(ii) generally to\nrequire a sentencing court to employ a categorical approach\nfocusing on the generic version of an offense (that is, what the\nelements of the offense required), rather than the defendant’s\nactual conduct, in deciding whether his prior conviction\nqualified as a violent felony. See Taylor v. United States, 495 U.S.\n575, 602, 110 S. Ct. 2143, 2160 (1990). In view of the categorical\ninquiry mandated by Taylor, two aspects of the residual clause\nwe have italicized led the Supreme Court in Johnson to con-\nclude that this clause was impermissibly vague: (1) after\npostulating the archetypal version of the crime, one had to\ndecide how much risk of physical injury was posed by that\nidealized version of the offense; and (2) one also had to\nconsider how much risk of injury was required to render an\noffense violent as compared with the offenses expressly\nidentified in the statute (burglary, arson, extortion, and\noffenses involving the use of explosives). 135 S. Ct. at 2557–58.\nBoth inquiries were plagued by uncertainty, as evidenced by\nboth the Court’s own demonstrated inability in a series of prior\nresidual clause cases to articulate a “principled and objective\nstandard” for identifying crimes that present a serious risk of\nphysical injury, id. at 2558, as well as the “numerous splits\namong the lower federal courts,” where the clause had proved\n“nearly impossible to apply consistently,” id. at 2560 (quoting\nChambers v. United States, 555 U.S. 122, 133, 129 S. Ct. 687, 694\n(2009) (Alito, J., concurring in judgment)). “Nine years’\nexperience trying to derive meaning from the residual clause\nconvinces us that we have embarked upon a failed enterprise,”\nthe Court concluded. “Each of the uncertainties in the residual\nclause may be tolerable in isolation, but ‘their sum makes a\n\fNo. 18-1343 11\n\ntask for us which at best could be only guesswork.’” Id.\n(quoting United States v. Evans, 333 U.S. 483, 495, 68 S. Ct. 634,\n641 (1948)).\n In declaring the residual clause to violate the due process\nclause, the Court expressly rejected the government’s conten-\ntion that an otherwise vague statute is constitutional so long as\n“there is some conduct that clearly falls within the provision’s\ngrasp.” Id. at 2561. While acknowledging that statements in\nsome of its opinions could be read to support such a rule, the\nCourt emphasized that its prior holdings squarely contradicted\nsuch a practice. Id. at 2560–61. Simply because it is possible to\nenvision some factual scenarios that would violate an\nambiguously-worded statute is not enough to rescue that\nstatute from a vagueness challenge, the Court made clear. Id.\nat 2561.\n The Court was also at pains to emphasize, however, that\nsimply because a criminal statute uses qualitative language to\narticulate a liability standard does not mean that the statute is\nimpermissibly vague, especially when the statute under\nscrutiny calls upon the court to apply that standard to a\nconcrete set of facts. Id. at 2561; see also id. at 2558.\n As a general matter, we do not doubt the consti-\n tutionality of laws that call for the application of\n a qualitative standard such as “substantial risk”\n to real-world conduct; “the law is full of in-\n stances where a man’s fate depends on his\n estimating rightly … some matter of degree,”\n Nash v. United States, 229 U.S. 373, 377, 33 S. Ct.\n 780 (1913). The residual clause, however, re-\n\f12 No. 18-1343\n\n quires application of the “serious potential risk”\n standard to an idealized ordinary case of the\n crime. Because “the elements necessary to\n determine the imaginary ideal are uncertain\n both in nature and degree of effect,” this abstract\n inquiry offers significantly less predictability\n than one “[t]hat deals with the actual, not with\n an imaginary condition other than the facts.”\n International Harvester Co. of America v. Kentucky,\n 234 U.S. 216, 223, 34 S. Ct. 853 (1914).\n135 S. Ct. at 2561.\n It is not clear how much Johnson—and the Court’s follow-on\ndecision last term in Sessions v. Dimaya, 138 S. Ct. 1204 (2018),\nwhich invalidated similar language in the Immigration and\nNationality Act—actually expand the universe of litigants who\nmay mount a facial challenge to a statute they believe is vague.\nNot surprisingly, Cook contends that Johnson permits any\ndefendant who can postulate doubts as to what particular\nconduct a criminal statute does or does not reach to pursue a\nfacial challenge to that statute, without having to show that\nthere is any real question as to whether his own conduct is\nproscribed. It is true that Johnson puts to rest the notion—found\nin any number of pre-Johnson cases3—that a litigant must show\n\n\n3\n See, e.g., United States v. Salerno, 481 U.S. 739, 745, 107 S. Ct. 2095, 2100\n(1987) (“A facial challenge to a legislative Act is, of course, the most difficult\nchallenge to mount successfully, since the challenger must establish that no\nset of circumstances exists under which the Act would be valid.”); Johnson,\n135 S. Ct. at 2574, 2581 (Alito, J., dissenting); Hegwood v. City of Eau Claire,\n (continued...)\n\fNo. 18-1343 13\n\nthat the statute in question is vague in all of its applications in\norder to successfully mount a facial challenge. 135 S. Ct. at\n2561. And, as we have mentioned, Johnson likewise rejects the\nnotion that simply because one can point to some conduct that\nthe statute undoubtedly would reach is alone sufficient to save\nit from a vagueness challenge. Id. So Cook has those aspects of\nJohnson going for him. But so much of the Court’s analysis in\nJohnson deals with a statute that is in key respects sui generis. In\nparticular, it was the categorical approach called for by the\nACCA’s residual clause—requiring courts to look not at the\nactual conduct underlying the defendant’s prior conviction but\nrather at the archetypal version of the offense and then to\nconsider whether the risk of injury posed by that version was\nsufficient to render the crime violent—which the court found\nto be particularly vexing. Id. at 2557–58. Assessing the degree\nof risk posed by an idealized “typical” version of an offense\nwas significantly different, as the Court emphasized, from\nlooking at the risks posed by a set of actual, concrete facts. Id.\nat 2558; see also Dimaya, 138 S. Ct. at 1214–16.\n Cook’s appeal, by contrast, presents a much more routine\nvagueness challenge that highlights some imprecision in the\nstatutory language and posits uncertainty as to whether the\nstatute might apply to certain hypothetical facts. But section\n922(g)(3) does not call for the court to engage in any abstract\nanalysis; it calls on the court to apply the statutory prohibition\n\n\n3\n (...continued)\n676 F.3d 600, 604 (7th Cir. 2012); Sherman ex rel. Sherman v. Koch, 623 F.3d\n501, 520 (7th Cir. 2010); Schor v. City of Chicago, 576 F.3d 775, 781 (7th Cir.\n2009).\n\f14 No. 18-1343\n\nto a defendant’s real-world conduct. See United States v.\nDouglas, 907 F.3d 1, 11, 14 (1st Cir. 2018), pet’n for cert. filed, No.\n18-7331 (U.S. Jan. 7, 2019); Ovalles v. United States, 905 F.3d\n1231, 1233–34, 1252 (11th Cir. 2018) (en banc); United States v.\nBarrett, 903 F.3d 166, 178–79, 182 (2d Cir. 2018), pet’n for cert.\nfiled, No. 18-6985 (U.S. Dec. 3, 2018); United States v. Larson,\n— F. App’x —, 2018 WL 4203470, at *2 (4th Cir. Sept. 4, 2018)\n(per curiam) (unpublished). Moreover, there is, as we have\ndiscussed, a readily appreciable core of conduct that the statute\nreaches: If one regularly uses marijuana or another controlled\nsubstance other than as directed by a physician, he may not\npossess a firearm so long as the use persists. Consequently,\ncitizens who wish to exercise their Second Amendment rights\nand law enforcement officials alike have reasonable notice of\nwhat is prohibited. This is not a “hopelessly indeterminate”\nstatute that leaves everyone to guess what conduct is legal and\nwhat conduct is proscribed.4 The statute, as construed by\n\n\n4\n We recognize that a liability standard turning on the regularity of a\nparticular activity can in some instances present a vagueness problem. See\nWhatley v. Zatecky, 833 F.3d 762 (7th Cir. 2016) (finding impermissibly vague\nstatute specifying enhanced sentence for individual possessing controlled\nsubstance within 1000 feet of “youth program center,” defined as any\nbuilding that provides youth-oriented programs or services “ on a regular\nbasis”). In contrast to Whatley, the statute at issue here is not a strict-liability\nprovision, and one’s liability under section 922(g)(3) turns on the regularity\nof one’s own conduct rather than the activity occurring in a building that\nmay exhibit no indicia of what programs and services are provided therein\nand how often. One who uses a controlled substance necessarily knows\nhow often he does so. And whatever doubt there might be as to when one’s\ndrug use becomes regular, Cook as a daily user of marijuana over the\n (continued...)\n\fNo. 18-1343 15\n\nYancey, does incorporate a qualitative liability standard, and\none can posit, as Cook does, hypothetical scenarios which\npresent close questions as to whether an individual’s use of a\ncontrolled substance is unlawful, whether it qualifies as\nregular and ongoing, and/or whether that use is sufficiently\ncontemporaneous with his or her possession of a firearm. But\nin contrast with the residual clause, there is no judicial history\nof courts struggling to appreciate what particular conduct\nCongress meant to reach with section 922(g)(3) or to apply the\nstatutory terms to varying sets of facts. The uniform rejection\nof as-applied vagueness challenges to section 922(g)(3) by itself\nsuggests that it is not anything like the sort of problematic\nstatute the Court confronted in Johnson. See United States v.\nBramer, 832 F.3d 908, 909–10 (8th Cir. 2016) (per curiam); United\nStates v. Edwards, 540 F.3d 1156, 1162 (10th Cir. 2008); United\nStates v. Patterson, 431 F.3d 832, 836 (5th Cir. 2005); United States\nv. Purdy, supra n.4, 264 F.3d at 812. And simply because it may\nsometimes be difficult to determine if an individual’s drug use\nmeets section 922(g)(3)’s standard for liability does not signify\nthat the statute is impermissibly vague, given that there is no\ndoubt as to the essence of what the statute forbids: the posses-\nsion of a firearm by one who is engaged in the regular and\nongoing use of a controlled substance other than as prescribed\n\n\n\n4\n (...continued)\ncourse of a decade cannot reasonably claim to have been in doubt as to\nwhether his use qualified as regular. See United States v. Purdy, 264 F.3d 809,\n812 (9th Cir. 2001) (“Purdy’s [regular, years-long] drug use … was sufficient\nto put him on notice that he fell within the statutory definition of ‘unlawful\n[drug] user.’”).\n\f16 No. 18-1343\n\nby a doctor. See Williams, supra, 553 U.S. at 306, 128 S. Ct. at\n1846.\n For these reasons, we are not convinced that Cook is\nentitled to mount a facial vagueness challenge to section\n922(g)(3). Johnson did not alter the general rule that a defendant\nwhose conduct is clearly prohibited by a statute cannot be the\none to make a facial vagueness challenge. United States v.\nWestbrooks, 858 F.3d 317, 325–26 (5th Cir. 2017) (collecting\ncases), cert. granted & judgment vacated on other grounds, 138\nS. Ct. 1323 (2018). Cook’s conduct, if anything, undoubtedly\nfalls within the obvious core of conduct proscribed by the\nstatute. Per his statement at the police station, he had been\nusing marijuana daily for almost ten years and he had smoked\ntwo blunts on the day of his arrest; and the police officers who\nstopped his vehicle and took him into custody noted a strong\nodor of marijuana emanating from the interior and that Cook\nhimself reeked of the substance. These facts no doubt explain\nwhy Cook has declined to pursue an as-applied vagueness\nchallenge to section 922(g)(3): it would surely fail. See United\nStates v. Jackson, 280 F.3d 403, 406 (4th Cir. 2002) (addressing\nfacts nearly identical to those presented here) (“While we do\nnot doubt that the exact reach of the statute is not easy to\ndefine, we agree with the government that this is not a border-\nline case. … Given the evidence, Jackson violated the plain\nmeaning of the statute.”).\n Cook’s attempt to challenge section 922(g)(3) as facially\nvague fails for all of the reasons we have discussed, and\nbecause he asserts no as-applied challenge to the statute, we\nreject his contention that the statute is inconsistent with his due\nprocess rights.\n\fNo. 18-1343 17\n\nB. Second Amendment\n Cook agrees that Yancey forecloses this challenge to section\n922(g)(3). Yancey, as noted, held that there was a substantial\nrelationship between the government’s legitimate interest in\npreventing violent crime and the statute’s ban on gun posses-\nsion by unlawful drug users. 621 F.3d at 683–87. Although\nCook asserts that Yancey was wrongly decided, he offers us no\nreal reason to reconsider our precedent on this point. As the\nlaw is settled in this circuit, we reject his Second Amendment\nobjection to the statute.\nC. Jury Instruction\n Cook argues finally that the district court did not properly\ninstruct the jury as to the elements of his offense. As we noted\nin our summary of the proceedings below, the court advised\nthe jury that “[t]he defendant was an unlawful user of mari-\njuana if he used marijuana on a regular and ongoing basis for\na period of time that began before and continued through the\ndate of the offense.” R. 44 at 8; R. 56 at 70–71 (emphasis\nomitted). The court added that Cook need not have been under\nthe influence of marijuana when he possessed a firearm, nor\nwas the government required to prove that he used marijuana\non any particular date or within a specified number of days of\nthe offense. (Recall that Cook had rejected the government’s\noffer to add language that use of marijuana on a single occa-\nsion was insufficient to establish unlawful drug use.) Cook\ncontends that the instruction as given was erroneous because\n(a) it was not grounded in the language of section 922(g)(3);\n(b) it was not consistent with Yancey’s holding as to who\nconstitutes an unlawful drug user; (c) the instruction was\n\f18 No. 18-1343\n\ninternally inconsistent; and (d) it foreclosed the defense from\nurging the jurors to use their own understanding of “unlawful\nuser” in assessing Cook’s conduct. None of these arguments is\npersuasive.\n The instruction was grounded in the language of the statute\nin that it endeavored, consistent with the case law regarding\nsection 922(g)(3), to define for the jury who constitutes an\nunlawful drug user. The statute itself does not define “unlaw-\nful drug user.” As discussed, this court in Yancey concluded\nthat an unlawful drug user is one who regularly uses a\ncontrolled substance, other than as prescribed by a physician,\ncontemporaneously with possessing a firearm. 621 F.3d at 682,\n687. In doing so, we acted in accord with other circuits which\nhave concluded that the statute’s reach is limited by two key\nrequirements: (1) regularity of drug use (2) that is sufficiently\ncontemporaneous with the possession of a firearm. See id.\n(collecting cases). That these are limits imposed on the offense\nby the judiciary rather than the face of the statute does not\nrender them invalid. See United States v. Lanier, 520 U.S. 259,\n266, 117 S. Ct. 1219, 1225 (1997) (“clarity at the requisite level\nmay be supplied by judicial gloss on an otherwise uncertain\nstatute”) (collecting cases); Skilling, supra, 561 U.S. at 405–06,\n130 S. Ct. at 2929–30 (before striking down a federal statute as\nvague courts will first consider if it is subject to a limiting\nconstruction that avoids vagueness); id. at 409 n.43, 130 S. Ct.\nat 2931 n.43 (“cases ‘paring down’ federal statutes to avoid\nconstitutional shoals are legion”). The district court appropri-\nately looked to Yancey’s gloss on the statute in defining\n“unlawful drug user” for the jury.\n\fNo. 18-1343 19\n\n Nor was the instruction inconsistent with Yancey. Cook\nsuggests that Yancey defined “unlawful user” of drugs to mean\neither one who is addicted to controlled substances or one who\nhas simply used them within the past year, and that the\nreference to “regular and ongoing” drug use in the district\ncourt’s instruction is both broader than addiction and narrower\nthan use within the past year. But Cook’s reading of Yancey is\nnot a faithful reading of the court’s opinion. The opinion makes\nclear that section 922(g)(3) requires regular or habitual drug use,\n621 F.3d at 682, that is contemporaneous with the possession\nof a firearm, id. at 687. Nowhere in our decision did we suggest\nthat a single or occasional, irregular use of a controlled\nsubstance within a year of the gun possession was sufficient to\nmeet these criteria. Nor did we indicate that regular or habitual\nuse necessarily equates with addiction. The instruction given\nhere was fully consistent with Yancey’s requirements: the term\n“regular” connotes a pattern of repeated drug use (be it\nvolitional or as the result of an addiction), and “ongoing”\nconnotes the requisite temporal nexus with possession of the\ngun.\n The instruction was also internally consistent. Cook’s\ncontention to the contrary focuses on the fact that the instruc-\ntion advised the jury, on the one hand, that his marijuana use\nmust have “beg[u]n before and continued through the date of\nthe charged offense” but, on the other hand, that he need not\nhave “used marijuana on any particular day, or within a\ncertain number of days of when he committed the charged\noffense.” These portions of the instruction were not at odds\nwith one another. Consistent with Yancey’s requirement that\nthe defendant’s drug use be contemporaneous with his\n\f20 No. 18-1343\n\npossession of a firearm, the court appropriately advised the\njury that Cook’s marijuana use must have been “ongoing” at\nthe time he was discovered in possession of a gun. But the\nrequirement that the drug use and firearm possession be\ncontemporaneous does not literally mean that the defendant\nmust have been ingesting (or under the influence of) a con-\ntrolled substance at the same time as he possessed the gun. The\nstatute, after all, prohibits firearm possession by a drug user,\nnot simply possession during drug use. So long as the defen-\ndant was still engaged in the regular use of a drug at the time\nof his firearm possession, it is not necessary to show that he\nused the drug on the day of his firearm possession, the day\nbefore, or within any particular number of days of the posses-\nsion. Thus, a person who routinely uses marijuana on week-\nends may violate section 922(g)(3) by possessing a firearm on\na Tuesday or Wednesday, because his possession of the gun is\ncontemporaneous with his ongoing pattern of drug use. The\ninstruction appropriately and coherently advised the jury on\nthese points.\n Finally, we are no more persuaded than the district judge\nwas that the instruction should have left it to the jurors to\nconsult their own collective sense of who constitutes an\n“unlawful user” of marijuana. Yancey establishes the relevant\nparameters on this point, and the district court was required to\nconvey those parameters to the jury to guide its decisionmak-\ning, which Judge Peterson did admirably.\n That said, our holding should not be construed to foreclose\nalternate versions of the “unlawful user” instruction. The Sixth\nand Eighth Circuits, for example, have promulgated instruc-\ntions with slightly different language. See MANUAL OF MODEL\n\fNo. 18-1343 21\n\nCRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT COURTS OF THE\nEIGHTH CIRCUIT § 6.18.922B, at 291–94 (2017); United States v.\nBurchard, 580 F.3d 341, 352 (6th Cir. 2009). Although the\narguments in this court and in the court below reflect some\nanticipation that we might settle upon our own preferred\nversion of the instruction in this appeal, we respectfully decline\nto do so. As the foregoing discussion makes clear, we find no\nfault with the particular instruction that Judge Peterson gave\nto the jury, and we need not go farther than that to resolve\nCook’s appeal. The task of drafting a model instruction, we\nbelieve, is better left to our Circuit’s Pattern Criminal Jury\nInstruction Committee, which has a membership that includes\npractitioners as well as judges and which can solicit and\nincorporate comments on any proposed instruction from the\nbar at large. We shall invite the Committee to consider a\npattern instruction for a section 922(g)(3) charge, including but\nnot limited to the issue of who constitutes an “unlawful user”\nof a controlled substance for purposes of this statute.\n III.\n For all of the foregoing reasons, we AFFIRM Cook’s\nconviction. We commend everyone involved in the briefing\nand arguing of this case, along with Judge Peterson and\nMagistrate Judge Crocker for their thorough and careful\nhandling of the case below. Their dedication and hard work\nhave greatly aided this court’s deliberation and resolution of\nthe appeal.\n[END_CASE]", "role": "user" } ]
4,585,329		United States v. Derrick Phillips	2019-01-28	18-1372	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before WOOD, Chief Judge, and EASTERBROOK and KANNE, Circuit Judges.", "parties": "", "opinions": [{"author": "Diane Pamela Wood", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-1372\nUNITED STATES OF AMERICA,\n Plaintiff-Appellee,\n v.\n\nDERRICK PHILLIPS,\n Defendant-Appellant.\n ____________________\n\n Appeal from the United States District Court for the\n Central District of Illinois.\n No. 03-CR-30019—Sue E. Myerscough, Judge.\n ____________________\n\n ARGUED NOVEMBER 6, 2018 — DECIDED JANUARY 28, 2019\n ____________________\n\n Before WOOD, Chief Judge, and EASTERBROOK and KANNE,\nCircuit Judges.\n WOOD, Chief Judge. In this appeal, Derrick Phillips is chal-\nlenging the district court’s decision to revoke his supervised\nrelease. He argues that the drug evidence used against him\nwas the fruit of an unconstitutional search and should have\nbeen excluded. Guided by the Supreme Court’s opinion in\nPennsylvania Board of Probation and Parole v. Scott, 524 U.S. 357\n(1998), which held that the exclusionary rule does not apply\n\f2 No. 18-1372\n\nto state parole-revocation hearings, the district court ruled\nthat the exclusionary rule was similarly inappropriate for su-\npervised-release-revocation hearings. The court then re-\nviewed the evidence presented by the government and con-\ncluded that Phillips’s supervised release should be revoked\nand that he should be sentenced to 36 months’ imprisonment.\nBefore this court, Phillips contests only the district court’s rul-\ning on the exclusionary rule issue. We affirm.\n In 2010 Phillips began serving an eight-year term of super-\nvised release stemming from a 2003 conviction for possession\nof cocaine base with intent to distribute. Phillips completed\nseven years of his term largely without incident. But on Octo-\nber 4, 2017, police officers in Quincy, Illinois, stopped him as\nhe drove his car out of the parking lot of the town’s Amtrak\nstation. After a dog alerted the officers that drugs might be\npresent in the car, they conducted a search, discovered a pack-\nage containing approximately 196 grams of heroin, and ar-\nrested Phillips for possession with intent to distribute. The\nnext month, Phillips’s probation officer filed a petition to re-\nvoke his supervised release based on his violation of the con-\ndition that he not commit any crimes while on release.\n In the district court, Phillips moved to suppress the evi-\ndence seized from his car. He alleged that the putative traffic\nviolation that served as the basis of the stop was not, in fact, a\nviolation of any traffic law at all. Accordingly, he argued, the\npolice lacked probable cause for the stop and the resulting ev-\nidence should be suppressed. The district court did not reach\nthe merits of this argument because it concluded that the rea-\nsoning in Scott left no room for the application of the exclu-\nsionary rule to supervised-release-revocation hearings. We\nagree with that ruling.\n\fNo. 18-1372 3\n\n As the district court noted, two of the Supreme Court’s ra-\ntionales for declining to extend the exclusionary rule to the\nparole context “equally appl[y] to hearings for the revocation\nof supervised release.” First, the Court expressed concern in\nScott that the exclusionary rule would “alter the traditionally\nflexible, administrative nature of parole revocation proceed-\nings.” 524 U.S. at 364. Phillips contends that certain features\nof hearings for the revocation of supervised release make\nthem more adversarial and trial-like than is true for parole\nhearings. These include the statutory right to counsel that de-\nfendants enjoy pursuant to Federal Rule of Criminal Proce-\ndure 32.1 and the requirement that defendants make specific\nobjections in order to preserve them for appellate review, see\nUnited States v. Raney, 797 F.3d 454, 462 (7th Cir. 2015).\n We can assume that Phillips is correct to observe that the\nSupreme Court’s description of parole revocation hearings as\n“nonadversarial,” Scott, 524 U.S. at 366, is an imperfect fit for\nsupervised-release-revocation hearings (and for that matter,\nparole hearings). But the Court was well aware that the pa-\nrole-revocation procedures are a part of the overall criminal\njustice process. And there is no escaping the fact that a hear-\ning to determine whether supervised release should be re-\nvoked is substantially closer in form and substance to a hear-\ning focusing on parole revocation than it is to a criminal trial.\nThe Court emphasized in Scott that it has “repeatedly de-\nclined to extend the exclusionary rule to proceedings other\nthan criminal trials.” 524 U.S. at 363. In other non-criminal-\ntrial procedural contexts that have adversarial qualities and\ncarry significant risks for defendants, the Court has found\nthat the exclusionary rule is not worth the “substantial social\ncosts” that would accompany it. Id., quoting United States v.\nLeon, 468 U.S. 897, 907 (1984). See I.N.S. v. Lopez-Mendoza, 468\n\f4 No. 18-1372\n\nU.S. 1032 (1984) (holding the exclusionary rule inapplicable to\ndeportation proceedings); United States v. Janis, 428 U.S. 433\n(1976) (holding the exclusionary rule inapplicable to civil tax\nproceedings). Unless and until the Supreme Court reconsid-\ners this line of cases, we are not free to extend the exclusionary\nrule to hearings for the revocation of supervised release.\n Second, the Scott Court expressed skepticism about the\nlikelihood that the exclusionary rule would provide any\nadded deterrence of unlawful police behavior if it were to be\navailable in parole-revocation hearings, “because application\nof the rule in the criminal trial already provides significant\ndeterrence of unconstitutional searches.” Scott, 524 U.S. at 364.\nPhillips suggests that this is not so in the supervised release\ncontext, given that the government has (and often uses) the\noption to pursue revocation in lieu of a new prosecution. Thus,\nhe argues, the underlying police conduct may go unchal-\nlenged in any forum. But the same option exists for parole-\nrevocation hearings. Statistics indicate that there are more\nthan 750,000 people on state parole, and another 137,000 on\nfederal supervised release. See Probation and Parole in the\nUnited States, 2016, Bureau of Justice Statistics,\nhttps://www.bjs.gov/content/pub/pdf/ppus16.pdf (2016 state\nparole population of 760,392); Post-Conviction Supervision – Ju-\ndicial Business 2017, United States Courts,\nhttp://www.uscourts.gov/statistics-reports/post-conviction-\nsupervision-judicial-business-2016 (2016 federal supervisee\npopulation of 137,410). In both instances, when the reason for\nrevocation is the commission of a new crime, the prosecuting\nauthority has the option to revoke a defendant’s parole or su-\npervised release rather than pursue a new case. If the Su-\npreme Court found the added deterrence benefits insufficient\nto justify the exclusionary rule in a parole hearing, logic\n\fNo. 18-1372 5\n\ncompels the conclusion that the same result must apply for\nsupervised release.\n That is enough to dispose of Phillips’s appeal. We add,\nhowever, that his position would require us seriously to un-\ndermine our own circuit precedent and to break from the uni-\nform consensus of our sister circuits. We have long held that\nthe exclusionary rule does not apply at sentencing. United\nStates v. Brimah, 214 F.3d 854 (7th Cir. 2000). And the Supreme\nCourt has held that in the context of supervised release,\n“postrevocation penalties relate to the original offense,” Johnson\nv. United States, 529 U.S. 694, 701 (2000) (emphasis added). See\nalso United States v. Boultinghouse, 784 F.3d 1163, 1171 (7th Cir.\n2015) (noting that “a revocation proceeding … focuses on the\nmodification of a sentence already imposed and implicates\nthe conditional (rather than absolute) liberty that the defend-\nant enjoys as a result of that sentence”). It is difficult to see\nhow we could continue to find the exclusionary rule inappro-\npriate at the imposition of the initial sentence and yet to apply\nthe rule in downstream hearings aimed at modifying that sen-\ntence.\n Phillips argues that as a practical reality, when judges de-\ncide whether to revoke supervised release and (if so) how\nmuch prison time to impose, they are more focused on the\nnew offense than on the underlying crime of conviction. But\nthey are entitled to take the entire record into account at the\ntime of revocation, not simply the facts as they existed at the\ntime of the original sentence. That appears to be what hap-\npened for Phillips when the judge mentioned the ongoing\n“heroin epidemic” as a justification for her sentence. And the\nfact remains that as a legal matter, the Supreme Court has\nmade crystal clear that revocation relates back to, and is a\n\f6 No. 18-1372\n\nfunction of, the sentence for the original offense. Ruling for\nPhillips would therefore call Brimah into question. As Phillips\nacknowledges, his position would also put us in direct con-\nflict with every other court of appeals to consider the ques-\ntion. See United States v. Hebert, 201 F.3d 1103, 1104 (9th Cir.\n2000) (holding exclusionary rule inapplicable to supervised\nrelease); United States v. Armstrong, 187 F.3d 392, 394 (4th Cir.\n1999) (same); see also United States v. Charles, 531 F.3d 637, 640\n(8th Cir. 2008) (holding the exclusionary rule inapplicable to\nsupervised release in the absence of a showing of police har-\nassment); United States v. Montez, 952 F.2d 854, 857 (5th Cir.\n1992) (same). We decline to create such a split, nor need we\naddress the exceptions contemplated by the Fifth and Eighth\nCircuits, as there has been no showing of harassment in this\ncase.\n Phillips suggested at oral argument that the main purpose\nof this appeal was to preserve this issue for Supreme Court\nreview. That he has done. But until the Supreme Court ad-\ndresses the point, his arguments in this court are foreclosed.\nThe judgment of the district court is\n\n\n AFFIRMED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4362582/", "author_raw": "Diane Pamela Wood"}]}	WOOD	EASTERBROOK	KANNE	1		{"WOOD": ", Chief", "EASTERBROOK": ", Circuit", "KANNE": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4585329/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: United States v. Derrick Phillips\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-28\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-1372\nUNITED STATES OF AMERICA,\n Plaintiff-Appellee,\n v.\n\nDERRICK PHILLIPS,\n Defendant-Appellant.\n ____________________\n\n Appeal from the United States District Court for the\n Central District of Illinois.\n No. 03-CR-30019—Sue E. Myerscough, Judge.\n ____________________\n\n ARGUED NOVEMBER 6, 2018 — DECIDED JANUARY 28, 2019\n ____________________\n\n Before WOOD, Chief Judge, and EASTERBROOK and KANNE,\nCircuit Judges.\n WOOD, Chief Judge. In this appeal, Derrick Phillips is chal-\nlenging the district court’s decision to revoke his supervised\nrelease. He argues that the drug evidence used against him\nwas the fruit of an unconstitutional search and should have\nbeen excluded. Guided by the Supreme Court’s opinion in\nPennsylvania Board of Probation and Parole v. Scott, 524 U.S. 357\n(1998), which held that the exclusionary rule does not apply\n\f2 No. 18-1372\n\nto state parole-revocation hearings, the district court ruled\nthat the exclusionary rule was similarly inappropriate for su-\npervised-release-revocation hearings. The court then re-\nviewed the evidence presented by the government and con-\ncluded that Phillips’s supervised release should be revoked\nand that he should be sentenced to 36 months’ imprisonment.\nBefore this court, Phillips contests only the district court’s rul-\ning on the exclusionary rule issue. We affirm.\n In 2010 Phillips began serving an eight-year term of super-\nvised release stemming from a 2003 conviction for possession\nof cocaine base with intent to distribute. Phillips completed\nseven years of his term largely without incident. But on Octo-\nber 4, 2017, police officers in Quincy, Illinois, stopped him as\nhe drove his car out of the parking lot of the town’s Amtrak\nstation. After a dog alerted the officers that drugs might be\npresent in the car, they conducted a search, discovered a pack-\nage containing approximately 196 grams of heroin, and ar-\nrested Phillips for possession with intent to distribute. The\nnext month, Phillips’s probation officer filed a petition to re-\nvoke his supervised release based on his violation of the con-\ndition that he not commit any crimes while on release.\n In the district court, Phillips moved to suppress the evi-\ndence seized from his car. He alleged that the putative traffic\nviolation that served as the basis of the stop was not, in fact, a\nviolation of any traffic law at all. Accordingly, he argued, the\npolice lacked probable cause for the stop and the resulting ev-\nidence should be suppressed. The district court did not reach\nthe merits of this argument because it concluded that the rea-\nsoning in Scott left no room for the application of the exclu-\nsionary rule to supervised-release-revocation hearings. We\nagree with that ruling.\n\fNo. 18-1372 3\n\n As the district court noted, two of the Supreme Court’s ra-\ntionales for declining to extend the exclusionary rule to the\nparole context “equally appl[y] to hearings for the revocation\nof supervised release.” First, the Court expressed concern in\nScott that the exclusionary rule would “alter the traditionally\nflexible, administrative nature of parole revocation proceed-\nings.” 524 U.S. at 364. Phillips contends that certain features\nof hearings for the revocation of supervised release make\nthem more adversarial and trial-like than is true for parole\nhearings. These include the statutory right to counsel that de-\nfendants enjoy pursuant to Federal Rule of Criminal Proce-\ndure 32.1 and the requirement that defendants make specific\nobjections in order to preserve them for appellate review, see\nUnited States v. Raney, 797 F.3d 454, 462 (7th Cir. 2015).\n We can assume that Phillips is correct to observe that the\nSupreme Court’s description of parole revocation hearings as\n“nonadversarial,” Scott, 524 U.S. at 366, is an imperfect fit for\nsupervised-release-revocation hearings (and for that matter,\nparole hearings). But the Court was well aware that the pa-\nrole-revocation procedures are a part of the overall criminal\njustice process. And there is no escaping the fact that a hear-\ning to determine whether supervised release should be re-\nvoked is substantially closer in form and substance to a hear-\ning focusing on parole revocation than it is to a criminal trial.\nThe Court emphasized in Scott that it has “repeatedly de-\nclined to extend the exclusionary rule to proceedings other\nthan criminal trials.” 524 U.S. at 363. In other non-criminal-\ntrial procedural contexts that have adversarial qualities and\ncarry significant risks for defendants, the Court has found\nthat the exclusionary rule is not worth the “substantial social\ncosts” that would accompany it. Id., quoting United States v.\nLeon, 468 U.S. 897, 907 (1984). See I.N.S. v. Lopez-Mendoza, 468\n\f4 No. 18-1372\n\nU.S. 1032 (1984) (holding the exclusionary rule inapplicable to\ndeportation proceedings); United States v. Janis, 428 U.S. 433\n(1976) (holding the exclusionary rule inapplicable to civil tax\nproceedings). Unless and until the Supreme Court reconsid-\ners this line of cases, we are not free to extend the exclusionary\nrule to hearings for the revocation of supervised release.\n Second, the Scott Court expressed skepticism about the\nlikelihood that the exclusionary rule would provide any\nadded deterrence of unlawful police behavior if it were to be\navailable in parole-revocation hearings, “because application\nof the rule in the criminal trial already provides significant\ndeterrence of unconstitutional searches.” Scott, 524 U.S. at 364.\nPhillips suggests that this is not so in the supervised release\ncontext, given that the government has (and often uses) the\noption to pursue revocation in lieu of a new prosecution. Thus,\nhe argues, the underlying police conduct may go unchal-\nlenged in any forum. But the same option exists for parole-\nrevocation hearings. Statistics indicate that there are more\nthan 750,000 people on state parole, and another 137,000 on\nfederal supervised release. See Probation and Parole in the\nUnited States, 2016, Bureau of Justice Statistics,\nhttps://www.bjs.gov/content/pub/pdf/ppus16.pdf (2016 state\nparole population of 760,392); Post-Conviction Supervision – Ju-\ndicial Business 2017, United States Courts,\nhttp://www.uscourts.gov/statistics-reports/post-conviction-\nsupervision-judicial-business-2016 (2016 federal supervisee\npopulation of 137,410). In both instances, when the reason for\nrevocation is the commission of a new crime, the prosecuting\nauthority has the option to revoke a defendant’s parole or su-\npervised release rather than pursue a new case. If the Su-\npreme Court found the added deterrence benefits insufficient\nto justify the exclusionary rule in a parole hearing, logic\n\fNo. 18-1372 5\n\ncompels the conclusion that the same result must apply for\nsupervised release.\n That is enough to dispose of Phillips’s appeal. We add,\nhowever, that his position would require us seriously to un-\ndermine our own circuit precedent and to break from the uni-\nform consensus of our sister circuits. We have long held that\nthe exclusionary rule does not apply at sentencing. United\nStates v. Brimah, 214 F.3d 854 (7th Cir. 2000). And the Supreme\nCourt has held that in the context of supervised release,\n“postrevocation penalties relate to the original offense,” Johnson\nv. United States, 529 U.S. 694, 701 (2000) (emphasis added). See\nalso United States v. Boultinghouse, 784 F.3d 1163, 1171 (7th Cir.\n2015) (noting that “a revocation proceeding … focuses on the\nmodification of a sentence already imposed and implicates\nthe conditional (rather than absolute) liberty that the defend-\nant enjoys as a result of that sentence”). It is difficult to see\nhow we could continue to find the exclusionary rule inappro-\npriate at the imposition of the initial sentence and yet to apply\nthe rule in downstream hearings aimed at modifying that sen-\ntence.\n Phillips argues that as a practical reality, when judges de-\ncide whether to revoke supervised release and (if so) how\nmuch prison time to impose, they are more focused on the\nnew offense than on the underlying crime of conviction. But\nthey are entitled to take the entire record into account at the\ntime of revocation, not simply the facts as they existed at the\ntime of the original sentence. That appears to be what hap-\npened for Phillips when the judge mentioned the ongoing\n“heroin epidemic” as a justification for her sentence. And the\nfact remains that as a legal matter, the Supreme Court has\nmade crystal clear that revocation relates back to, and is a\n\f6 No. 18-1372\n\nfunction of, the sentence for the original offense. Ruling for\nPhillips would therefore call Brimah into question. As Phillips\nacknowledges, his position would also put us in direct con-\nflict with every other court of appeals to consider the ques-\ntion. See United States v. Hebert, 201 F.3d 1103, 1104 (9th Cir.\n2000) (holding exclusionary rule inapplicable to supervised\nrelease); United States v. Armstrong, 187 F.3d 392, 394 (4th Cir.\n1999) (same); see also United States v. Charles, 531 F.3d 637, 640\n(8th Cir. 2008) (holding the exclusionary rule inapplicable to\nsupervised release in the absence of a showing of police har-\nassment); United States v. Montez, 952 F.2d 854, 857 (5th Cir.\n1992) (same). We decline to create such a split, nor need we\naddress the exceptions contemplated by the Fifth and Eighth\nCircuits, as there has been no showing of harassment in this\ncase.\n Phillips suggested at oral argument that the main purpose\nof this appeal was to preserve this issue for Supreme Court\nreview. That he has done. But until the Supreme Court ad-\ndresses the point, his arguments in this court are foreclosed.\nThe judgment of the district court is\n\n\n AFFIRMED.\n[END_CASE]", "role": "user" } ]
4,585,416		Juan Cervantes v. Ardagh Group	2019-01-29	17-3536	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before WOOD, Chief Judge, and RIPPLE, and BARRETT, Circuit Judges.", "parties": "", "opinions": [{"author": "Kenneth Francis Ripple", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________ \nNo. 17‐3536 \nJUAN CERVANTES, \n Plaintiff‐Appellant, \n v. \n\nARDAGH GROUP, \n Defendant‐Appellee. \n ____________________ \n\n Appeal from the United States District Court for the \n Northern District of Illinois, Eastern Division. \n No. 1:16‐cv‐11080 — Ronald A. Guzmán, Judge. \n ____________________ \n\n ARGUED DECEMBER 11, 2018 — DECIDED JANUARY 29, 2019 \n ____________________ \n\n Before WOOD, Chief Judge, and RIPPLE, and BARRETT, \nCircuit Judges. \n RIPPLE, Circuit Judge. Juan Cervantes brought this action \nagainst his employer, Ardagh Group (“Ardagh”), alleging \nviolations of Title VII of the Civil Rights Act of 1964, 42 \nU.S.C. § 2000e et seq., and the Illinois Human Rights Act, 775 \nILCS 5/1‐101 et seq. (“IHRA”). The complaint asserted that \nArdagh had refused to promote him, had issued him per‐\nformance warnings, and had demoted him because of his \n\f2 No. 17‐3536 \n\nrace and national origin and in retaliation for previous com‐\nplaints about discrimination and harassment. The district \ncourt granted summary judgment in favor of Ardagh. \n The district court’s decision is correct. Mr. Cervantes did \nnot exhaust his administrative remedies for his discrimina‐\ntion claims. His retaliation claim also must fail because there \nis no evidence of a causal connection between any protected \nactivity by Mr. Cervantes and an adverse employment action \nby Ardagh. Accordingly, we affirm the judgment of the dis‐\ntrict court. \n I \n BACKGROUND \n Mr. Cervantes began his career at Ardagh in 1991 as a \npallet loader. He was promoted to fork lift driver in 1998 \nand to electro‐mechanic in 2000. His complaint followed an \nincident that took place in 2015. Taking the facts in the light \n 1\nmost favorable to Mr. Cervantes, on June 20, 2015, after \ncompleting his shift, he remained at the Ardagh facility to \nassist his father, a fellow Ardagh employee, with fixing a \nmachine. During this second shift, supervisor Katina Stewart \nattempted to call Mr. Cervantes on his radio, but could not \nreach him. When Stewart located Mr. Cervantes in the facili‐\nty, he explained that he had not responded to the radio calls \nbecause he was not working a second shift; he was only stay‐\n \n1 The relevant facts are contested. On review of the district court’s grant \n\nof summary judgment for Ardagh, we resolve any disputed facts in fa‐\nvor of the non‐moving party, Mr. Cervantes, and “draw[] all reasonable \ninferences from the facts in his favor.” Dietchweiler v. Lucas, 827 F.3d 622, \n627 (7th Cir. 2016). \n\fNo. 17‐3536 3\n\ning past his shift to help his father. Stewart informed \nMr. Cervantes that if he was not accepting assignments for \nthe second shift, he must leave the facility. He eventually \ncomplied. Stewart reported the incident, and Mr. Cervantes \nwas written up for insubordination and temporarily sus‐\npended. Following an investigation, Ardagh demoted \nMr. Cervantes from electro‐mechanic to forklift driver. \n On September 3, 2015, Mr. Cervantes filed a charge with \nthe Illinois Department of Human Rights (“IDHR”). In the \nsection of the form titled “Discrimination Based On,” Mr. \nCervantes checked only the box for “Retaliation.”2 He did \nnot check the box for race, national origin, or any other basis \nof discrimination. The IDHR commenced an investigation \ninto his allegations, seeking additional information from \nMr. Cervantes and from Ardagh. By March 31, 2016, Mr. \nCervantes had retained counsel, who sent a letter to IDHR \non his behalf in response to the agency’s questions about the \ncharge. On July 13, 2016, the IDHR dismissed Mr. Cervan‐\ntes’s charge, finding a lack of substantial evidence to support \nhis allegations. \n On December 5, 2016, Mr. Cervantes filed a complaint in \nthe district court. He alleged that Ardagh had violated Title \nVII and the IHRA by failing to promote him, issuing him \nperformance warnings, and demoting him based on his race \nand national origin and in retaliation for his previous com‐\nplaints about harassment and discrimination. Ardagh \n\n\n\n \n2 See R.32 at 4 (Mr. Cervantes’s IDHR Charge (Sept. 3, 2015)). \n\f4 No. 17‐3536 \n\nmoved for summary judgment on all claims, and the district \ncourt granted that motion.3 \n The district court first determined that Mr. Cervantes \ncould not proceed on his claims for race and national origin \ndiscrimination because he had failed to exhaust his adminis‐\ntrative remedies and because these allegations were not rea‐\nsonably related to his retaliation charge. The district court \nthen concluded that Mr. Cervantes had failed to state a claim \nfor retaliation because he had not established that he en‐\ngaged in protected activity. He also failed to offer any evi‐\ndence that his supervisors were aware of any complaints he \nraised and therefore did not demonstrate a causal connec‐\ntion between any protected activity and an adverse em‐\nployment action. The district court entered judgment in fa‐\nvor of Ardagh on November 14, 2017, and Mr. Cervantes \ntimely appealed. \n II \n DISCUSSION \n We review the district court’s grant of summary judg‐\nment de novo. Ortiz v. John O. Butler Co., 94 F.3d 1121, 1124 \n(7th Cir. 1996). “We will not resolve factual disputes or \nweigh conflicting evidence,” but “will only determine \nwhether a genuine issue of material fact exists for trial.” Id. \n 4\nAs we noted earlier, this inquiry requires that we “view the \n \n3 In his complaint, Mr. Cervantes also asserted a claim under Illinois \n\nstate law for intentional infliction of emotional distress. The district court \ngranted summary judgment for Ardagh on that claim, and Mr. Cervan‐\ntes does not challenge that ruling in this appeal. \n4 See supra note 1 and accompanying text. \n\fNo. 17‐3536 5\n\nevidence and draw all inferences in a way most favorable to \nthe nonmoving party.” Id. “If the nonmoving party fails to \nestablish the existence of an element essential to his case, one \non which he would bear the burden of proof at trial, sum‐\nmary judgment must be granted to the moving party.” Id. \n A. \n Mr. Cervantes first submits that the district court erred \nwhen it determined that he had not exhausted his adminis‐\ntrative remedies for his claims of discrimination based on \nrace and national origin. We cannot accept this argument. \n In general, a plaintiff can only bring claims under Title \nVII or the IHRA that he has included in the original charge \nfiled with the Equal Employment Opportunity Commission \n(“EEOC”) or the IDHR.5 Sitar v. Indiana Dep’t of Transp., 344 \nF.3d 720, 726 (7th Cir. 2003). This limitation serves two pur‐\nposes. It affords the employer some notice of the conduct \nunderlying the employee’s allegation. It also “affords the \nagency and the employer an opportunity to attempt concilia‐\ntion without resort to the courts.” Rush v. McDonald’s Corp., \n966 F.2d 1104, 1110 (7th Cir. 1992). \n Here, Mr. Cervantes initially filed a charge with the \nIDHR and checked only the box for discrimination based on \nretaliation. He did not check the box for discrimination \nbased on race, national origin, or any other protected charac‐\nteristic. He described the “particulars” of his charge as fol‐\nlows: \n \n5 The EEOC and the IDHR “have a work sharing arrangement providing \n\nthat a charge filed with one is deemed cross‐filed with the other.” \nMcQueen v. City of Chi., 803 F. Supp. 2d 892, 902–03 (N.D. Ill. 2011). \n\f6 No. 17‐3536 \n\n I began my employment with Respondent \n [Ardagh] in or around May 1991. My current \n position is Forklift Driver. A family member \n filed EEOC Charge No. 210‐1998‐00397 against \n Respondent. During my employment, I have \n been subjected to discipline, harassment, and I \n have been demoted. \n I believe I have been discriminated against in \n retaliation, in violation of Title VII of the Civil \n Rights Act of 1964, as amended.6 \n In his complaint, by contrast, he alleged that Ardagh had \nfailed to promote him, had issued him performance warn‐\nings, and had demoted him based on his race and national \norigin. He further asserted that, after completing a four‐year \napprenticeship and working as a “rotating shift mechanic” \nfor several years, “because of his race, the decision makers at \nthe company refused to promote him.”7 He alleged that he \n“had previously complained to his superiors of discrimina‐\ntion and harassment” based on his Hispanic background, \nwhich “led to his superiors issuing poor job performance \nwarnings, about which Cervantes filed grievances with the \nunion because these warnings were retaliatory.”8 He added \nthat “[t]hese superiors were Tom Jones, Maintenance Super‐\nvisor, and Don Spells, Shift Supervisor.”9 \n\n \n6 R.32 at 4. \n\n7 R.39‐4 ¶ 6. \n\n8 Id. ¶ 10. \n\n9 Id. \n\fNo. 17‐3536 7\n\n The district court concluded that the claims of discrimi‐\nnation in Mr. Cervantes’s court complaint were outside the \nscope of his retaliation charge filed with the IDHR. Mr. Cer‐\nvantes contends, however, that his discrimination claims sat‐\nisfy a recognized exception for “claims that are ‘like or rea‐\nsonably related’ to the EEOC charge, and can be reasonably \nexpected to grow out of an EEOC investigation of the charg‐\nes.” Sitar, 344 F.3d at 726 (quoting Jenkins v. Blue Cross Mut. \nHosp. Ins., Inc., 538 F.2d 164, 167 (7th Cir. 1976) (en banc)). As \na general matter, we do not consider a retaliation charge to \nbe reasonably related to a discrimination claim. Id. The \ncharge and the complaint may be reasonably related if, “at a \nminimum,” they “describe the same circumstances and par‐\nticipants.” Conner v. Illinois Dep’t of Natural Res., 413 F.3d 675, \n680 (7th Cir. 2005). \n Mr. Cervantes believes that his discrimination claims in \nthis action are reasonably related to his retaliation charge \nfiled with the IDHR because both involve the same entity \n(Ardagh), the same conduct (his discipline and demotion), \nand the same time frame (his tenure at Ardagh). These simi‐\nlarities occur, however, at far too high a level of generality. \nA simple comparison of his administrative retaliation charge \nand his court discrimination complaint starkly reveals that \nthey arise out of very different conduct in very different time \nperiods. His administrative retaliation charge focuses on \nconduct stemming from the 1998 EEOC charge filed by his \nbrother. Mr. Cervantes’s discrimination complaint alleges \nthat the adverse employment conduct was based on his race \nand his own internal complaints about race and national \norigin discrimination. The allegations in his complaint de‐\nscribe different hostilities that arose at different times, e.g., \nfollowing his apprenticeship, and that involved different in‐\n\f8 No. 17‐3536 \n\ndividuals, namely Jones and Spells. These allegations never \nwere mentioned in the charge. The administrative retaliation \ncharge therefore never gave Ardagh reasonable notice of \nMr. Cervantes’s discrimination claims, nor did it provide \nArdagh and the agency an opportunity to resolve his con‐\ncerns before they ripened into this suit. \n Mr. Cervantes further submits that the March 31, 2016 \nletter from his attorney to the IDHR in response to an in‐\nquiry from the agency expanded the scope of his charge. In \nthe final section of the letter, titled “On the Basis of Retalia‐\ntion,” his counsel wrote that, “After completing his 4 year \napprenticeship program and working for several years as a \nrotating shift mechanic,” Mr. Cervantes “desired to be \nplaced on a straight day shift. Yet, because of his race, the \ndecision makers at the company refused to promote him.”10 \nHe added that Mr. Cervantes’s “family is of Hispanic back‐\nground, and he felt that this was the reason he was not being \npromoted at [Ardagh], despite being as qualified—or more \nso—than those who were in fact being promoted.”11 \n Even if we were to assume that this letter should have \nalerted the agency investigators to the possibility of discrim‐\nination, we must remember that his counsel submitted the \nletter to the IDHR ex parte; it therefore did not provide \nArdagh with any notice of Mr. Cervantes’s potential dis‐\ncrimination claims. See O’Rourke v. Continental Cas. Co., 983 \nF.2d 94, 97 (7th Cir. 1993) (holding that a follow‐up memo‐\nrandum submitted by plaintiff to the EEOC did not enlarge \n \n10 R.39‐12 ¶ ZZ1. \n\n11 Id. ¶ ZZ4. \n\fNo. 17‐3536 9\n\nthe scope of his charge of discrimination to include a claim \nfor retaliation because, even if his submission “should have \nalerted the EEOC, [it] did nothing to alert the employer”). \nFurthermore, the letter indicates that Mr. Cervantes’s attor‐\nney understood these allegations to be part of a theory of \ndiscrimination based on retaliation, as alleged in the IDHR \ncharge, not a separate theory of discrimination based on race \nand national origin. Where, as here, a plaintiff is assisted by \ncounsel, it is “not unreasonable to require some additional \nspecificity or detail as a condition precedent for permitting” \nthe plaintiff to assert a claim that was not originally included \nin the administrative charge. Rush, 966 F.2d at 1112. \n Accordingly, we must conclude that Mr. Cervantes’s dis‐\ncrimination claims were not within the scope of his retalia‐\ntion charge, and that the district court properly granted \nsummary judgment for Ardagh on those claims. \n B. \n We turn next to Mr. Cervantes’s retaliation claim. To \nstate a claim for retaliation under Title VII, a plaintiff must \n“present evidence of (1) a statutorily protected activity; (2) a \nmaterially adverse action taken by the employer; and (3) a \ncausal connection between the two.” Volling v. Kurtz Para‐\nmedic Servs., Inc., 840 F.3d 378, 383 (7th Cir. 2016) (quoting \nTurner v. The Saloon, Ltd., 595 F.3d 679, 687 (7th Cir. 2010)). \n Mr. Cervantes contends that he presented sufficient evi‐\ndence to state a claim for retaliation. He alleged that he \ncomplained internally at Ardagh about race and national \norigin discrimination and that his supervisors subsequently \ndisciplined and demoted him for those complaints. Howev‐\ner, his deposition testimony clarified that he made his com‐\n\f10 No. 17‐3536 \n\nplaints not to anyone at Ardagh but to the union president \nand that he did not know whether the union president ever \nbrought his concerns to the attention of anyone at Ardagh.12 \nThe district court thus correctly concluded that Mr. Cervan‐\ntes’s retaliation claim fails as a matter of law because he did \nnot allege that he engaged in any protected activity. See, e.g., \nGleason v. Mesirow Fin., Inc., 118 F.3d 1134, 1147 (7th Cir. \n1997) (holding that plaintiff did not engage in statutorily \nprotected activity given that “she did not raise the subject of \nsexual harassment to anyone in authority”). \n Moreover, even if Mr. Cervantes has alleged that he en‐\ngaged in protected activity, his retaliation claim still fails be‐\ncause he conceded that none of his supervisors at Ardagh \nwere aware of his complaints. Therefore, there is no “causal \nconnection” between any protected activity and his disci‐\npline and demotion. See, e.g., King v. Ford Motor Co., 872 F.2d \n833, 842 (7th Cir. 2017) (concluding that plaintiff had “no \nsupport for a claim of retaliation” because she failed to \n“show[] that whoever was responsible for” her reassign‐\nments and denials of overtime “was aware of her protected \nactivity or was involved in the later actions”). \n Finally, Mr. Cervantes maintains that disputed facts, \nsuch as whether he agreed to work the second shift on June \n20, 2015, and whether Ardagh properly trained him, pre‐\nclude summary judgment on his retaliation claim. Because \nany such issues are irrelevant to the undisputed facts that \nMr. Cervantes did not complain about discrimination to an‐\nyone at Ardagh and that his supervisors were not aware of \n\n \n12 See R.44 at 8. \n\fNo. 17‐3536 11\n\nany complaints he may have made to the union, the district \ncourt properly granted summary judgment for Ardagh. \n Conclusion \n For the foregoing reasons, we affirm the judgment of the \ndistrict court. \n AFFIRMED", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4362669/", "author_raw": "Kenneth Francis Ripple"}]}	WOOD	RIPPLE	BARRETT	1		{"WOOD": ", Chief", "RIPPLE": ", Circuit", "BARRETT": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4585416/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Juan Cervantes v. Ardagh Group\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-29\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________ \nNo. 17‐3536 \nJUAN CERVANTES, \n Plaintiff‐Appellant, \n v. \n\nARDAGH GROUP, \n Defendant‐Appellee. \n ____________________ \n\n Appeal from the United States District Court for the \n Northern District of Illinois, Eastern Division. \n No. 1:16‐cv‐11080 — Ronald A. Guzmán, Judge. \n ____________________ \n\n ARGUED DECEMBER 11, 2018 — DECIDED JANUARY 29, 2019 \n ____________________ \n\n Before WOOD, Chief Judge, and RIPPLE, and BARRETT, \nCircuit Judges. \n RIPPLE, Circuit Judge. Juan Cervantes brought this action \nagainst his employer, Ardagh Group (“Ardagh”), alleging \nviolations of Title VII of the Civil Rights Act of 1964, 42 \nU.S.C. § 2000e et seq., and the Illinois Human Rights Act, 775 \nILCS 5/1‐101 et seq. (“IHRA”). The complaint asserted that \nArdagh had refused to promote him, had issued him per‐\nformance warnings, and had demoted him because of his \n\f2 No. 17‐3536 \n\nrace and national origin and in retaliation for previous com‐\nplaints about discrimination and harassment. The district \ncourt granted summary judgment in favor of Ardagh. \n The district court’s decision is correct. Mr. Cervantes did \nnot exhaust his administrative remedies for his discrimina‐\ntion claims. His retaliation claim also must fail because there \nis no evidence of a causal connection between any protected \nactivity by Mr. Cervantes and an adverse employment action \nby Ardagh. Accordingly, we affirm the judgment of the dis‐\ntrict court. \n I \n BACKGROUND \n Mr. Cervantes began his career at Ardagh in 1991 as a \npallet loader. He was promoted to fork lift driver in 1998 \nand to electro‐mechanic in 2000. His complaint followed an \nincident that took place in 2015. Taking the facts in the light \n 1\nmost favorable to Mr. Cervantes, on June 20, 2015, after \ncompleting his shift, he remained at the Ardagh facility to \nassist his father, a fellow Ardagh employee, with fixing a \nmachine. During this second shift, supervisor Katina Stewart \nattempted to call Mr. Cervantes on his radio, but could not \nreach him. When Stewart located Mr. Cervantes in the facili‐\nty, he explained that he had not responded to the radio calls \nbecause he was not working a second shift; he was only stay‐\n \n1 The relevant facts are contested. On review of the district court’s grant \n\nof summary judgment for Ardagh, we resolve any disputed facts in fa‐\nvor of the non‐moving party, Mr. Cervantes, and “draw[] all reasonable \ninferences from the facts in his favor.” Dietchweiler v. Lucas, 827 F.3d 622, \n627 (7th Cir. 2016). \n\fNo. 17‐3536 3\n\ning past his shift to help his father. Stewart informed \nMr. Cervantes that if he was not accepting assignments for \nthe second shift, he must leave the facility. He eventually \ncomplied. Stewart reported the incident, and Mr. Cervantes \nwas written up for insubordination and temporarily sus‐\npended. Following an investigation, Ardagh demoted \nMr. Cervantes from electro‐mechanic to forklift driver. \n On September 3, 2015, Mr. Cervantes filed a charge with \nthe Illinois Department of Human Rights (“IDHR”). In the \nsection of the form titled “Discrimination Based On,” Mr. \nCervantes checked only the box for “Retaliation.”2 He did \nnot check the box for race, national origin, or any other basis \nof discrimination. The IDHR commenced an investigation \ninto his allegations, seeking additional information from \nMr. Cervantes and from Ardagh. By March 31, 2016, Mr. \nCervantes had retained counsel, who sent a letter to IDHR \non his behalf in response to the agency’s questions about the \ncharge. On July 13, 2016, the IDHR dismissed Mr. Cervan‐\ntes’s charge, finding a lack of substantial evidence to support \nhis allegations. \n On December 5, 2016, Mr. Cervantes filed a complaint in \nthe district court. He alleged that Ardagh had violated Title \nVII and the IHRA by failing to promote him, issuing him \nperformance warnings, and demoting him based on his race \nand national origin and in retaliation for his previous com‐\nplaints about harassment and discrimination. Ardagh \n\n\n\n \n2 See R.32 at 4 (Mr. Cervantes’s IDHR Charge (Sept. 3, 2015)). \n\f4 No. 17‐3536 \n\nmoved for summary judgment on all claims, and the district \ncourt granted that motion.3 \n The district court first determined that Mr. Cervantes \ncould not proceed on his claims for race and national origin \ndiscrimination because he had failed to exhaust his adminis‐\ntrative remedies and because these allegations were not rea‐\nsonably related to his retaliation charge. The district court \nthen concluded that Mr. Cervantes had failed to state a claim \nfor retaliation because he had not established that he en‐\ngaged in protected activity. He also failed to offer any evi‐\ndence that his supervisors were aware of any complaints he \nraised and therefore did not demonstrate a causal connec‐\ntion between any protected activity and an adverse em‐\nployment action. The district court entered judgment in fa‐\nvor of Ardagh on November 14, 2017, and Mr. Cervantes \ntimely appealed. \n II \n DISCUSSION \n We review the district court’s grant of summary judg‐\nment de novo. Ortiz v. John O. Butler Co., 94 F.3d 1121, 1124 \n(7th Cir. 1996). “We will not resolve factual disputes or \nweigh conflicting evidence,” but “will only determine \nwhether a genuine issue of material fact exists for trial.” Id. \n 4\nAs we noted earlier, this inquiry requires that we “view the \n \n3 In his complaint, Mr. Cervantes also asserted a claim under Illinois \n\nstate law for intentional infliction of emotional distress. The district court \ngranted summary judgment for Ardagh on that claim, and Mr. Cervan‐\ntes does not challenge that ruling in this appeal. \n4 See supra note 1 and accompanying text. \n\fNo. 17‐3536 5\n\nevidence and draw all inferences in a way most favorable to \nthe nonmoving party.” Id. “If the nonmoving party fails to \nestablish the existence of an element essential to his case, one \non which he would bear the burden of proof at trial, sum‐\nmary judgment must be granted to the moving party.” Id. \n A. \n Mr. Cervantes first submits that the district court erred \nwhen it determined that he had not exhausted his adminis‐\ntrative remedies for his claims of discrimination based on \nrace and national origin. We cannot accept this argument. \n In general, a plaintiff can only bring claims under Title \nVII or the IHRA that he has included in the original charge \nfiled with the Equal Employment Opportunity Commission \n(“EEOC”) or the IDHR.5 Sitar v. Indiana Dep’t of Transp., 344 \nF.3d 720, 726 (7th Cir. 2003). This limitation serves two pur‐\nposes. It affords the employer some notice of the conduct \nunderlying the employee’s allegation. It also “affords the \nagency and the employer an opportunity to attempt concilia‐\ntion without resort to the courts.” Rush v. McDonald’s Corp., \n966 F.2d 1104, 1110 (7th Cir. 1992). \n Here, Mr. Cervantes initially filed a charge with the \nIDHR and checked only the box for discrimination based on \nretaliation. He did not check the box for discrimination \nbased on race, national origin, or any other protected charac‐\nteristic. He described the “particulars” of his charge as fol‐\nlows: \n \n5 The EEOC and the IDHR “have a work sharing arrangement providing \n\nthat a charge filed with one is deemed cross‐filed with the other.” \nMcQueen v. City of Chi., 803 F. Supp. 2d 892, 902–03 (N.D. Ill. 2011). \n\f6 No. 17‐3536 \n\n I began my employment with Respondent \n [Ardagh] in or around May 1991. My current \n position is Forklift Driver. A family member \n filed EEOC Charge No. 210‐1998‐00397 against \n Respondent. During my employment, I have \n been subjected to discipline, harassment, and I \n have been demoted. \n I believe I have been discriminated against in \n retaliation, in violation of Title VII of the Civil \n Rights Act of 1964, as amended.6 \n In his complaint, by contrast, he alleged that Ardagh had \nfailed to promote him, had issued him performance warn‐\nings, and had demoted him based on his race and national \norigin. He further asserted that, after completing a four‐year \napprenticeship and working as a “rotating shift mechanic” \nfor several years, “because of his race, the decision makers at \nthe company refused to promote him.”7 He alleged that he \n“had previously complained to his superiors of discrimina‐\ntion and harassment” based on his Hispanic background, \nwhich “led to his superiors issuing poor job performance \nwarnings, about which Cervantes filed grievances with the \nunion because these warnings were retaliatory.”8 He added \nthat “[t]hese superiors were Tom Jones, Maintenance Super‐\nvisor, and Don Spells, Shift Supervisor.”9 \n\n \n6 R.32 at 4. \n\n7 R.39‐4 ¶ 6. \n\n8 Id. ¶ 10. \n\n9 Id. \n\fNo. 17‐3536 7\n\n The district court concluded that the claims of discrimi‐\nnation in Mr. Cervantes’s court complaint were outside the \nscope of his retaliation charge filed with the IDHR. Mr. Cer‐\nvantes contends, however, that his discrimination claims sat‐\nisfy a recognized exception for “claims that are ‘like or rea‐\nsonably related’ to the EEOC charge, and can be reasonably \nexpected to grow out of an EEOC investigation of the charg‐\nes.” Sitar, 344 F.3d at 726 (quoting Jenkins v. Blue Cross Mut. \nHosp. Ins., Inc., 538 F.2d 164, 167 (7th Cir. 1976) (en banc)). As \na general matter, we do not consider a retaliation charge to \nbe reasonably related to a discrimination claim. Id. The \ncharge and the complaint may be reasonably related if, “at a \nminimum,” they “describe the same circumstances and par‐\nticipants.” Conner v. Illinois Dep’t of Natural Res., 413 F.3d 675, \n680 (7th Cir. 2005). \n Mr. Cervantes believes that his discrimination claims in \nthis action are reasonably related to his retaliation charge \nfiled with the IDHR because both involve the same entity \n(Ardagh), the same conduct (his discipline and demotion), \nand the same time frame (his tenure at Ardagh). These simi‐\nlarities occur, however, at far too high a level of generality. \nA simple comparison of his administrative retaliation charge \nand his court discrimination complaint starkly reveals that \nthey arise out of very different conduct in very different time \nperiods. His administrative retaliation charge focuses on \nconduct stemming from the 1998 EEOC charge filed by his \nbrother. Mr. Cervantes’s discrimination complaint alleges \nthat the adverse employment conduct was based on his race \nand his own internal complaints about race and national \norigin discrimination. The allegations in his complaint de‐\nscribe different hostilities that arose at different times, e.g., \nfollowing his apprenticeship, and that involved different in‐\n\f8 No. 17‐3536 \n\ndividuals, namely Jones and Spells. These allegations never \nwere mentioned in the charge. The administrative retaliation \ncharge therefore never gave Ardagh reasonable notice of \nMr. Cervantes’s discrimination claims, nor did it provide \nArdagh and the agency an opportunity to resolve his con‐\ncerns before they ripened into this suit. \n Mr. Cervantes further submits that the March 31, 2016 \nletter from his attorney to the IDHR in response to an in‐\nquiry from the agency expanded the scope of his charge. In \nthe final section of the letter, titled “On the Basis of Retalia‐\ntion,” his counsel wrote that, “After completing his 4 year \napprenticeship program and working for several years as a \nrotating shift mechanic,” Mr. Cervantes “desired to be \nplaced on a straight day shift. Yet, because of his race, the \ndecision makers at the company refused to promote him.”10 \nHe added that Mr. Cervantes’s “family is of Hispanic back‐\nground, and he felt that this was the reason he was not being \npromoted at [Ardagh], despite being as qualified—or more \nso—than those who were in fact being promoted.”11 \n Even if we were to assume that this letter should have \nalerted the agency investigators to the possibility of discrim‐\nination, we must remember that his counsel submitted the \nletter to the IDHR ex parte; it therefore did not provide \nArdagh with any notice of Mr. Cervantes’s potential dis‐\ncrimination claims. See O’Rourke v. Continental Cas. Co., 983 \nF.2d 94, 97 (7th Cir. 1993) (holding that a follow‐up memo‐\nrandum submitted by plaintiff to the EEOC did not enlarge \n \n10 R.39‐12 ¶ ZZ1. \n\n11 Id. ¶ ZZ4. \n\fNo. 17‐3536 9\n\nthe scope of his charge of discrimination to include a claim \nfor retaliation because, even if his submission “should have \nalerted the EEOC, [it] did nothing to alert the employer”). \nFurthermore, the letter indicates that Mr. Cervantes’s attor‐\nney understood these allegations to be part of a theory of \ndiscrimination based on retaliation, as alleged in the IDHR \ncharge, not a separate theory of discrimination based on race \nand national origin. Where, as here, a plaintiff is assisted by \ncounsel, it is “not unreasonable to require some additional \nspecificity or detail as a condition precedent for permitting” \nthe plaintiff to assert a claim that was not originally included \nin the administrative charge. Rush, 966 F.2d at 1112. \n Accordingly, we must conclude that Mr. Cervantes’s dis‐\ncrimination claims were not within the scope of his retalia‐\ntion charge, and that the district court properly granted \nsummary judgment for Ardagh on those claims. \n B. \n We turn next to Mr. Cervantes’s retaliation claim. To \nstate a claim for retaliation under Title VII, a plaintiff must \n“present evidence of (1) a statutorily protected activity; (2) a \nmaterially adverse action taken by the employer; and (3) a \ncausal connection between the two.” Volling v. Kurtz Para‐\nmedic Servs., Inc., 840 F.3d 378, 383 (7th Cir. 2016) (quoting \nTurner v. The Saloon, Ltd., 595 F.3d 679, 687 (7th Cir. 2010)). \n Mr. Cervantes contends that he presented sufficient evi‐\ndence to state a claim for retaliation. He alleged that he \ncomplained internally at Ardagh about race and national \norigin discrimination and that his supervisors subsequently \ndisciplined and demoted him for those complaints. Howev‐\ner, his deposition testimony clarified that he made his com‐\n\f10 No. 17‐3536 \n\nplaints not to anyone at Ardagh but to the union president \nand that he did not know whether the union president ever \nbrought his concerns to the attention of anyone at Ardagh.12 \nThe district court thus correctly concluded that Mr. Cervan‐\ntes’s retaliation claim fails as a matter of law because he did \nnot allege that he engaged in any protected activity. See, e.g., \nGleason v. Mesirow Fin., Inc., 118 F.3d 1134, 1147 (7th Cir. \n1997) (holding that plaintiff did not engage in statutorily \nprotected activity given that “she did not raise the subject of \nsexual harassment to anyone in authority”). \n Moreover, even if Mr. Cervantes has alleged that he en‐\ngaged in protected activity, his retaliation claim still fails be‐\ncause he conceded that none of his supervisors at Ardagh \nwere aware of his complaints. Therefore, there is no “causal \nconnection” between any protected activity and his disci‐\npline and demotion. See, e.g., King v. Ford Motor Co., 872 F.2d \n833, 842 (7th Cir. 2017) (concluding that plaintiff had “no \nsupport for a claim of retaliation” because she failed to \n“show[] that whoever was responsible for” her reassign‐\nments and denials of overtime “was aware of her protected \nactivity or was involved in the later actions”). \n Finally, Mr. Cervantes maintains that disputed facts, \nsuch as whether he agreed to work the second shift on June \n20, 2015, and whether Ardagh properly trained him, pre‐\nclude summary judgment on his retaliation claim. Because \nany such issues are irrelevant to the undisputed facts that \nMr. Cervantes did not complain about discrimination to an‐\nyone at Ardagh and that his supervisors were not aware of \n\n \n12 See R.44 at 8. \n\fNo. 17‐3536 11\n\nany complaints he may have made to the union, the district \ncourt properly granted summary judgment for Ardagh. \n Conclusion \n For the foregoing reasons, we affirm the judgment of the \ndistrict court. \n AFFIRMED\n[END_CASE]", "role": "user" } ]
4,585,455	TRUSTEES OF the SUBURBAN TEAMSTERS OF NORTHERN ILLINOIS PENSION FUND, Plaintiff-Appellee, v. the E COMPANY, a Dissolved Illinois Corporation, Et Al., Defendants-Appellants.	Trs. of the Suburban Teamsters of N. Ill. Pension Fund v. E Co.	2019-01-29	18-2273	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Easterbrook, Barrett, Scudder", "parties": "", "opinions": [{"author": "SCUDDER, Circuit Judge", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-2273\nTRUSTEES OF THE SUBURBAN TEAMSTERS OF NORTHERN ILLINOIS\nPENSION FUND,\n Plaintiff-Appellee,\n\n v.\n\nTHE E COMPANY, a dissolved Illinois Corporation, et al.,\n Defendants-Appellants.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 1:15-cv-10323 — Thomas M. Durkin, Judge.\n ____________________\n\n ARGUED JANUARY 18, 2019 — DECIDED JANUARY 29, 2019\n ____________________\n\n Before EASTERBROOK, BARRETT, and SCUDDER, Circuit\nJudges.\n SCUDDER, Circuit Judge. Under the terms of a collective\nbargaining agreement, T&W Edmier Corporation regularly\ncontributed on behalf of its employees to the Suburban\nTeamsters of Northern Illinois Pension Fund. But in 2014\nT&W ceased operations and cut oﬀ its pension contributions,\nprompting the Pension Fund to assess withdrawal liability of\n\f2 No. 18-2273\n\n$640,900. The Pension Fund sought to collect payment by\nmailing a notice of the withdrawal liability to T&W and\nseveral aﬃliated entities, only to see their collection eﬀorts\nignored. The Trustees of the Pension Fund eventually sued to\ncollect payment, and that action culminated in the district\ncourt ordering T&W, along with several other individuals and\nentities under common control, to pay the withdrawal\nliability. Now seeking to vacate the district court’s judgment,\nT&W and the other defendants argue that their due process\nrights were violated when the Pension Fund initiated\ncollection of the withdrawal liability by mailing notice to\nsome but not all of them. Seeing no error, we aﬃrm.\n I\n T&W Edmier Corporation operated a construction\nbusiness in tandem with The E Company. T&W owned the\nconstruction equipment while The E Company hired and\nprovided employees. Brothers Thomas and William Edmier\neach owned 50% of T&W. Kevin Edmier, William’s son,\nowned and operated The E Company. Pursuant to the terms\nof a collective bargaining agreement with its employees, T&W\nparticipated in the Suburban Teamsters of Northern Illinois\nmulti-employer pension plan, and, for its part, The E\nCompany agreed to assume joint and several liability for\nT&W’s obligations to the Pension Fund. In 2014, however,\nT&W and The E Company ceased operations, dissolved, and\nwithdrew from the plan.\n The Multiemployer Pension Plan Amendments to the Em-\nployee Retirement Income Security Act require a covered plan\nto assess withdrawal liability against a withdrawing em-\nployer. See 29 U.S.C. § 1396. Withdrawal liability, as its name\nimplies, is designed to prevent shifting the ﬁnancial burden\n\fNo. 18-2273 3\n\nof employees’ vested pension beneﬁts to other employers in\nthe multi-employer plan. We explained these principles at\nsome length in Central States, Southeast and Southwest Areas\nPension Fund v. Slotky, 956 F.2d 1369, 1371–72 (7th Cir. 1992).\n Consistent with ERISA’s mandate, the Pension Fund\nmailed a notice of withdrawal liability on April 30, 2015, a past\ndue notice on August 17, 2015, and a default and acceleration\nnotice on November 12, 2015. The notice went to T&W, The E\nCompany, and the Edmier Corporation (another entity\nwholly owned by Thomas Edmier). Even more speciﬁcally,\nthe Pension Fund sent the notice to the attention of Thomas,\nWilliam, and Kevin Edmier, as well as attorney George\nGrumley, the registered agent of both T&W and The E\nCompany. At their depositions, Thomas, William, and Kevin\nEdmier acknowledged receiving the notice.\n The Pension Fund’s notices went unanswered and, as a\nresult, the Pension Fund’s Trustees initiated a lawsuit in the\ndistrict court. Ignoring the Pension Fund’s requests for\npayment had signiﬁcant legal consequences for the\ndefendants. Congress has required that all disputes over\nwithdrawal liability be resolved through arbitration, see 29\nU.S.C. § 1401(a)(1), and an employer’s failure to arbitrate\nmeans “the plan can then immediately ﬁle suit to collect the\nentire amount of withdrawal liability, and in that proceeding\nthe employer will have forfeited any defenses it could have\npresented to the arbitrator,” Nat’l Shopmen Pension Fund v.\nDISA Industries, Inc., 653 F.3d 573, 579 (7th Cir. 2011).\n Our case law has recognized a narrow exception to this\ngeneral rule of forfeiture for a party who “had absolutely no\nreason to believe that they might be deemed members of a\ncontrolled group” but is nonetheless sued and alleged to be\n\f4 No. 18-2273\n\nliable for another party’s withdrawal liability based on\nERISA’s “controlled group” provision. See Slotky, 956 F.2d at\n1373. The controlled group provision imputes liability to all\n“trades or businesses” under “common control” with another\nparty who is liable for the withdrawal liability. See 29 U.S.C.\n§ 1301(b)(1). And our decision in Slotky allows unsuspecting\ndefendants who are sued in district court but had no idea they\nmight be liable as members of a controlled group to litigate\nthat question—membership in a controlled group. See 956\nF.2d at 1373.\n Relying on this framework, the district court concluded\nthat T&W, The E Company, and the Edmier Corporation had\nforfeited all defenses to liability, including the defense that\nthey were not members of a controlled group, by failing to\narbitrate after receiving the Pension Fund’s notice of with-\ndrawal liability. This outcome reﬂected a straightforward ap-\nplication of these defendants not complying with the clear ar-\nbitration mandate in 29 U.S.C. § 1301(b)(1).\n As for each of the other defendants (Thomas, William, and\nKevin Edmier; K. Edmier & Sons LLC; The William Edmier\nTrust; Lake Street Realty, Inc.; and E&E Equipment & Leas-\ning), the district court explained that they too had likely for-\nfeited all defenses as they were not the type of unsuspecting\ndefendant contemplated in Slotky. Put diﬀerently, the district\ncourt reasoned that none of these defendants had such a cred-\nible claim of surprise (at being a member of a controlled\ngroup) to sidestep ERISA’s arbitration requirement. Regard-\nless, the district court went further and determined as a fac-\ntual matter that each of these defendants was a trade or busi-\nness under common control with another party who received\nthe notice of withdrawal liability. This reasoning ﬁnds strong\n\fNo. 18-2273 5\n\nsupport in the record and resulted in the district court con-\ncluding that each of these defendants was liable under\nERISA’s controlled group provision.\n In the end, the district court entered summary judgment\nfor the Pension Fund’s Trustees and ordered the defendants\nto pay the full $640,900 of withdrawal liability, plus interest,\nliquidated damages, attorneys’ fees, and costs. As members of\na controlled group, each of the defendants became jointly and\nseverally liable for payment. See Central States, Southeast and\nSouthwest Areas Pension Fund v. Koder, 969 F.2d 451, 452 (7th\nCir. 1992) (citing 29 U.S.C. § 1301(b)(1)).\n II\n The defendants challenge the district court’s judgment by\narguing that the Pension Fund’s notice of withdrawal liability\nviolated the Fifth Amendment’s Due Process Clause. In their\nview, the Supreme Court’s decision in Mullane v. Central\nHanover Bank & Trust Co., 339 U.S. 306 (1950) required the\nPension Fund to serve the notice of withdrawal liability on\neach of them and to explain the standard for controlled group\nliability under ERISA in the notice. This contention misses the\nmark.\n The defendants’ reliance on Mullane is misplaced because\nall parties agree that judicial proceedings commenced in the\ndistrict court with proper service of process (notice of the\ncomplaint) to each defendant. The due process standard an-\nnounced in Mullane—a decision requiring suﬃcient notice of\na pending judicial proceeding—was therefore satisﬁed. No\nreading of Mullane, however, supports the view that ERISA’s\ncontrolled group liability provisions and accompanying\n\f6 No. 18-2273\n\nprocedural framework (in which a defendant forfeits certain\ndefenses by failing to arbitrate) violate due process.\n A related observation is in order. The defendants colloqui-\nally and imprecisely allege a violation of due process, time\nand again citing Mullane. In no way, shape, or form did any\ndue process violation occur here. The defendants who re-\nceived—but chose to ignore—the notice of withdrawal liabil-\nity had every opportunity to arbitrate and yet failed to do so,\nresulting, by operation of ERISA, in a waiver of all defenses\nto withdrawal liability. No unfairness inheres in that out-\ncome. And, as for the defendants who did not receive the no-\ntice of withdrawal liability but nonetheless found themselves\nnamed in a federal lawsuit, the district court provided them a\nfull and fair opportunity to litigate their liability as members\nof a controlled group. Nothing about the path those defend-\nants traveled oﬀends due process.\n For these reasons, we AFFIRM.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4362708/", "author_raw": "SCUDDER, Circuit Judge"}]}	EASTERBROOK	BARRETT	SCUDDER	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4585455/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: TRUSTEES OF the SUBURBAN TEAMSTERS OF NORTHERN ILLINOIS PENSION FUND, Plaintiff-Appellee, v. the E COMPANY, a Dissolved Illinois Corporation, Et Al., Defendants-Appellants.\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-29\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-2273\nTRUSTEES OF THE SUBURBAN TEAMSTERS OF NORTHERN ILLINOIS\nPENSION FUND,\n Plaintiff-Appellee,\n\n v.\n\nTHE E COMPANY, a dissolved Illinois Corporation, et al.,\n Defendants-Appellants.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 1:15-cv-10323 — Thomas M. Durkin, Judge.\n ____________________\n\n ARGUED JANUARY 18, 2019 — DECIDED JANUARY 29, 2019\n ____________________\n\n Before EASTERBROOK, BARRETT, and SCUDDER, Circuit\nJudges.\n SCUDDER, Circuit Judge. Under the terms of a collective\nbargaining agreement, T&W Edmier Corporation regularly\ncontributed on behalf of its employees to the Suburban\nTeamsters of Northern Illinois Pension Fund. But in 2014\nT&W ceased operations and cut oﬀ its pension contributions,\nprompting the Pension Fund to assess withdrawal liability of\n\f2 No. 18-2273\n\n$640,900. The Pension Fund sought to collect payment by\nmailing a notice of the withdrawal liability to T&W and\nseveral aﬃliated entities, only to see their collection eﬀorts\nignored. The Trustees of the Pension Fund eventually sued to\ncollect payment, and that action culminated in the district\ncourt ordering T&W, along with several other individuals and\nentities under common control, to pay the withdrawal\nliability. Now seeking to vacate the district court’s judgment,\nT&W and the other defendants argue that their due process\nrights were violated when the Pension Fund initiated\ncollection of the withdrawal liability by mailing notice to\nsome but not all of them. Seeing no error, we aﬃrm.\n I\n T&W Edmier Corporation operated a construction\nbusiness in tandem with The E Company. T&W owned the\nconstruction equipment while The E Company hired and\nprovided employees. Brothers Thomas and William Edmier\neach owned 50% of T&W. Kevin Edmier, William’s son,\nowned and operated The E Company. Pursuant to the terms\nof a collective bargaining agreement with its employees, T&W\nparticipated in the Suburban Teamsters of Northern Illinois\nmulti-employer pension plan, and, for its part, The E\nCompany agreed to assume joint and several liability for\nT&W’s obligations to the Pension Fund. In 2014, however,\nT&W and The E Company ceased operations, dissolved, and\nwithdrew from the plan.\n The Multiemployer Pension Plan Amendments to the Em-\nployee Retirement Income Security Act require a covered plan\nto assess withdrawal liability against a withdrawing em-\nployer. See 29 U.S.C. § 1396. Withdrawal liability, as its name\nimplies, is designed to prevent shifting the ﬁnancial burden\n\fNo. 18-2273 3\n\nof employees’ vested pension beneﬁts to other employers in\nthe multi-employer plan. We explained these principles at\nsome length in Central States, Southeast and Southwest Areas\nPension Fund v. Slotky, 956 F.2d 1369, 1371–72 (7th Cir. 1992).\n Consistent with ERISA’s mandate, the Pension Fund\nmailed a notice of withdrawal liability on April 30, 2015, a past\ndue notice on August 17, 2015, and a default and acceleration\nnotice on November 12, 2015. The notice went to T&W, The E\nCompany, and the Edmier Corporation (another entity\nwholly owned by Thomas Edmier). Even more speciﬁcally,\nthe Pension Fund sent the notice to the attention of Thomas,\nWilliam, and Kevin Edmier, as well as attorney George\nGrumley, the registered agent of both T&W and The E\nCompany. At their depositions, Thomas, William, and Kevin\nEdmier acknowledged receiving the notice.\n The Pension Fund’s notices went unanswered and, as a\nresult, the Pension Fund’s Trustees initiated a lawsuit in the\ndistrict court. Ignoring the Pension Fund’s requests for\npayment had signiﬁcant legal consequences for the\ndefendants. Congress has required that all disputes over\nwithdrawal liability be resolved through arbitration, see 29\nU.S.C. § 1401(a)(1), and an employer’s failure to arbitrate\nmeans “the plan can then immediately ﬁle suit to collect the\nentire amount of withdrawal liability, and in that proceeding\nthe employer will have forfeited any defenses it could have\npresented to the arbitrator,” Nat’l Shopmen Pension Fund v.\nDISA Industries, Inc., 653 F.3d 573, 579 (7th Cir. 2011).\n Our case law has recognized a narrow exception to this\ngeneral rule of forfeiture for a party who “had absolutely no\nreason to believe that they might be deemed members of a\ncontrolled group” but is nonetheless sued and alleged to be\n\f4 No. 18-2273\n\nliable for another party’s withdrawal liability based on\nERISA’s “controlled group” provision. See Slotky, 956 F.2d at\n1373. The controlled group provision imputes liability to all\n“trades or businesses” under “common control” with another\nparty who is liable for the withdrawal liability. See 29 U.S.C.\n§ 1301(b)(1). And our decision in Slotky allows unsuspecting\ndefendants who are sued in district court but had no idea they\nmight be liable as members of a controlled group to litigate\nthat question—membership in a controlled group. See 956\nF.2d at 1373.\n Relying on this framework, the district court concluded\nthat T&W, The E Company, and the Edmier Corporation had\nforfeited all defenses to liability, including the defense that\nthey were not members of a controlled group, by failing to\narbitrate after receiving the Pension Fund’s notice of with-\ndrawal liability. This outcome reﬂected a straightforward ap-\nplication of these defendants not complying with the clear ar-\nbitration mandate in 29 U.S.C. § 1301(b)(1).\n As for each of the other defendants (Thomas, William, and\nKevin Edmier; K. Edmier & Sons LLC; The William Edmier\nTrust; Lake Street Realty, Inc.; and E&E Equipment & Leas-\ning), the district court explained that they too had likely for-\nfeited all defenses as they were not the type of unsuspecting\ndefendant contemplated in Slotky. Put diﬀerently, the district\ncourt reasoned that none of these defendants had such a cred-\nible claim of surprise (at being a member of a controlled\ngroup) to sidestep ERISA’s arbitration requirement. Regard-\nless, the district court went further and determined as a fac-\ntual matter that each of these defendants was a trade or busi-\nness under common control with another party who received\nthe notice of withdrawal liability. This reasoning ﬁnds strong\n\fNo. 18-2273 5\n\nsupport in the record and resulted in the district court con-\ncluding that each of these defendants was liable under\nERISA’s controlled group provision.\n In the end, the district court entered summary judgment\nfor the Pension Fund’s Trustees and ordered the defendants\nto pay the full $640,900 of withdrawal liability, plus interest,\nliquidated damages, attorneys’ fees, and costs. As members of\na controlled group, each of the defendants became jointly and\nseverally liable for payment. See Central States, Southeast and\nSouthwest Areas Pension Fund v. Koder, 969 F.2d 451, 452 (7th\nCir. 1992) (citing 29 U.S.C. § 1301(b)(1)).\n II\n The defendants challenge the district court’s judgment by\narguing that the Pension Fund’s notice of withdrawal liability\nviolated the Fifth Amendment’s Due Process Clause. In their\nview, the Supreme Court’s decision in Mullane v. Central\nHanover Bank & Trust Co., 339 U.S. 306 (1950) required the\nPension Fund to serve the notice of withdrawal liability on\neach of them and to explain the standard for controlled group\nliability under ERISA in the notice. This contention misses the\nmark.\n The defendants’ reliance on Mullane is misplaced because\nall parties agree that judicial proceedings commenced in the\ndistrict court with proper service of process (notice of the\ncomplaint) to each defendant. The due process standard an-\nnounced in Mullane—a decision requiring suﬃcient notice of\na pending judicial proceeding—was therefore satisﬁed. No\nreading of Mullane, however, supports the view that ERISA’s\ncontrolled group liability provisions and accompanying\n\f6 No. 18-2273\n\nprocedural framework (in which a defendant forfeits certain\ndefenses by failing to arbitrate) violate due process.\n A related observation is in order. The defendants colloqui-\nally and imprecisely allege a violation of due process, time\nand again citing Mullane. In no way, shape, or form did any\ndue process violation occur here. The defendants who re-\nceived—but chose to ignore—the notice of withdrawal liabil-\nity had every opportunity to arbitrate and yet failed to do so,\nresulting, by operation of ERISA, in a waiver of all defenses\nto withdrawal liability. No unfairness inheres in that out-\ncome. And, as for the defendants who did not receive the no-\ntice of withdrawal liability but nonetheless found themselves\nnamed in a federal lawsuit, the district court provided them a\nfull and fair opportunity to litigate their liability as members\nof a controlled group. Nothing about the path those defend-\nants traveled oﬀends due process.\n For these reasons, we AFFIRM.\n[END_CASE]", "role": "user" } ]
4,585,456		Juan Cervantes v. Ardagh Group	2019-01-29	17-3536	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before WOOD, Chief Judge, and RIPPLE, and BARRETT, Circuit Judges.", "parties": "", "opinions": [{"author": "Kenneth Francis Ripple", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________ \nNo. 17‐3536 \nJUAN CERVANTES, \n Plaintiff‐Appellant, \n v. \n\nARDAGH GROUP, \n Defendant‐Appellee. \n ____________________ \n\n Appeal from the United States District Court for the \n Northern District of Illinois, Eastern Division. \n No. 1:16‐cv‐11080 — Ronald A. Guzmán, Judge. \n ____________________ \n\n ARGUED DECEMBER 11, 2018 — DECIDED JANUARY 29, 2019 \n ____________________ \n\n Before WOOD, Chief Judge, and RIPPLE, and BARRETT, \nCircuit Judges. \n RIPPLE, Circuit Judge. Juan Cervantes brought this action \nagainst his employer, Ardagh Group (“Ardagh”), alleging \nviolations of Title VII of the Civil Rights Act of 1964, 42 \nU.S.C. § 2000e et seq., and the Illinois Human Rights Act, 775 \nILCS 5/1‐101 et seq. (“IHRA”). The complaint asserted that \nArdagh had refused to promote him, had issued him per‐\nformance warnings, and had demoted him because of his \n\f2 No. 17‐3536 \n\nrace and national origin and in retaliation for previous com‐\nplaints about discrimination and harassment. The district \ncourt granted summary judgment in favor of Ardagh. \n The district court’s decision is correct. Mr. Cervantes did \nnot exhaust his administrative remedies for his discrimina‐\ntion claims. His retaliation claim also must fail because there \nis no evidence of a causal connection between any protected \nactivity by Mr. Cervantes and an adverse employment action \nby Ardagh. Accordingly, we affirm the judgment of the dis‐\ntrict court. \n I \n BACKGROUND \n Mr. Cervantes began his career at Ardagh in 1991 as a \npallet loader. He was promoted to fork lift driver in 1998 \nand to electro‐mechanic in 2000. His complaint followed an \nincident that took place in 2015. Taking the facts in the light \n 1\nmost favorable to Mr. Cervantes, on June 20, 2015, after \ncompleting his shift, he remained at the Ardagh facility to \nassist his father, a fellow Ardagh employee, with fixing a \nmachine. During this second shift, supervisor Katina Stewart \nattempted to call Mr. Cervantes on his radio, but could not \nreach him. When Stewart located Mr. Cervantes in the facili‐\nty, he explained that he had not responded to the radio calls \nbecause he was not working a second shift; he was only stay‐\n \n1 The relevant facts are contested. On review of the district court’s grant \n\nof summary judgment for Ardagh, we resolve any disputed facts in fa‐\nvor of the non‐moving party, Mr. Cervantes, and “draw[] all reasonable \ninferences from the facts in his favor.” Dietchweiler v. Lucas, 827 F.3d 622, \n627 (7th Cir. 2016). \n\fNo. 17‐3536 3\n\ning past his shift to help his father. Stewart informed \nMr. Cervantes that if he was not accepting assignments for \nthe second shift, he must leave the facility. He eventually \ncomplied. Stewart reported the incident, and Mr. Cervantes \nwas written up for insubordination and temporarily sus‐\npended. Following an investigation, Ardagh demoted \nMr. Cervantes from electro‐mechanic to forklift driver. \n On September 3, 2015, Mr. Cervantes filed a charge with \nthe Illinois Department of Human Rights (“IDHR”). In the \nsection of the form titled “Discrimination Based On,” Mr. \nCervantes checked only the box for “Retaliation.”2 He did \nnot check the box for race, national origin, or any other basis \nof discrimination. The IDHR commenced an investigation \ninto his allegations, seeking additional information from \nMr. Cervantes and from Ardagh. By March 31, 2016, Mr. \nCervantes had retained counsel, who sent a letter to IDHR \non his behalf in response to the agency’s questions about the \ncharge. On July 13, 2016, the IDHR dismissed Mr. Cervan‐\ntes’s charge, finding a lack of substantial evidence to support \nhis allegations. \n On December 5, 2016, Mr. Cervantes filed a complaint in \nthe district court. He alleged that Ardagh had violated Title \nVII and the IHRA by failing to promote him, issuing him \nperformance warnings, and demoting him based on his race \nand national origin and in retaliation for his previous com‐\nplaints about harassment and discrimination. Ardagh \n\n\n\n \n2 See R.32 at 4 (Mr. Cervantes’s IDHR Charge (Sept. 3, 2015)). \n\f4 No. 17‐3536 \n\nmoved for summary judgment on all claims, and the district \ncourt granted that motion.3 \n The district court first determined that Mr. Cervantes \ncould not proceed on his claims for race and national origin \ndiscrimination because he had failed to exhaust his adminis‐\ntrative remedies and because these allegations were not rea‐\nsonably related to his retaliation charge. The district court \nthen concluded that Mr. Cervantes had failed to state a claim \nfor retaliation because he had not established that he en‐\ngaged in protected activity. He also failed to offer any evi‐\ndence that his supervisors were aware of any complaints he \nraised and therefore did not demonstrate a causal connec‐\ntion between any protected activity and an adverse em‐\nployment action. The district court entered judgment in fa‐\nvor of Ardagh on November 14, 2017, and Mr. Cervantes \ntimely appealed. \n II \n DISCUSSION \n We review the district court’s grant of summary judg‐\nment de novo. Ortiz v. John O. Butler Co., 94 F.3d 1121, 1124 \n(7th Cir. 1996). “We will not resolve factual disputes or \nweigh conflicting evidence,” but “will only determine \nwhether a genuine issue of material fact exists for trial.” Id. \n 4\nAs we noted earlier, this inquiry requires that we “view the \n \n3 In his complaint, Mr. Cervantes also asserted a claim under Illinois \n\nstate law for intentional infliction of emotional distress. The district court \ngranted summary judgment for Ardagh on that claim, and Mr. Cervan‐\ntes does not challenge that ruling in this appeal. \n4 See supra note 1 and accompanying text. \n\fNo. 17‐3536 5\n\nevidence and draw all inferences in a way most favorable to \nthe nonmoving party.” Id. “If the nonmoving party fails to \nestablish the existence of an element essential to his case, one \non which he would bear the burden of proof at trial, sum‐\nmary judgment must be granted to the moving party.” Id. \n A. \n Mr. Cervantes first submits that the district court erred \nwhen it determined that he had not exhausted his adminis‐\ntrative remedies for his claims of discrimination based on \nrace and national origin. We cannot accept this argument. \n In general, a plaintiff can only bring claims under Title \nVII or the IHRA that he has included in the original charge \nfiled with the Equal Employment Opportunity Commission \n(“EEOC”) or the IDHR.5 Sitar v. Indiana Dep’t of Transp., 344 \nF.3d 720, 726 (7th Cir. 2003). This limitation serves two pur‐\nposes. It affords the employer some notice of the conduct \nunderlying the employee’s allegation. It also “affords the \nagency and the employer an opportunity to attempt concilia‐\ntion without resort to the courts.” Rush v. McDonald’s Corp., \n966 F.2d 1104, 1110 (7th Cir. 1992). \n Here, Mr. Cervantes initially filed a charge with the \nIDHR and checked only the box for discrimination based on \nretaliation. He did not check the box for discrimination \nbased on race, national origin, or any other protected charac‐\nteristic. He described the “particulars” of his charge as fol‐\nlows: \n \n5 The EEOC and the IDHR “have a work sharing arrangement providing \n\nthat a charge filed with one is deemed cross‐filed with the other.” \nMcQueen v. City of Chi., 803 F. Supp. 2d 892, 902–03 (N.D. Ill. 2011). \n\f6 No. 17‐3536 \n\n I began my employment with Respondent \n [Ardagh] in or around May 1991. My current \n position is Forklift Driver. A family member \n filed EEOC Charge No. 210‐1998‐00397 against \n Respondent. During my employment, I have \n been subjected to discipline, harassment, and I \n have been demoted. \n I believe I have been discriminated against in \n retaliation, in violation of Title VII of the Civil \n Rights Act of 1964, as amended.6 \n In his complaint, by contrast, he alleged that Ardagh had \nfailed to promote him, had issued him performance warn‐\nings, and had demoted him based on his race and national \norigin. He further asserted that, after completing a four‐year \napprenticeship and working as a “rotating shift mechanic” \nfor several years, “because of his race, the decision makers at \nthe company refused to promote him.”7 He alleged that he \n“had previously complained to his superiors of discrimina‐\ntion and harassment” based on his Hispanic background, \nwhich “led to his superiors issuing poor job performance \nwarnings, about which Cervantes filed grievances with the \nunion because these warnings were retaliatory.”8 He added \nthat “[t]hese superiors were Tom Jones, Maintenance Super‐\nvisor, and Don Spells, Shift Supervisor.”9 \n\n \n6 R.32 at 4. \n\n7 R.39‐4 ¶ 6. \n\n8 Id. ¶ 10. \n\n9 Id. \n\fNo. 17‐3536 7\n\n The district court concluded that the claims of discrimi‐\nnation in Mr. Cervantes’s court complaint were outside the \nscope of his retaliation charge filed with the IDHR. Mr. Cer‐\nvantes contends, however, that his discrimination claims sat‐\nisfy a recognized exception for “claims that are ‘like or rea‐\nsonably related’ to the EEOC charge, and can be reasonably \nexpected to grow out of an EEOC investigation of the charg‐\nes.” Sitar, 344 F.3d at 726 (quoting Jenkins v. Blue Cross Mut. \nHosp. Ins., Inc., 538 F.2d 164, 167 (7th Cir. 1976) (en banc)). As \na general matter, we do not consider a retaliation charge to \nbe reasonably related to a discrimination claim. Id. The \ncharge and the complaint may be reasonably related if, “at a \nminimum,” they “describe the same circumstances and par‐\nticipants.” Conner v. Illinois Dep’t of Natural Res., 413 F.3d 675, \n680 (7th Cir. 2005). \n Mr. Cervantes believes that his discrimination claims in \nthis action are reasonably related to his retaliation charge \nfiled with the IDHR because both involve the same entity \n(Ardagh), the same conduct (his discipline and demotion), \nand the same time frame (his tenure at Ardagh). These simi‐\nlarities occur, however, at far too high a level of generality. \nA simple comparison of his administrative retaliation charge \nand his court discrimination complaint starkly reveals that \nthey arise out of very different conduct in very different time \nperiods. His administrative retaliation charge focuses on \nconduct stemming from the 1998 EEOC charge filed by his \nbrother. Mr. Cervantes’s discrimination complaint alleges \nthat the adverse employment conduct was based on his race \nand his own internal complaints about race and national \norigin discrimination. The allegations in his complaint de‐\nscribe different hostilities that arose at different times, e.g., \nfollowing his apprenticeship, and that involved different in‐\n\f8 No. 17‐3536 \n\ndividuals, namely Jones and Spells. These allegations never \nwere mentioned in the charge. The administrative retaliation \ncharge therefore never gave Ardagh reasonable notice of \nMr. Cervantes’s discrimination claims, nor did it provide \nArdagh and the agency an opportunity to resolve his con‐\ncerns before they ripened into this suit. \n Mr. Cervantes further submits that the March 31, 2016 \nletter from his attorney to the IDHR in response to an in‐\nquiry from the agency expanded the scope of his charge. In \nthe final section of the letter, titled “On the Basis of Retalia‐\ntion,” his counsel wrote that, “After completing his 4 year \napprenticeship program and working for several years as a \nrotating shift mechanic,” Mr. Cervantes “desired to be \nplaced on a straight day shift. Yet, because of his race, the \ndecision makers at the company refused to promote him.”10 \nHe added that Mr. Cervantes’s “family is of Hispanic back‐\nground, and he felt that this was the reason he was not being \npromoted at [Ardagh], despite being as qualified—or more \nso—than those who were in fact being promoted.”11 \n Even if we were to assume that this letter should have \nalerted the agency investigators to the possibility of discrim‐\nination, we must remember that his counsel submitted the \nletter to the IDHR ex parte; it therefore did not provide \nArdagh with any notice of Mr. Cervantes’s potential dis‐\ncrimination claims. See O’Rourke v. Continental Cas. Co., 983 \nF.2d 94, 97 (7th Cir. 1993) (holding that a follow‐up memo‐\nrandum submitted by plaintiff to the EEOC did not enlarge \n \n10 R.39‐12 ¶ ZZ1. \n\n11 Id. ¶ ZZ4. \n\fNo. 17‐3536 9\n\nthe scope of his charge of discrimination to include a claim \nfor retaliation because, even if his submission “should have \nalerted the EEOC, [it] did nothing to alert the employer”). \nFurthermore, the letter indicates that Mr. Cervantes’s attor‐\nney understood these allegations to be part of a theory of \ndiscrimination based on retaliation, as alleged in the IDHR \ncharge, not a separate theory of discrimination based on race \nand national origin. Where, as here, a plaintiff is assisted by \ncounsel, it is “not unreasonable to require some additional \nspecificity or detail as a condition precedent for permitting” \nthe plaintiff to assert a claim that was not originally included \nin the administrative charge. Rush, 966 F.2d at 1112. \n Accordingly, we must conclude that Mr. Cervantes’s dis‐\ncrimination claims were not within the scope of his retalia‐\ntion charge, and that the district court properly granted \nsummary judgment for Ardagh on those claims. \n B. \n We turn next to Mr. Cervantes’s retaliation claim. To \nstate a claim for retaliation under Title VII, a plaintiff must \n“present evidence of (1) a statutorily protected activity; (2) a \nmaterially adverse action taken by the employer; and (3) a \ncausal connection between the two.” Volling v. Kurtz Para‐\nmedic Servs., Inc., 840 F.3d 378, 383 (7th Cir. 2016) (quoting \nTurner v. The Saloon, Ltd., 595 F.3d 679, 687 (7th Cir. 2010)). \n Mr. Cervantes contends that he presented sufficient evi‐\ndence to state a claim for retaliation. He alleged that he \ncomplained internally at Ardagh about race and national \norigin discrimination and that his supervisors subsequently \ndisciplined and demoted him for those complaints. Howev‐\ner, his deposition testimony clarified that he made his com‐\n\f10 No. 17‐3536 \n\nplaints not to anyone at Ardagh but to the union president \nand that he did not know whether the union president ever \nbrought his concerns to the attention of anyone at Ardagh.12 \nThe district court thus correctly concluded that Mr. Cervan‐\ntes’s retaliation claim fails as a matter of law because he did \nnot allege that he engaged in any protected activity. See, e.g., \nGleason v. Mesirow Fin., Inc., 118 F.3d 1134, 1147 (7th Cir. \n1997) (holding that plaintiff did not engage in statutorily \nprotected activity given that “she did not raise the subject of \nsexual harassment to anyone in authority”). \n Moreover, even if Mr. Cervantes has alleged that he en‐\ngaged in protected activity, his retaliation claim still fails be‐\ncause he conceded that none of his supervisors at Ardagh \nwere aware of his complaints. Therefore, there is no “causal \nconnection” between any protected activity and his disci‐\npline and demotion. See, e.g., King v. Ford Motor Co., 872 F.2d \n833, 842 (7th Cir. 2017) (concluding that plaintiff had “no \nsupport for a claim of retaliation” because she failed to \n“show[] that whoever was responsible for” her reassign‐\nments and denials of overtime “was aware of her protected \nactivity or was involved in the later actions”). \n Finally, Mr. Cervantes maintains that disputed facts, \nsuch as whether he agreed to work the second shift on June \n20, 2015, and whether Ardagh properly trained him, pre‐\nclude summary judgment on his retaliation claim. Because \nany such issues are irrelevant to the undisputed facts that \nMr. Cervantes did not complain about discrimination to an‐\nyone at Ardagh and that his supervisors were not aware of \n\n \n12 See R.44 at 8. \n\fNo. 17‐3536 11\n\nany complaints he may have made to the union, the district \ncourt properly granted summary judgment for Ardagh. \n Conclusion \n For the foregoing reasons, we affirm the judgment of the \ndistrict court. \n AFFIRMED", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4362709/", "author_raw": "Kenneth Francis Ripple"}]}	WOOD	RIPPLE	BARRETT	1		{"WOOD": ", Chief", "RIPPLE": ", Circuit", "BARRETT": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4585456/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Juan Cervantes v. Ardagh Group\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-29\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________ \nNo. 17‐3536 \nJUAN CERVANTES, \n Plaintiff‐Appellant, \n v. \n\nARDAGH GROUP, \n Defendant‐Appellee. \n ____________________ \n\n Appeal from the United States District Court for the \n Northern District of Illinois, Eastern Division. \n No. 1:16‐cv‐11080 — Ronald A. Guzmán, Judge. \n ____________________ \n\n ARGUED DECEMBER 11, 2018 — DECIDED JANUARY 29, 2019 \n ____________________ \n\n Before WOOD, Chief Judge, and RIPPLE, and BARRETT, \nCircuit Judges. \n RIPPLE, Circuit Judge. Juan Cervantes brought this action \nagainst his employer, Ardagh Group (“Ardagh”), alleging \nviolations of Title VII of the Civil Rights Act of 1964, 42 \nU.S.C. § 2000e et seq., and the Illinois Human Rights Act, 775 \nILCS 5/1‐101 et seq. (“IHRA”). The complaint asserted that \nArdagh had refused to promote him, had issued him per‐\nformance warnings, and had demoted him because of his \n\f2 No. 17‐3536 \n\nrace and national origin and in retaliation for previous com‐\nplaints about discrimination and harassment. The district \ncourt granted summary judgment in favor of Ardagh. \n The district court’s decision is correct. Mr. Cervantes did \nnot exhaust his administrative remedies for his discrimina‐\ntion claims. His retaliation claim also must fail because there \nis no evidence of a causal connection between any protected \nactivity by Mr. Cervantes and an adverse employment action \nby Ardagh. Accordingly, we affirm the judgment of the dis‐\ntrict court. \n I \n BACKGROUND \n Mr. Cervantes began his career at Ardagh in 1991 as a \npallet loader. He was promoted to fork lift driver in 1998 \nand to electro‐mechanic in 2000. His complaint followed an \nincident that took place in 2015. Taking the facts in the light \n 1\nmost favorable to Mr. Cervantes, on June 20, 2015, after \ncompleting his shift, he remained at the Ardagh facility to \nassist his father, a fellow Ardagh employee, with fixing a \nmachine. During this second shift, supervisor Katina Stewart \nattempted to call Mr. Cervantes on his radio, but could not \nreach him. When Stewart located Mr. Cervantes in the facili‐\nty, he explained that he had not responded to the radio calls \nbecause he was not working a second shift; he was only stay‐\n \n1 The relevant facts are contested. On review of the district court’s grant \n\nof summary judgment for Ardagh, we resolve any disputed facts in fa‐\nvor of the non‐moving party, Mr. Cervantes, and “draw[] all reasonable \ninferences from the facts in his favor.” Dietchweiler v. Lucas, 827 F.3d 622, \n627 (7th Cir. 2016). \n\fNo. 17‐3536 3\n\ning past his shift to help his father. Stewart informed \nMr. Cervantes that if he was not accepting assignments for \nthe second shift, he must leave the facility. He eventually \ncomplied. Stewart reported the incident, and Mr. Cervantes \nwas written up for insubordination and temporarily sus‐\npended. Following an investigation, Ardagh demoted \nMr. Cervantes from electro‐mechanic to forklift driver. \n On September 3, 2015, Mr. Cervantes filed a charge with \nthe Illinois Department of Human Rights (“IDHR”). In the \nsection of the form titled “Discrimination Based On,” Mr. \nCervantes checked only the box for “Retaliation.”2 He did \nnot check the box for race, national origin, or any other basis \nof discrimination. The IDHR commenced an investigation \ninto his allegations, seeking additional information from \nMr. Cervantes and from Ardagh. By March 31, 2016, Mr. \nCervantes had retained counsel, who sent a letter to IDHR \non his behalf in response to the agency’s questions about the \ncharge. On July 13, 2016, the IDHR dismissed Mr. Cervan‐\ntes’s charge, finding a lack of substantial evidence to support \nhis allegations. \n On December 5, 2016, Mr. Cervantes filed a complaint in \nthe district court. He alleged that Ardagh had violated Title \nVII and the IHRA by failing to promote him, issuing him \nperformance warnings, and demoting him based on his race \nand national origin and in retaliation for his previous com‐\nplaints about harassment and discrimination. Ardagh \n\n\n\n \n2 See R.32 at 4 (Mr. Cervantes’s IDHR Charge (Sept. 3, 2015)). \n\f4 No. 17‐3536 \n\nmoved for summary judgment on all claims, and the district \ncourt granted that motion.3 \n The district court first determined that Mr. Cervantes \ncould not proceed on his claims for race and national origin \ndiscrimination because he had failed to exhaust his adminis‐\ntrative remedies and because these allegations were not rea‐\nsonably related to his retaliation charge. The district court \nthen concluded that Mr. Cervantes had failed to state a claim \nfor retaliation because he had not established that he en‐\ngaged in protected activity. He also failed to offer any evi‐\ndence that his supervisors were aware of any complaints he \nraised and therefore did not demonstrate a causal connec‐\ntion between any protected activity and an adverse em‐\nployment action. The district court entered judgment in fa‐\nvor of Ardagh on November 14, 2017, and Mr. Cervantes \ntimely appealed. \n II \n DISCUSSION \n We review the district court’s grant of summary judg‐\nment de novo. Ortiz v. John O. Butler Co., 94 F.3d 1121, 1124 \n(7th Cir. 1996). “We will not resolve factual disputes or \nweigh conflicting evidence,” but “will only determine \nwhether a genuine issue of material fact exists for trial.” Id. \n 4\nAs we noted earlier, this inquiry requires that we “view the \n \n3 In his complaint, Mr. Cervantes also asserted a claim under Illinois \n\nstate law for intentional infliction of emotional distress. The district court \ngranted summary judgment for Ardagh on that claim, and Mr. Cervan‐\ntes does not challenge that ruling in this appeal. \n4 See supra note 1 and accompanying text. \n\fNo. 17‐3536 5\n\nevidence and draw all inferences in a way most favorable to \nthe nonmoving party.” Id. “If the nonmoving party fails to \nestablish the existence of an element essential to his case, one \non which he would bear the burden of proof at trial, sum‐\nmary judgment must be granted to the moving party.” Id. \n A. \n Mr. Cervantes first submits that the district court erred \nwhen it determined that he had not exhausted his adminis‐\ntrative remedies for his claims of discrimination based on \nrace and national origin. We cannot accept this argument. \n In general, a plaintiff can only bring claims under Title \nVII or the IHRA that he has included in the original charge \nfiled with the Equal Employment Opportunity Commission \n(“EEOC”) or the IDHR.5 Sitar v. Indiana Dep’t of Transp., 344 \nF.3d 720, 726 (7th Cir. 2003). This limitation serves two pur‐\nposes. It affords the employer some notice of the conduct \nunderlying the employee’s allegation. It also “affords the \nagency and the employer an opportunity to attempt concilia‐\ntion without resort to the courts.” Rush v. McDonald’s Corp., \n966 F.2d 1104, 1110 (7th Cir. 1992). \n Here, Mr. Cervantes initially filed a charge with the \nIDHR and checked only the box for discrimination based on \nretaliation. He did not check the box for discrimination \nbased on race, national origin, or any other protected charac‐\nteristic. He described the “particulars” of his charge as fol‐\nlows: \n \n5 The EEOC and the IDHR “have a work sharing arrangement providing \n\nthat a charge filed with one is deemed cross‐filed with the other.” \nMcQueen v. City of Chi., 803 F. Supp. 2d 892, 902–03 (N.D. Ill. 2011). \n\f6 No. 17‐3536 \n\n I began my employment with Respondent \n [Ardagh] in or around May 1991. My current \n position is Forklift Driver. A family member \n filed EEOC Charge No. 210‐1998‐00397 against \n Respondent. During my employment, I have \n been subjected to discipline, harassment, and I \n have been demoted. \n I believe I have been discriminated against in \n retaliation, in violation of Title VII of the Civil \n Rights Act of 1964, as amended.6 \n In his complaint, by contrast, he alleged that Ardagh had \nfailed to promote him, had issued him performance warn‐\nings, and had demoted him based on his race and national \norigin. He further asserted that, after completing a four‐year \napprenticeship and working as a “rotating shift mechanic” \nfor several years, “because of his race, the decision makers at \nthe company refused to promote him.”7 He alleged that he \n“had previously complained to his superiors of discrimina‐\ntion and harassment” based on his Hispanic background, \nwhich “led to his superiors issuing poor job performance \nwarnings, about which Cervantes filed grievances with the \nunion because these warnings were retaliatory.”8 He added \nthat “[t]hese superiors were Tom Jones, Maintenance Super‐\nvisor, and Don Spells, Shift Supervisor.”9 \n\n \n6 R.32 at 4. \n\n7 R.39‐4 ¶ 6. \n\n8 Id. ¶ 10. \n\n9 Id. \n\fNo. 17‐3536 7\n\n The district court concluded that the claims of discrimi‐\nnation in Mr. Cervantes’s court complaint were outside the \nscope of his retaliation charge filed with the IDHR. Mr. Cer‐\nvantes contends, however, that his discrimination claims sat‐\nisfy a recognized exception for “claims that are ‘like or rea‐\nsonably related’ to the EEOC charge, and can be reasonably \nexpected to grow out of an EEOC investigation of the charg‐\nes.” Sitar, 344 F.3d at 726 (quoting Jenkins v. Blue Cross Mut. \nHosp. Ins., Inc., 538 F.2d 164, 167 (7th Cir. 1976) (en banc)). As \na general matter, we do not consider a retaliation charge to \nbe reasonably related to a discrimination claim. Id. The \ncharge and the complaint may be reasonably related if, “at a \nminimum,” they “describe the same circumstances and par‐\nticipants.” Conner v. Illinois Dep’t of Natural Res., 413 F.3d 675, \n680 (7th Cir. 2005). \n Mr. Cervantes believes that his discrimination claims in \nthis action are reasonably related to his retaliation charge \nfiled with the IDHR because both involve the same entity \n(Ardagh), the same conduct (his discipline and demotion), \nand the same time frame (his tenure at Ardagh). These simi‐\nlarities occur, however, at far too high a level of generality. \nA simple comparison of his administrative retaliation charge \nand his court discrimination complaint starkly reveals that \nthey arise out of very different conduct in very different time \nperiods. His administrative retaliation charge focuses on \nconduct stemming from the 1998 EEOC charge filed by his \nbrother. Mr. Cervantes’s discrimination complaint alleges \nthat the adverse employment conduct was based on his race \nand his own internal complaints about race and national \norigin discrimination. The allegations in his complaint de‐\nscribe different hostilities that arose at different times, e.g., \nfollowing his apprenticeship, and that involved different in‐\n\f8 No. 17‐3536 \n\ndividuals, namely Jones and Spells. These allegations never \nwere mentioned in the charge. The administrative retaliation \ncharge therefore never gave Ardagh reasonable notice of \nMr. Cervantes’s discrimination claims, nor did it provide \nArdagh and the agency an opportunity to resolve his con‐\ncerns before they ripened into this suit. \n Mr. Cervantes further submits that the March 31, 2016 \nletter from his attorney to the IDHR in response to an in‐\nquiry from the agency expanded the scope of his charge. In \nthe final section of the letter, titled “On the Basis of Retalia‐\ntion,” his counsel wrote that, “After completing his 4 year \napprenticeship program and working for several years as a \nrotating shift mechanic,” Mr. Cervantes “desired to be \nplaced on a straight day shift. Yet, because of his race, the \ndecision makers at the company refused to promote him.”10 \nHe added that Mr. Cervantes’s “family is of Hispanic back‐\nground, and he felt that this was the reason he was not being \npromoted at [Ardagh], despite being as qualified—or more \nso—than those who were in fact being promoted.”11 \n Even if we were to assume that this letter should have \nalerted the agency investigators to the possibility of discrim‐\nination, we must remember that his counsel submitted the \nletter to the IDHR ex parte; it therefore did not provide \nArdagh with any notice of Mr. Cervantes’s potential dis‐\ncrimination claims. See O’Rourke v. Continental Cas. Co., 983 \nF.2d 94, 97 (7th Cir. 1993) (holding that a follow‐up memo‐\nrandum submitted by plaintiff to the EEOC did not enlarge \n \n10 R.39‐12 ¶ ZZ1. \n\n11 Id. ¶ ZZ4. \n\fNo. 17‐3536 9\n\nthe scope of his charge of discrimination to include a claim \nfor retaliation because, even if his submission “should have \nalerted the EEOC, [it] did nothing to alert the employer”). \nFurthermore, the letter indicates that Mr. Cervantes’s attor‐\nney understood these allegations to be part of a theory of \ndiscrimination based on retaliation, as alleged in the IDHR \ncharge, not a separate theory of discrimination based on race \nand national origin. Where, as here, a plaintiff is assisted by \ncounsel, it is “not unreasonable to require some additional \nspecificity or detail as a condition precedent for permitting” \nthe plaintiff to assert a claim that was not originally included \nin the administrative charge. Rush, 966 F.2d at 1112. \n Accordingly, we must conclude that Mr. Cervantes’s dis‐\ncrimination claims were not within the scope of his retalia‐\ntion charge, and that the district court properly granted \nsummary judgment for Ardagh on those claims. \n B. \n We turn next to Mr. Cervantes’s retaliation claim. To \nstate a claim for retaliation under Title VII, a plaintiff must \n“present evidence of (1) a statutorily protected activity; (2) a \nmaterially adverse action taken by the employer; and (3) a \ncausal connection between the two.” Volling v. Kurtz Para‐\nmedic Servs., Inc., 840 F.3d 378, 383 (7th Cir. 2016) (quoting \nTurner v. The Saloon, Ltd., 595 F.3d 679, 687 (7th Cir. 2010)). \n Mr. Cervantes contends that he presented sufficient evi‐\ndence to state a claim for retaliation. He alleged that he \ncomplained internally at Ardagh about race and national \norigin discrimination and that his supervisors subsequently \ndisciplined and demoted him for those complaints. Howev‐\ner, his deposition testimony clarified that he made his com‐\n\f10 No. 17‐3536 \n\nplaints not to anyone at Ardagh but to the union president \nand that he did not know whether the union president ever \nbrought his concerns to the attention of anyone at Ardagh.12 \nThe district court thus correctly concluded that Mr. Cervan‐\ntes’s retaliation claim fails as a matter of law because he did \nnot allege that he engaged in any protected activity. See, e.g., \nGleason v. Mesirow Fin., Inc., 118 F.3d 1134, 1147 (7th Cir. \n1997) (holding that plaintiff did not engage in statutorily \nprotected activity given that “she did not raise the subject of \nsexual harassment to anyone in authority”). \n Moreover, even if Mr. Cervantes has alleged that he en‐\ngaged in protected activity, his retaliation claim still fails be‐\ncause he conceded that none of his supervisors at Ardagh \nwere aware of his complaints. Therefore, there is no “causal \nconnection” between any protected activity and his disci‐\npline and demotion. See, e.g., King v. Ford Motor Co., 872 F.2d \n833, 842 (7th Cir. 2017) (concluding that plaintiff had “no \nsupport for a claim of retaliation” because she failed to \n“show[] that whoever was responsible for” her reassign‐\nments and denials of overtime “was aware of her protected \nactivity or was involved in the later actions”). \n Finally, Mr. Cervantes maintains that disputed facts, \nsuch as whether he agreed to work the second shift on June \n20, 2015, and whether Ardagh properly trained him, pre‐\nclude summary judgment on his retaliation claim. Because \nany such issues are irrelevant to the undisputed facts that \nMr. Cervantes did not complain about discrimination to an‐\nyone at Ardagh and that his supervisors were not aware of \n\n \n12 See R.44 at 8. \n\fNo. 17‐3536 11\n\nany complaints he may have made to the union, the district \ncourt properly granted summary judgment for Ardagh. \n Conclusion \n For the foregoing reasons, we affirm the judgment of the \ndistrict court. \n AFFIRMED\n[END_CASE]", "role": "user" } ]
4,585,523		Trustees of the Suburban Teams v. The E Company	2019-01-29	18-2273	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before EASTERBROOK, BARRETT, and SCUDDER, Circuit Judges.", "parties": "", "opinions": [{"author": "SCUDDER, Circuit Judge", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-2273\nTRUSTEES OF THE SUBURBAN TEAMSTERS OF NORTHERN ILLINOIS\nPENSION FUND,\n Plaintiff-Appellee,\n\n v.\n\nTHE E COMPANY, a dissolved Illinois Corporation, et al.,\n Defendants-Appellants.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 1:15-cv-10323 — Thomas M. Durkin, Judge.\n ____________________\n\n ARGUED JANUARY 18, 2019 — DECIDED JANUARY 29, 2019\n ____________________\n\n Before EASTERBROOK, BARRETT, and SCUDDER, Circuit\nJudges.\n SCUDDER, Circuit Judge. Under the terms of a collective\nbargaining agreement, T&W Edmier Corporation regularly\ncontributed on behalf of its employees to the Suburban\nTeamsters of Northern Illinois Pension Fund. But in 2014\nT&W ceased operations and cut oﬀ its pension contributions,\nprompting the Pension Fund to assess withdrawal liability of\n\f2 No. 18-2273\n\n$640,900. The Pension Fund sought to collect payment by\nmailing a notice of the withdrawal liability to T&W and\nseveral aﬃliated entities, only to see their collection eﬀorts\nignored. The Trustees of the Pension Fund eventually sued to\ncollect payment, and that action culminated in the district\ncourt ordering T&W, along with several other individuals and\nentities under common control, to pay the withdrawal\nliability. Now seeking to vacate the district court’s judgment,\nT&W and the other defendants argue that their due process\nrights were violated when the Pension Fund initiated\ncollection of the withdrawal liability by mailing notice to\nsome but not all of them. Seeing no error, we aﬃrm.\n I\n T&W Edmier Corporation operated a construction\nbusiness in tandem with The E Company. T&W owned the\nconstruction equipment while The E Company hired and\nprovided employees. Brothers Thomas and William Edmier\neach owned 50% of T&W. Kevin Edmier, William’s son,\nowned and operated The E Company. Pursuant to the terms\nof a collective bargaining agreement with its employees, T&W\nparticipated in the Suburban Teamsters of Northern Illinois\nmulti-employer pension plan, and, for its part, The E\nCompany agreed to assume joint and several liability for\nT&W’s obligations to the Pension Fund. In 2014, however,\nT&W and The E Company ceased operations, dissolved, and\nwithdrew from the plan.\n The Multiemployer Pension Plan Amendments to the Em-\nployee Retirement Income Security Act require a covered plan\nto assess withdrawal liability against a withdrawing em-\nployer. See 29 U.S.C. § 1396. Withdrawal liability, as its name\nimplies, is designed to prevent shifting the ﬁnancial burden\n\fNo. 18-2273 3\n\nof employees’ vested pension beneﬁts to other employers in\nthe multi-employer plan. We explained these principles at\nsome length in Central States, Southeast and Southwest Areas\nPension Fund v. Slotky, 956 F.2d 1369, 1371–72 (7th Cir. 1992).\n Consistent with ERISA’s mandate, the Pension Fund\nmailed a notice of withdrawal liability on April 30, 2015, a past\ndue notice on August 17, 2015, and a default and acceleration\nnotice on November 12, 2015. The notice went to T&W, The E\nCompany, and the Edmier Corporation (another entity\nwholly owned by Thomas Edmier). Even more speciﬁcally,\nthe Pension Fund sent the notice to the attention of Thomas,\nWilliam, and Kevin Edmier, as well as attorney George\nGrumley, the registered agent of both T&W and The E\nCompany. At their depositions, Thomas, William, and Kevin\nEdmier acknowledged receiving the notice.\n The Pension Fund’s notices went unanswered and, as a\nresult, the Pension Fund’s Trustees initiated a lawsuit in the\ndistrict court. Ignoring the Pension Fund’s requests for\npayment had signiﬁcant legal consequences for the\ndefendants. Congress has required that all disputes over\nwithdrawal liability be resolved through arbitration, see 29\nU.S.C. § 1401(a)(1), and an employer’s failure to arbitrate\nmeans “the plan can then immediately ﬁle suit to collect the\nentire amount of withdrawal liability, and in that proceeding\nthe employer will have forfeited any defenses it could have\npresented to the arbitrator,” Nat’l Shopmen Pension Fund v.\nDISA Industries, Inc., 653 F.3d 573, 579 (7th Cir. 2011).\n Our case law has recognized a narrow exception to this\ngeneral rule of forfeiture for a party who “had absolutely no\nreason to believe that they might be deemed members of a\ncontrolled group” but is nonetheless sued and alleged to be\n\f4 No. 18-2273\n\nliable for another party’s withdrawal liability based on\nERISA’s “controlled group” provision. See Slotky, 956 F.2d at\n1373. The controlled group provision imputes liability to all\n“trades or businesses” under “common control” with another\nparty who is liable for the withdrawal liability. See 29 U.S.C.\n§ 1301(b)(1). And our decision in Slotky allows unsuspecting\ndefendants who are sued in district court but had no idea they\nmight be liable as members of a controlled group to litigate\nthat question—membership in a controlled group. See 956\nF.2d at 1373.\n Relying on this framework, the district court concluded\nthat T&W, The E Company, and the Edmier Corporation had\nforfeited all defenses to liability, including the defense that\nthey were not members of a controlled group, by failing to\narbitrate after receiving the Pension Fund’s notice of with-\ndrawal liability. This outcome reﬂected a straightforward ap-\nplication of these defendants not complying with the clear ar-\nbitration mandate in 29 U.S.C. § 1301(b)(1).\n As for each of the other defendants (Thomas, William, and\nKevin Edmier; K. Edmier & Sons LLC; The William Edmier\nTrust; Lake Street Realty, Inc.; and E&E Equipment & Leas-\ning), the district court explained that they too had likely for-\nfeited all defenses as they were not the type of unsuspecting\ndefendant contemplated in Slotky. Put diﬀerently, the district\ncourt reasoned that none of these defendants had such a cred-\nible claim of surprise (at being a member of a controlled\ngroup) to sidestep ERISA’s arbitration requirement. Regard-\nless, the district court went further and determined as a fac-\ntual matter that each of these defendants was a trade or busi-\nness under common control with another party who received\nthe notice of withdrawal liability. This reasoning ﬁnds strong\n\fNo. 18-2273 5\n\nsupport in the record and resulted in the district court con-\ncluding that each of these defendants was liable under\nERISA’s controlled group provision.\n In the end, the district court entered summary judgment\nfor the Pension Fund’s Trustees and ordered the defendants\nto pay the full $640,900 of withdrawal liability, plus interest,\nliquidated damages, attorneys’ fees, and costs. As members of\na controlled group, each of the defendants became jointly and\nseverally liable for payment. See Central States, Southeast and\nSouthwest Areas Pension Fund v. Koder, 969 F.2d 451, 452 (7th\nCir. 1992) (citing 29 U.S.C. § 1301(b)(1)).\n II\n The defendants challenge the district court’s judgment by\narguing that the Pension Fund’s notice of withdrawal liability\nviolated the Fifth Amendment’s Due Process Clause. In their\nview, the Supreme Court’s decision in Mullane v. Central\nHanover Bank & Trust Co., 339 U.S. 306 (1950) required the\nPension Fund to serve the notice of withdrawal liability on\neach of them and to explain the standard for controlled group\nliability under ERISA in the notice. This contention misses the\nmark.\n The defendants’ reliance on Mullane is misplaced because\nall parties agree that judicial proceedings commenced in the\ndistrict court with proper service of process (notice of the\ncomplaint) to each defendant. The due process standard an-\nnounced in Mullane—a decision requiring suﬃcient notice of\na pending judicial proceeding—was therefore satisﬁed. No\nreading of Mullane, however, supports the view that ERISA’s\ncontrolled group liability provisions and accompanying\n\f6 No. 18-2273\n\nprocedural framework (in which a defendant forfeits certain\ndefenses by failing to arbitrate) violate due process.\n A related observation is in order. The defendants colloqui-\nally and imprecisely allege a violation of due process, time\nand again citing Mullane. In no way, shape, or form did any\ndue process violation occur here. The defendants who re-\nceived—but chose to ignore—the notice of withdrawal liabil-\nity had every opportunity to arbitrate and yet failed to do so,\nresulting, by operation of ERISA, in a waiver of all defenses\nto withdrawal liability. No unfairness inheres in that out-\ncome. And, as for the defendants who did not receive the no-\ntice of withdrawal liability but nonetheless found themselves\nnamed in a federal lawsuit, the district court provided them a\nfull and fair opportunity to litigate their liability as members\nof a controlled group. Nothing about the path those defend-\nants traveled oﬀends due process.\n For these reasons, we AFFIRM.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4362776/", "author_raw": "SCUDDER, Circuit Judge"}]}	EASTERBROOK	BARRETT	SCUDDER	1		{"EASTERBROOK": ", Circuit", "BARRETT": ", Circuit", "SCUDDER": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4585523/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Trustees of the Suburban Teams v. The E Company\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-29\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-2273\nTRUSTEES OF THE SUBURBAN TEAMSTERS OF NORTHERN ILLINOIS\nPENSION FUND,\n Plaintiff-Appellee,\n\n v.\n\nTHE E COMPANY, a dissolved Illinois Corporation, et al.,\n Defendants-Appellants.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 1:15-cv-10323 — Thomas M. Durkin, Judge.\n ____________________\n\n ARGUED JANUARY 18, 2019 — DECIDED JANUARY 29, 2019\n ____________________\n\n Before EASTERBROOK, BARRETT, and SCUDDER, Circuit\nJudges.\n SCUDDER, Circuit Judge. Under the terms of a collective\nbargaining agreement, T&W Edmier Corporation regularly\ncontributed on behalf of its employees to the Suburban\nTeamsters of Northern Illinois Pension Fund. But in 2014\nT&W ceased operations and cut oﬀ its pension contributions,\nprompting the Pension Fund to assess withdrawal liability of\n\f2 No. 18-2273\n\n$640,900. The Pension Fund sought to collect payment by\nmailing a notice of the withdrawal liability to T&W and\nseveral aﬃliated entities, only to see their collection eﬀorts\nignored. The Trustees of the Pension Fund eventually sued to\ncollect payment, and that action culminated in the district\ncourt ordering T&W, along with several other individuals and\nentities under common control, to pay the withdrawal\nliability. Now seeking to vacate the district court’s judgment,\nT&W and the other defendants argue that their due process\nrights were violated when the Pension Fund initiated\ncollection of the withdrawal liability by mailing notice to\nsome but not all of them. Seeing no error, we aﬃrm.\n I\n T&W Edmier Corporation operated a construction\nbusiness in tandem with The E Company. T&W owned the\nconstruction equipment while The E Company hired and\nprovided employees. Brothers Thomas and William Edmier\neach owned 50% of T&W. Kevin Edmier, William’s son,\nowned and operated The E Company. Pursuant to the terms\nof a collective bargaining agreement with its employees, T&W\nparticipated in the Suburban Teamsters of Northern Illinois\nmulti-employer pension plan, and, for its part, The E\nCompany agreed to assume joint and several liability for\nT&W’s obligations to the Pension Fund. In 2014, however,\nT&W and The E Company ceased operations, dissolved, and\nwithdrew from the plan.\n The Multiemployer Pension Plan Amendments to the Em-\nployee Retirement Income Security Act require a covered plan\nto assess withdrawal liability against a withdrawing em-\nployer. See 29 U.S.C. § 1396. Withdrawal liability, as its name\nimplies, is designed to prevent shifting the ﬁnancial burden\n\fNo. 18-2273 3\n\nof employees’ vested pension beneﬁts to other employers in\nthe multi-employer plan. We explained these principles at\nsome length in Central States, Southeast and Southwest Areas\nPension Fund v. Slotky, 956 F.2d 1369, 1371–72 (7th Cir. 1992).\n Consistent with ERISA’s mandate, the Pension Fund\nmailed a notice of withdrawal liability on April 30, 2015, a past\ndue notice on August 17, 2015, and a default and acceleration\nnotice on November 12, 2015. The notice went to T&W, The E\nCompany, and the Edmier Corporation (another entity\nwholly owned by Thomas Edmier). Even more speciﬁcally,\nthe Pension Fund sent the notice to the attention of Thomas,\nWilliam, and Kevin Edmier, as well as attorney George\nGrumley, the registered agent of both T&W and The E\nCompany. At their depositions, Thomas, William, and Kevin\nEdmier acknowledged receiving the notice.\n The Pension Fund’s notices went unanswered and, as a\nresult, the Pension Fund’s Trustees initiated a lawsuit in the\ndistrict court. Ignoring the Pension Fund’s requests for\npayment had signiﬁcant legal consequences for the\ndefendants. Congress has required that all disputes over\nwithdrawal liability be resolved through arbitration, see 29\nU.S.C. § 1401(a)(1), and an employer’s failure to arbitrate\nmeans “the plan can then immediately ﬁle suit to collect the\nentire amount of withdrawal liability, and in that proceeding\nthe employer will have forfeited any defenses it could have\npresented to the arbitrator,” Nat’l Shopmen Pension Fund v.\nDISA Industries, Inc., 653 F.3d 573, 579 (7th Cir. 2011).\n Our case law has recognized a narrow exception to this\ngeneral rule of forfeiture for a party who “had absolutely no\nreason to believe that they might be deemed members of a\ncontrolled group” but is nonetheless sued and alleged to be\n\f4 No. 18-2273\n\nliable for another party’s withdrawal liability based on\nERISA’s “controlled group” provision. See Slotky, 956 F.2d at\n1373. The controlled group provision imputes liability to all\n“trades or businesses” under “common control” with another\nparty who is liable for the withdrawal liability. See 29 U.S.C.\n§ 1301(b)(1). And our decision in Slotky allows unsuspecting\ndefendants who are sued in district court but had no idea they\nmight be liable as members of a controlled group to litigate\nthat question—membership in a controlled group. See 956\nF.2d at 1373.\n Relying on this framework, the district court concluded\nthat T&W, The E Company, and the Edmier Corporation had\nforfeited all defenses to liability, including the defense that\nthey were not members of a controlled group, by failing to\narbitrate after receiving the Pension Fund’s notice of with-\ndrawal liability. This outcome reﬂected a straightforward ap-\nplication of these defendants not complying with the clear ar-\nbitration mandate in 29 U.S.C. § 1301(b)(1).\n As for each of the other defendants (Thomas, William, and\nKevin Edmier; K. Edmier & Sons LLC; The William Edmier\nTrust; Lake Street Realty, Inc.; and E&E Equipment & Leas-\ning), the district court explained that they too had likely for-\nfeited all defenses as they were not the type of unsuspecting\ndefendant contemplated in Slotky. Put diﬀerently, the district\ncourt reasoned that none of these defendants had such a cred-\nible claim of surprise (at being a member of a controlled\ngroup) to sidestep ERISA’s arbitration requirement. Regard-\nless, the district court went further and determined as a fac-\ntual matter that each of these defendants was a trade or busi-\nness under common control with another party who received\nthe notice of withdrawal liability. This reasoning ﬁnds strong\n\fNo. 18-2273 5\n\nsupport in the record and resulted in the district court con-\ncluding that each of these defendants was liable under\nERISA’s controlled group provision.\n In the end, the district court entered summary judgment\nfor the Pension Fund’s Trustees and ordered the defendants\nto pay the full $640,900 of withdrawal liability, plus interest,\nliquidated damages, attorneys’ fees, and costs. As members of\na controlled group, each of the defendants became jointly and\nseverally liable for payment. See Central States, Southeast and\nSouthwest Areas Pension Fund v. Koder, 969 F.2d 451, 452 (7th\nCir. 1992) (citing 29 U.S.C. § 1301(b)(1)).\n II\n The defendants challenge the district court’s judgment by\narguing that the Pension Fund’s notice of withdrawal liability\nviolated the Fifth Amendment’s Due Process Clause. In their\nview, the Supreme Court’s decision in Mullane v. Central\nHanover Bank & Trust Co., 339 U.S. 306 (1950) required the\nPension Fund to serve the notice of withdrawal liability on\neach of them and to explain the standard for controlled group\nliability under ERISA in the notice. This contention misses the\nmark.\n The defendants’ reliance on Mullane is misplaced because\nall parties agree that judicial proceedings commenced in the\ndistrict court with proper service of process (notice of the\ncomplaint) to each defendant. The due process standard an-\nnounced in Mullane—a decision requiring suﬃcient notice of\na pending judicial proceeding—was therefore satisﬁed. No\nreading of Mullane, however, supports the view that ERISA’s\ncontrolled group liability provisions and accompanying\n\f6 No. 18-2273\n\nprocedural framework (in which a defendant forfeits certain\ndefenses by failing to arbitrate) violate due process.\n A related observation is in order. The defendants colloqui-\nally and imprecisely allege a violation of due process, time\nand again citing Mullane. In no way, shape, or form did any\ndue process violation occur here. The defendants who re-\nceived—but chose to ignore—the notice of withdrawal liabil-\nity had every opportunity to arbitrate and yet failed to do so,\nresulting, by operation of ERISA, in a waiver of all defenses\nto withdrawal liability. No unfairness inheres in that out-\ncome. And, as for the defendants who did not receive the no-\ntice of withdrawal liability but nonetheless found themselves\nnamed in a federal lawsuit, the district court provided them a\nfull and fair opportunity to litigate their liability as members\nof a controlled group. Nothing about the path those defend-\nants traveled oﬀends due process.\n For these reasons, we AFFIRM.\n[END_CASE]", "role": "user" } ]
4,585,524		Juan Cervantes v. Ardagh Group	2019-01-29	17-3536	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before WOOD, Chief Judge, and RIPPLE, and BARRETT, Circuit Judges.", "parties": "", "opinions": [{"author": "Kenneth Francis Ripple", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________ \nNo. 17‐3536 \nJUAN CERVANTES, \n Plaintiff‐Appellant, \n v. \n\nARDAGH GROUP, \n Defendant‐Appellee. \n ____________________ \n\n Appeal from the United States District Court for the \n Northern District of Illinois, Eastern Division. \n No. 1:16‐cv‐11080 — Ronald A. Guzmán, Judge. \n ____________________ \n\n ARGUED DECEMBER 11, 2018 — DECIDED JANUARY 29, 2019 \n ____________________ \n\n Before WOOD, Chief Judge, and RIPPLE, and BARRETT, \nCircuit Judges. \n RIPPLE, Circuit Judge. Juan Cervantes brought this action \nagainst his employer, Ardagh Group (“Ardagh”), alleging \nviolations of Title VII of the Civil Rights Act of 1964, 42 \nU.S.C. § 2000e et seq., and the Illinois Human Rights Act, 775 \nILCS 5/1‐101 et seq. (“IHRA”). The complaint asserted that \nArdagh had refused to promote him, had issued him per‐\nformance warnings, and had demoted him because of his \n\f2 No. 17‐3536 \n\nrace and national origin and in retaliation for previous com‐\nplaints about discrimination and harassment. The district \ncourt granted summary judgment in favor of Ardagh. \n The district court’s decision is correct. Mr. Cervantes did \nnot exhaust his administrative remedies for his discrimina‐\ntion claims. His retaliation claim also must fail because there \nis no evidence of a causal connection between any protected \nactivity by Mr. Cervantes and an adverse employment action \nby Ardagh. Accordingly, we affirm the judgment of the dis‐\ntrict court. \n I \n BACKGROUND \n Mr. Cervantes began his career at Ardagh in 1991 as a \npallet loader. He was promoted to fork lift driver in 1998 \nand to electro‐mechanic in 2000. His complaint followed an \nincident that took place in 2015. Taking the facts in the light \n 1\nmost favorable to Mr. Cervantes, on June 20, 2015, after \ncompleting his shift, he remained at the Ardagh facility to \nassist his father, a fellow Ardagh employee, with fixing a \nmachine. During this second shift, supervisor Katina Stewart \nattempted to call Mr. Cervantes on his radio, but could not \nreach him. When Stewart located Mr. Cervantes in the facili‐\nty, he explained that he had not responded to the radio calls \nbecause he was not working a second shift; he was only stay‐\n \n1 The relevant facts are contested. On review of the district court’s grant \n\nof summary judgment for Ardagh, we resolve any disputed facts in fa‐\nvor of the non‐moving party, Mr. Cervantes, and “draw[] all reasonable \ninferences from the facts in his favor.” Dietchweiler v. Lucas, 827 F.3d 622, \n627 (7th Cir. 2016). \n\fNo. 17‐3536 3\n\ning past his shift to help his father. Stewart informed \nMr. Cervantes that if he was not accepting assignments for \nthe second shift, he must leave the facility. He eventually \ncomplied. Stewart reported the incident, and Mr. Cervantes \nwas written up for insubordination and temporarily sus‐\npended. Following an investigation, Ardagh demoted \nMr. Cervantes from electro‐mechanic to forklift driver. \n On September 3, 2015, Mr. Cervantes filed a charge with \nthe Illinois Department of Human Rights (“IDHR”). In the \nsection of the form titled “Discrimination Based On,” Mr. \nCervantes checked only the box for “Retaliation.”2 He did \nnot check the box for race, national origin, or any other basis \nof discrimination. The IDHR commenced an investigation \ninto his allegations, seeking additional information from \nMr. Cervantes and from Ardagh. By March 31, 2016, Mr. \nCervantes had retained counsel, who sent a letter to IDHR \non his behalf in response to the agency’s questions about the \ncharge. On July 13, 2016, the IDHR dismissed Mr. Cervan‐\ntes’s charge, finding a lack of substantial evidence to support \nhis allegations. \n On December 5, 2016, Mr. Cervantes filed a complaint in \nthe district court. He alleged that Ardagh had violated Title \nVII and the IHRA by failing to promote him, issuing him \nperformance warnings, and demoting him based on his race \nand national origin and in retaliation for his previous com‐\nplaints about harassment and discrimination. Ardagh \n\n\n\n \n2 See R.32 at 4 (Mr. Cervantes’s IDHR Charge (Sept. 3, 2015)). \n\f4 No. 17‐3536 \n\nmoved for summary judgment on all claims, and the district \ncourt granted that motion.3 \n The district court first determined that Mr. Cervantes \ncould not proceed on his claims for race and national origin \ndiscrimination because he had failed to exhaust his adminis‐\ntrative remedies and because these allegations were not rea‐\nsonably related to his retaliation charge. The district court \nthen concluded that Mr. Cervantes had failed to state a claim \nfor retaliation because he had not established that he en‐\ngaged in protected activity. He also failed to offer any evi‐\ndence that his supervisors were aware of any complaints he \nraised and therefore did not demonstrate a causal connec‐\ntion between any protected activity and an adverse em‐\nployment action. The district court entered judgment in fa‐\nvor of Ardagh on November 14, 2017, and Mr. Cervantes \ntimely appealed. \n II \n DISCUSSION \n We review the district court’s grant of summary judg‐\nment de novo. Ortiz v. John O. Butler Co., 94 F.3d 1121, 1124 \n(7th Cir. 1996). “We will not resolve factual disputes or \nweigh conflicting evidence,” but “will only determine \nwhether a genuine issue of material fact exists for trial.” Id. \n 4\nAs we noted earlier, this inquiry requires that we “view the \n \n3 In his complaint, Mr. Cervantes also asserted a claim under Illinois \n\nstate law for intentional infliction of emotional distress. The district court \ngranted summary judgment for Ardagh on that claim, and Mr. Cervan‐\ntes does not challenge that ruling in this appeal. \n4 See supra note 1 and accompanying text. \n\fNo. 17‐3536 5\n\nevidence and draw all inferences in a way most favorable to \nthe nonmoving party.” Id. “If the nonmoving party fails to \nestablish the existence of an element essential to his case, one \non which he would bear the burden of proof at trial, sum‐\nmary judgment must be granted to the moving party.” Id. \n A. \n Mr. Cervantes first submits that the district court erred \nwhen it determined that he had not exhausted his adminis‐\ntrative remedies for his claims of discrimination based on \nrace and national origin. We cannot accept this argument. \n In general, a plaintiff can only bring claims under Title \nVII or the IHRA that he has included in the original charge \nfiled with the Equal Employment Opportunity Commission \n(“EEOC”) or the IDHR.5 Sitar v. Indiana Dep’t of Transp., 344 \nF.3d 720, 726 (7th Cir. 2003). This limitation serves two pur‐\nposes. It affords the employer some notice of the conduct \nunderlying the employee’s allegation. It also “affords the \nagency and the employer an opportunity to attempt concilia‐\ntion without resort to the courts.” Rush v. McDonald’s Corp., \n966 F.2d 1104, 1110 (7th Cir. 1992). \n Here, Mr. Cervantes initially filed a charge with the \nIDHR and checked only the box for discrimination based on \nretaliation. He did not check the box for discrimination \nbased on race, national origin, or any other protected charac‐\nteristic. He described the “particulars” of his charge as fol‐\nlows: \n \n5 The EEOC and the IDHR “have a work sharing arrangement providing \n\nthat a charge filed with one is deemed cross‐filed with the other.” \nMcQueen v. City of Chi., 803 F. Supp. 2d 892, 902–03 (N.D. Ill. 2011). \n\f6 No. 17‐3536 \n\n I began my employment with Respondent \n [Ardagh] in or around May 1991. My current \n position is Forklift Driver. A family member \n filed EEOC Charge No. 210‐1998‐00397 against \n Respondent. During my employment, I have \n been subjected to discipline, harassment, and I \n have been demoted. \n I believe I have been discriminated against in \n retaliation, in violation of Title VII of the Civil \n Rights Act of 1964, as amended.6 \n In his complaint, by contrast, he alleged that Ardagh had \nfailed to promote him, had issued him performance warn‐\nings, and had demoted him based on his race and national \norigin. He further asserted that, after completing a four‐year \napprenticeship and working as a “rotating shift mechanic” \nfor several years, “because of his race, the decision makers at \nthe company refused to promote him.”7 He alleged that he \n“had previously complained to his superiors of discrimina‐\ntion and harassment” based on his Hispanic background, \nwhich “led to his superiors issuing poor job performance \nwarnings, about which Cervantes filed grievances with the \nunion because these warnings were retaliatory.”8 He added \nthat “[t]hese superiors were Tom Jones, Maintenance Super‐\nvisor, and Don Spells, Shift Supervisor.”9 \n\n \n6 R.32 at 4. \n\n7 R.39‐4 ¶ 6. \n\n8 Id. ¶ 10. \n\n9 Id. \n\fNo. 17‐3536 7\n\n The district court concluded that the claims of discrimi‐\nnation in Mr. Cervantes’s court complaint were outside the \nscope of his retaliation charge filed with the IDHR. Mr. Cer‐\nvantes contends, however, that his discrimination claims sat‐\nisfy a recognized exception for “claims that are ‘like or rea‐\nsonably related’ to the EEOC charge, and can be reasonably \nexpected to grow out of an EEOC investigation of the charg‐\nes.” Sitar, 344 F.3d at 726 (quoting Jenkins v. Blue Cross Mut. \nHosp. Ins., Inc., 538 F.2d 164, 167 (7th Cir. 1976) (en banc)). As \na general matter, we do not consider a retaliation charge to \nbe reasonably related to a discrimination claim. Id. The \ncharge and the complaint may be reasonably related if, “at a \nminimum,” they “describe the same circumstances and par‐\nticipants.” Conner v. Illinois Dep’t of Natural Res., 413 F.3d 675, \n680 (7th Cir. 2005). \n Mr. Cervantes believes that his discrimination claims in \nthis action are reasonably related to his retaliation charge \nfiled with the IDHR because both involve the same entity \n(Ardagh), the same conduct (his discipline and demotion), \nand the same time frame (his tenure at Ardagh). These simi‐\nlarities occur, however, at far too high a level of generality. \nA simple comparison of his administrative retaliation charge \nand his court discrimination complaint starkly reveals that \nthey arise out of very different conduct in very different time \nperiods. His administrative retaliation charge focuses on \nconduct stemming from the 1998 EEOC charge filed by his \nbrother. Mr. Cervantes’s discrimination complaint alleges \nthat the adverse employment conduct was based on his race \nand his own internal complaints about race and national \norigin discrimination. The allegations in his complaint de‐\nscribe different hostilities that arose at different times, e.g., \nfollowing his apprenticeship, and that involved different in‐\n\f8 No. 17‐3536 \n\ndividuals, namely Jones and Spells. These allegations never \nwere mentioned in the charge. The administrative retaliation \ncharge therefore never gave Ardagh reasonable notice of \nMr. Cervantes’s discrimination claims, nor did it provide \nArdagh and the agency an opportunity to resolve his con‐\ncerns before they ripened into this suit. \n Mr. Cervantes further submits that the March 31, 2016 \nletter from his attorney to the IDHR in response to an in‐\nquiry from the agency expanded the scope of his charge. In \nthe final section of the letter, titled “On the Basis of Retalia‐\ntion,” his counsel wrote that, “After completing his 4 year \napprenticeship program and working for several years as a \nrotating shift mechanic,” Mr. Cervantes “desired to be \nplaced on a straight day shift. Yet, because of his race, the \ndecision makers at the company refused to promote him.”10 \nHe added that Mr. Cervantes’s “family is of Hispanic back‐\nground, and he felt that this was the reason he was not being \npromoted at [Ardagh], despite being as qualified—or more \nso—than those who were in fact being promoted.”11 \n Even if we were to assume that this letter should have \nalerted the agency investigators to the possibility of discrim‐\nination, we must remember that his counsel submitted the \nletter to the IDHR ex parte; it therefore did not provide \nArdagh with any notice of Mr. Cervantes’s potential dis‐\ncrimination claims. See O’Rourke v. Continental Cas. Co., 983 \nF.2d 94, 97 (7th Cir. 1993) (holding that a follow‐up memo‐\nrandum submitted by plaintiff to the EEOC did not enlarge \n \n10 R.39‐12 ¶ ZZ1. \n\n11 Id. ¶ ZZ4. \n\fNo. 17‐3536 9\n\nthe scope of his charge of discrimination to include a claim \nfor retaliation because, even if his submission “should have \nalerted the EEOC, [it] did nothing to alert the employer”). \nFurthermore, the letter indicates that Mr. Cervantes’s attor‐\nney understood these allegations to be part of a theory of \ndiscrimination based on retaliation, as alleged in the IDHR \ncharge, not a separate theory of discrimination based on race \nand national origin. Where, as here, a plaintiff is assisted by \ncounsel, it is “not unreasonable to require some additional \nspecificity or detail as a condition precedent for permitting” \nthe plaintiff to assert a claim that was not originally included \nin the administrative charge. Rush, 966 F.2d at 1112. \n Accordingly, we must conclude that Mr. Cervantes’s dis‐\ncrimination claims were not within the scope of his retalia‐\ntion charge, and that the district court properly granted \nsummary judgment for Ardagh on those claims. \n B. \n We turn next to Mr. Cervantes’s retaliation claim. To \nstate a claim for retaliation under Title VII, a plaintiff must \n“present evidence of (1) a statutorily protected activity; (2) a \nmaterially adverse action taken by the employer; and (3) a \ncausal connection between the two.” Volling v. Kurtz Para‐\nmedic Servs., Inc., 840 F.3d 378, 383 (7th Cir. 2016) (quoting \nTurner v. The Saloon, Ltd., 595 F.3d 679, 687 (7th Cir. 2010)). \n Mr. Cervantes contends that he presented sufficient evi‐\ndence to state a claim for retaliation. He alleged that he \ncomplained internally at Ardagh about race and national \norigin discrimination and that his supervisors subsequently \ndisciplined and demoted him for those complaints. Howev‐\ner, his deposition testimony clarified that he made his com‐\n\f10 No. 17‐3536 \n\nplaints not to anyone at Ardagh but to the union president \nand that he did not know whether the union president ever \nbrought his concerns to the attention of anyone at Ardagh.12 \nThe district court thus correctly concluded that Mr. Cervan‐\ntes’s retaliation claim fails as a matter of law because he did \nnot allege that he engaged in any protected activity. See, e.g., \nGleason v. Mesirow Fin., Inc., 118 F.3d 1134, 1147 (7th Cir. \n1997) (holding that plaintiff did not engage in statutorily \nprotected activity given that “she did not raise the subject of \nsexual harassment to anyone in authority”). \n Moreover, even if Mr. Cervantes has alleged that he en‐\ngaged in protected activity, his retaliation claim still fails be‐\ncause he conceded that none of his supervisors at Ardagh \nwere aware of his complaints. Therefore, there is no “causal \nconnection” between any protected activity and his disci‐\npline and demotion. See, e.g., King v. Ford Motor Co., 872 F.2d \n833, 842 (7th Cir. 2017) (concluding that plaintiff had “no \nsupport for a claim of retaliation” because she failed to \n“show[] that whoever was responsible for” her reassign‐\nments and denials of overtime “was aware of her protected \nactivity or was involved in the later actions”). \n Finally, Mr. Cervantes maintains that disputed facts, \nsuch as whether he agreed to work the second shift on June \n20, 2015, and whether Ardagh properly trained him, pre‐\nclude summary judgment on his retaliation claim. Because \nany such issues are irrelevant to the undisputed facts that \nMr. Cervantes did not complain about discrimination to an‐\nyone at Ardagh and that his supervisors were not aware of \n\n \n12 See R.44 at 8. \n\fNo. 17‐3536 11\n\nany complaints he may have made to the union, the district \ncourt properly granted summary judgment for Ardagh. \n Conclusion \n For the foregoing reasons, we affirm the judgment of the \ndistrict court. \n AFFIRMED", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4362777/", "author_raw": "Kenneth Francis Ripple"}]}	WOOD	RIPPLE	BARRETT	1		{"WOOD": ", Chief", "RIPPLE": ", Circuit", "BARRETT": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4585524/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Juan Cervantes v. Ardagh Group\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-29\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________ \nNo. 17‐3536 \nJUAN CERVANTES, \n Plaintiff‐Appellant, \n v. \n\nARDAGH GROUP, \n Defendant‐Appellee. \n ____________________ \n\n Appeal from the United States District Court for the \n Northern District of Illinois, Eastern Division. \n No. 1:16‐cv‐11080 — Ronald A. Guzmán, Judge. \n ____________________ \n\n ARGUED DECEMBER 11, 2018 — DECIDED JANUARY 29, 2019 \n ____________________ \n\n Before WOOD, Chief Judge, and RIPPLE, and BARRETT, \nCircuit Judges. \n RIPPLE, Circuit Judge. Juan Cervantes brought this action \nagainst his employer, Ardagh Group (“Ardagh”), alleging \nviolations of Title VII of the Civil Rights Act of 1964, 42 \nU.S.C. § 2000e et seq., and the Illinois Human Rights Act, 775 \nILCS 5/1‐101 et seq. (“IHRA”). The complaint asserted that \nArdagh had refused to promote him, had issued him per‐\nformance warnings, and had demoted him because of his \n\f2 No. 17‐3536 \n\nrace and national origin and in retaliation for previous com‐\nplaints about discrimination and harassment. The district \ncourt granted summary judgment in favor of Ardagh. \n The district court’s decision is correct. Mr. Cervantes did \nnot exhaust his administrative remedies for his discrimina‐\ntion claims. His retaliation claim also must fail because there \nis no evidence of a causal connection between any protected \nactivity by Mr. Cervantes and an adverse employment action \nby Ardagh. Accordingly, we affirm the judgment of the dis‐\ntrict court. \n I \n BACKGROUND \n Mr. Cervantes began his career at Ardagh in 1991 as a \npallet loader. He was promoted to fork lift driver in 1998 \nand to electro‐mechanic in 2000. His complaint followed an \nincident that took place in 2015. Taking the facts in the light \n 1\nmost favorable to Mr. Cervantes, on June 20, 2015, after \ncompleting his shift, he remained at the Ardagh facility to \nassist his father, a fellow Ardagh employee, with fixing a \nmachine. During this second shift, supervisor Katina Stewart \nattempted to call Mr. Cervantes on his radio, but could not \nreach him. When Stewart located Mr. Cervantes in the facili‐\nty, he explained that he had not responded to the radio calls \nbecause he was not working a second shift; he was only stay‐\n \n1 The relevant facts are contested. On review of the district court’s grant \n\nof summary judgment for Ardagh, we resolve any disputed facts in fa‐\nvor of the non‐moving party, Mr. Cervantes, and “draw[] all reasonable \ninferences from the facts in his favor.” Dietchweiler v. Lucas, 827 F.3d 622, \n627 (7th Cir. 2016). \n\fNo. 17‐3536 3\n\ning past his shift to help his father. Stewart informed \nMr. Cervantes that if he was not accepting assignments for \nthe second shift, he must leave the facility. He eventually \ncomplied. Stewart reported the incident, and Mr. Cervantes \nwas written up for insubordination and temporarily sus‐\npended. Following an investigation, Ardagh demoted \nMr. Cervantes from electro‐mechanic to forklift driver. \n On September 3, 2015, Mr. Cervantes filed a charge with \nthe Illinois Department of Human Rights (“IDHR”). In the \nsection of the form titled “Discrimination Based On,” Mr. \nCervantes checked only the box for “Retaliation.”2 He did \nnot check the box for race, national origin, or any other basis \nof discrimination. The IDHR commenced an investigation \ninto his allegations, seeking additional information from \nMr. Cervantes and from Ardagh. By March 31, 2016, Mr. \nCervantes had retained counsel, who sent a letter to IDHR \non his behalf in response to the agency’s questions about the \ncharge. On July 13, 2016, the IDHR dismissed Mr. Cervan‐\ntes’s charge, finding a lack of substantial evidence to support \nhis allegations. \n On December 5, 2016, Mr. Cervantes filed a complaint in \nthe district court. He alleged that Ardagh had violated Title \nVII and the IHRA by failing to promote him, issuing him \nperformance warnings, and demoting him based on his race \nand national origin and in retaliation for his previous com‐\nplaints about harassment and discrimination. Ardagh \n\n\n\n \n2 See R.32 at 4 (Mr. Cervantes’s IDHR Charge (Sept. 3, 2015)). \n\f4 No. 17‐3536 \n\nmoved for summary judgment on all claims, and the district \ncourt granted that motion.3 \n The district court first determined that Mr. Cervantes \ncould not proceed on his claims for race and national origin \ndiscrimination because he had failed to exhaust his adminis‐\ntrative remedies and because these allegations were not rea‐\nsonably related to his retaliation charge. The district court \nthen concluded that Mr. Cervantes had failed to state a claim \nfor retaliation because he had not established that he en‐\ngaged in protected activity. He also failed to offer any evi‐\ndence that his supervisors were aware of any complaints he \nraised and therefore did not demonstrate a causal connec‐\ntion between any protected activity and an adverse em‐\nployment action. The district court entered judgment in fa‐\nvor of Ardagh on November 14, 2017, and Mr. Cervantes \ntimely appealed. \n II \n DISCUSSION \n We review the district court’s grant of summary judg‐\nment de novo. Ortiz v. John O. Butler Co., 94 F.3d 1121, 1124 \n(7th Cir. 1996). “We will not resolve factual disputes or \nweigh conflicting evidence,” but “will only determine \nwhether a genuine issue of material fact exists for trial.” Id. \n 4\nAs we noted earlier, this inquiry requires that we “view the \n \n3 In his complaint, Mr. Cervantes also asserted a claim under Illinois \n\nstate law for intentional infliction of emotional distress. The district court \ngranted summary judgment for Ardagh on that claim, and Mr. Cervan‐\ntes does not challenge that ruling in this appeal. \n4 See supra note 1 and accompanying text. \n\fNo. 17‐3536 5\n\nevidence and draw all inferences in a way most favorable to \nthe nonmoving party.” Id. “If the nonmoving party fails to \nestablish the existence of an element essential to his case, one \non which he would bear the burden of proof at trial, sum‐\nmary judgment must be granted to the moving party.” Id. \n A. \n Mr. Cervantes first submits that the district court erred \nwhen it determined that he had not exhausted his adminis‐\ntrative remedies for his claims of discrimination based on \nrace and national origin. We cannot accept this argument. \n In general, a plaintiff can only bring claims under Title \nVII or the IHRA that he has included in the original charge \nfiled with the Equal Employment Opportunity Commission \n(“EEOC”) or the IDHR.5 Sitar v. Indiana Dep’t of Transp., 344 \nF.3d 720, 726 (7th Cir. 2003). This limitation serves two pur‐\nposes. It affords the employer some notice of the conduct \nunderlying the employee’s allegation. It also “affords the \nagency and the employer an opportunity to attempt concilia‐\ntion without resort to the courts.” Rush v. McDonald’s Corp., \n966 F.2d 1104, 1110 (7th Cir. 1992). \n Here, Mr. Cervantes initially filed a charge with the \nIDHR and checked only the box for discrimination based on \nretaliation. He did not check the box for discrimination \nbased on race, national origin, or any other protected charac‐\nteristic. He described the “particulars” of his charge as fol‐\nlows: \n \n5 The EEOC and the IDHR “have a work sharing arrangement providing \n\nthat a charge filed with one is deemed cross‐filed with the other.” \nMcQueen v. City of Chi., 803 F. Supp. 2d 892, 902–03 (N.D. Ill. 2011). \n\f6 No. 17‐3536 \n\n I began my employment with Respondent \n [Ardagh] in or around May 1991. My current \n position is Forklift Driver. A family member \n filed EEOC Charge No. 210‐1998‐00397 against \n Respondent. During my employment, I have \n been subjected to discipline, harassment, and I \n have been demoted. \n I believe I have been discriminated against in \n retaliation, in violation of Title VII of the Civil \n Rights Act of 1964, as amended.6 \n In his complaint, by contrast, he alleged that Ardagh had \nfailed to promote him, had issued him performance warn‐\nings, and had demoted him based on his race and national \norigin. He further asserted that, after completing a four‐year \napprenticeship and working as a “rotating shift mechanic” \nfor several years, “because of his race, the decision makers at \nthe company refused to promote him.”7 He alleged that he \n“had previously complained to his superiors of discrimina‐\ntion and harassment” based on his Hispanic background, \nwhich “led to his superiors issuing poor job performance \nwarnings, about which Cervantes filed grievances with the \nunion because these warnings were retaliatory.”8 He added \nthat “[t]hese superiors were Tom Jones, Maintenance Super‐\nvisor, and Don Spells, Shift Supervisor.”9 \n\n \n6 R.32 at 4. \n\n7 R.39‐4 ¶ 6. \n\n8 Id. ¶ 10. \n\n9 Id. \n\fNo. 17‐3536 7\n\n The district court concluded that the claims of discrimi‐\nnation in Mr. Cervantes’s court complaint were outside the \nscope of his retaliation charge filed with the IDHR. Mr. Cer‐\nvantes contends, however, that his discrimination claims sat‐\nisfy a recognized exception for “claims that are ‘like or rea‐\nsonably related’ to the EEOC charge, and can be reasonably \nexpected to grow out of an EEOC investigation of the charg‐\nes.” Sitar, 344 F.3d at 726 (quoting Jenkins v. Blue Cross Mut. \nHosp. Ins., Inc., 538 F.2d 164, 167 (7th Cir. 1976) (en banc)). As \na general matter, we do not consider a retaliation charge to \nbe reasonably related to a discrimination claim. Id. The \ncharge and the complaint may be reasonably related if, “at a \nminimum,” they “describe the same circumstances and par‐\nticipants.” Conner v. Illinois Dep’t of Natural Res., 413 F.3d 675, \n680 (7th Cir. 2005). \n Mr. Cervantes believes that his discrimination claims in \nthis action are reasonably related to his retaliation charge \nfiled with the IDHR because both involve the same entity \n(Ardagh), the same conduct (his discipline and demotion), \nand the same time frame (his tenure at Ardagh). These simi‐\nlarities occur, however, at far too high a level of generality. \nA simple comparison of his administrative retaliation charge \nand his court discrimination complaint starkly reveals that \nthey arise out of very different conduct in very different time \nperiods. His administrative retaliation charge focuses on \nconduct stemming from the 1998 EEOC charge filed by his \nbrother. Mr. Cervantes’s discrimination complaint alleges \nthat the adverse employment conduct was based on his race \nand his own internal complaints about race and national \norigin discrimination. The allegations in his complaint de‐\nscribe different hostilities that arose at different times, e.g., \nfollowing his apprenticeship, and that involved different in‐\n\f8 No. 17‐3536 \n\ndividuals, namely Jones and Spells. These allegations never \nwere mentioned in the charge. The administrative retaliation \ncharge therefore never gave Ardagh reasonable notice of \nMr. Cervantes’s discrimination claims, nor did it provide \nArdagh and the agency an opportunity to resolve his con‐\ncerns before they ripened into this suit. \n Mr. Cervantes further submits that the March 31, 2016 \nletter from his attorney to the IDHR in response to an in‐\nquiry from the agency expanded the scope of his charge. In \nthe final section of the letter, titled “On the Basis of Retalia‐\ntion,” his counsel wrote that, “After completing his 4 year \napprenticeship program and working for several years as a \nrotating shift mechanic,” Mr. Cervantes “desired to be \nplaced on a straight day shift. Yet, because of his race, the \ndecision makers at the company refused to promote him.”10 \nHe added that Mr. Cervantes’s “family is of Hispanic back‐\nground, and he felt that this was the reason he was not being \npromoted at [Ardagh], despite being as qualified—or more \nso—than those who were in fact being promoted.”11 \n Even if we were to assume that this letter should have \nalerted the agency investigators to the possibility of discrim‐\nination, we must remember that his counsel submitted the \nletter to the IDHR ex parte; it therefore did not provide \nArdagh with any notice of Mr. Cervantes’s potential dis‐\ncrimination claims. See O’Rourke v. Continental Cas. Co., 983 \nF.2d 94, 97 (7th Cir. 1993) (holding that a follow‐up memo‐\nrandum submitted by plaintiff to the EEOC did not enlarge \n \n10 R.39‐12 ¶ ZZ1. \n\n11 Id. ¶ ZZ4. \n\fNo. 17‐3536 9\n\nthe scope of his charge of discrimination to include a claim \nfor retaliation because, even if his submission “should have \nalerted the EEOC, [it] did nothing to alert the employer”). \nFurthermore, the letter indicates that Mr. Cervantes’s attor‐\nney understood these allegations to be part of a theory of \ndiscrimination based on retaliation, as alleged in the IDHR \ncharge, not a separate theory of discrimination based on race \nand national origin. Where, as here, a plaintiff is assisted by \ncounsel, it is “not unreasonable to require some additional \nspecificity or detail as a condition precedent for permitting” \nthe plaintiff to assert a claim that was not originally included \nin the administrative charge. Rush, 966 F.2d at 1112. \n Accordingly, we must conclude that Mr. Cervantes’s dis‐\ncrimination claims were not within the scope of his retalia‐\ntion charge, and that the district court properly granted \nsummary judgment for Ardagh on those claims. \n B. \n We turn next to Mr. Cervantes’s retaliation claim. To \nstate a claim for retaliation under Title VII, a plaintiff must \n“present evidence of (1) a statutorily protected activity; (2) a \nmaterially adverse action taken by the employer; and (3) a \ncausal connection between the two.” Volling v. Kurtz Para‐\nmedic Servs., Inc., 840 F.3d 378, 383 (7th Cir. 2016) (quoting \nTurner v. The Saloon, Ltd., 595 F.3d 679, 687 (7th Cir. 2010)). \n Mr. Cervantes contends that he presented sufficient evi‐\ndence to state a claim for retaliation. He alleged that he \ncomplained internally at Ardagh about race and national \norigin discrimination and that his supervisors subsequently \ndisciplined and demoted him for those complaints. Howev‐\ner, his deposition testimony clarified that he made his com‐\n\f10 No. 17‐3536 \n\nplaints not to anyone at Ardagh but to the union president \nand that he did not know whether the union president ever \nbrought his concerns to the attention of anyone at Ardagh.12 \nThe district court thus correctly concluded that Mr. Cervan‐\ntes’s retaliation claim fails as a matter of law because he did \nnot allege that he engaged in any protected activity. See, e.g., \nGleason v. Mesirow Fin., Inc., 118 F.3d 1134, 1147 (7th Cir. \n1997) (holding that plaintiff did not engage in statutorily \nprotected activity given that “she did not raise the subject of \nsexual harassment to anyone in authority”). \n Moreover, even if Mr. Cervantes has alleged that he en‐\ngaged in protected activity, his retaliation claim still fails be‐\ncause he conceded that none of his supervisors at Ardagh \nwere aware of his complaints. Therefore, there is no “causal \nconnection” between any protected activity and his disci‐\npline and demotion. See, e.g., King v. Ford Motor Co., 872 F.2d \n833, 842 (7th Cir. 2017) (concluding that plaintiff had “no \nsupport for a claim of retaliation” because she failed to \n“show[] that whoever was responsible for” her reassign‐\nments and denials of overtime “was aware of her protected \nactivity or was involved in the later actions”). \n Finally, Mr. Cervantes maintains that disputed facts, \nsuch as whether he agreed to work the second shift on June \n20, 2015, and whether Ardagh properly trained him, pre‐\nclude summary judgment on his retaliation claim. Because \nany such issues are irrelevant to the undisputed facts that \nMr. Cervantes did not complain about discrimination to an‐\nyone at Ardagh and that his supervisors were not aware of \n\n \n12 See R.44 at 8. \n\fNo. 17‐3536 11\n\nany complaints he may have made to the union, the district \ncourt properly granted summary judgment for Ardagh. \n Conclusion \n For the foregoing reasons, we affirm the judgment of the \ndistrict court. \n AFFIRMED\n[END_CASE]", "role": "user" } ]
4,585,525		Aleksey Ruderman v. Matthew G. Whitaker	2019-01-29	17-1689	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before WOOD, Chief Judge, and EASTERBROOK and BARRETT, Circuit Judges.", "parties": "", "opinions": [{"author": "BARRETT, Circuit Judge", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________ \nNo. 17‐1689 \nALEKSEY ARKADYEVICH RUDERMAN, \n Petitioner, \n v. \n\nMATTHEW G. WHITAKER, \nActing Attorney General of the United States, \n Respondent. \n ____________________ \n\n Petition for Review of an Order of \n the Board of Immigration Appeals. \n No. A076‐054‐163 \n ____________________ \n\n ARGUED FEBRUARY 20, 2018 — DECIDED JANUARY 29, 2019 \n ____________________ \n\n Before WOOD, Chief Judge, and EASTERBROOK and BARRETT, \nCircuit Judges. \n BARRETT, Circuit Judge. Aleksey Arkadyevich Ruderman is \nseeking to avoid removal to Belarus, his native country. An \nimmigration judge ruled that Ruderman was inadmissible \nunder the Immigration and Nationality Act, 8 U.S.C. \n§ 1182(a)(2)(B), and thus subject to removal. The judge also \n\f2 No. 17‐1689 \n\nheld that Ruderman was not eligible for a waiver of inadmis‐\nsibility and adjustment of status, cancellation of removal, asy‐\nlum, withholding of removal, or protection under the Con‐\nvention Against Torture. The Board of Immigration Appeals \nagreed. In particular, it held that Ruderman had not raised \nany meaningful challenge to his inadmissibility determina‐\ntion and that even if the immigration judge had applied the \nwrong legal standard to determine that Ruderman was ineli‐\ngible for a waiver of inadmissibility, her alternative discre‐\ntionary denial made the error harmless. \n Ruderman petitions us for review of those holdings, along \nwith others reached by the immigration judge and aﬃrmed \nby the Board. While we largely agree with the Board’s analy‐\nsis, we hold that it was flawed with respect to one issue: the \nquestion whether Ruderman is statutorily inadmissible. We \ntherefore grant Ruderman’s petition and remand for the \nBoard to revisit that question and, if necessary, to decide \nwhether Ruderman is eligible for a waiver. \n I. \n Ruderman moved to the United States when he was nine‐\nteen to escape discrimination and violence directed at him on \naccount of his Jewish heritage. He moved from his native land \nof Belarus, a former Soviet republic that declared independ‐\nence during his childhood. In Belarus, Ruderman and his fam‐\nily were targeted for abuse by Neo‐Nazis and pro‐Russia ad‐\nvocates who would shout profanities at them, perform the \nNazi salute, leave anti‐Jewish propaganda in their mailbox, \nand throw bottles and stones at their home. \n Ruderman received even worse treatment at school. His \n(sometimes much older) classmates would bully and beat him \n\fNo. 17‐1689 3 \n\nand the handful of other Jewish students. The head of the \nschool and the police were alerted but did nothing to address \nthe situation. One particularly severe attack resulted in \nstitches and a permanent scar, while another resulted in two \nbroken wrists that have bothered him ever since. \n After attackers broke Ruderman’s wrists, his parents sent \nhim to a private school where he would be safer. His time \nthere was cut short, however, by his father’s death. Arkady \nRuderman, a documentary filmmaker, died while filming a \npiece on government corruption in Tajikistan—another for‐\nmer Soviet republic. Although government oﬃcials reported \nthat he was killed in a car accident, Arkady had previously \nbeen detained and battered by the KGB, and eyewitnesses \nsaid that they saw bullet holes in his dead body. Those reports \ncould not be confirmed because the police ordered that \nArkady’s casket remain closed at his funeral—and then at‐\ntended the event to make sure that it did. \n Without Arkady’s income, Ruderman’s family could no \nlonger aﬀord his private school tuition, so Ruderman enrolled \nat a diﬀerent public school where he was subjected to familiar \nanti‐Semitic verbal abuse. He became so afraid that in the \nninth grade he stopped attending classes entirely and later \ntransferred to a technical school. There, in spite of continued \nverbal abuse, he performed well and graduated with high \ngrades. Once out of school, however, he found that his Jewish \nheritage made it diﬃcult for him to get a job. \n Fed up with the abuse and intolerance, Ruderman fled to \nthe United States in 2001 under a provision known as the \nLautenberg Amendment, which lowers barriers to immigra‐\ntion for certain former soviet nationals. See Pub. L. No. 101‐\n167, tit. V, §§ 599D–E, 103 Stat. 1195, 1261–64 (1989) (codified \n\f4 No. 17‐1689 \n\nas amended at 8 U.S.C. § 1157 note, § 1255 note). His life in \nAmerica got oﬀ to a rocky start; shortly after arriving he was \nconvicted of driving under the influence of alcohol and sen‐\ntenced to court supervision. But over the next several years, \nhe found work as a cab driver and a security oﬃcer, met his \nfuture wife Elena, and moved into an apartment with her and \nher two children in Milwaukee. \n In 2008, Ruderman struck and killed a pedestrian with his \nvehicle while driving drunk. He accepted responsibility, \npleaded guilty to homicide by negligent operation of a vehi‐\ncle, and was convicted and sentenced to five years in prison. \nFollowing his release in 2013, he worked at a transportation \ncompany—until U.S. Customs and Immigration Services de‐\nnied his adjustment‐of‐status application, causing his work \npermit to expire. \n In January of 2016, the government detained Ruderman \nand began removal proceedings. The immigration judge ulti‐\nmately concluded that Ruderman was statutorily inadmissi‐\nble because of his two convictions. The judge also denied \nRuderman’s applications for a waiver of inadmissibility, ad‐\njustment of status under the Lautenberg Amendment, cancel‐\nlation of removal, asylum, withholding of removal, and pro‐\ntection under the Convention Against Torture. \n Ruderman appealed the immigration judge’s decision in \nan extensive pro se brief and later in a second brief filed by \npro bono counsel. The counseled brief supplemented certain \narguments that Ruderman had made in his initial brief but \nconceded others. Significantly, the later brief conceded that \n“[Ruderman’s] convictions for two crimes with an aggregate \nprison sentence of five years make him ‘inadmissible.’” That \nconcession contradicted Ruderman’s pro se argument that the \n\fNo. 17‐1689 5 \n\ninadmissibility statute applies only when two or more convic‐\ntions each result in a sentence to confinement, and so Ruder‐\nman’s sole sentence to confinement—which imposed five \nyears in prison—did not make him inadmissible. \n The Board dismissed Ruderman’s appeal. First, it noted in \npassing that Ruderman “ha[d] not raised any meaningful \nchallenges” to his inadmissibility, and thus the issue was \n“waived.” Second, the Board adopted and aﬃrmed the immi‐\ngration judge’s denial of Ruderman’s applications for cancel‐\nlation of removal, withholding of removal, and protection un‐\nder the Convention Against Torture. Finally, the Board af‐\nfirmed the denial of Ruderman’s request for a waiver of inad‐\nmissibility and adjustment of status under the Lautenberg \nAmendment. The Board bypassed Ruderman’s argument that \nthe immigration judge had applied the wrong standard to de‐\ntermine whether Ruderman was eligible for a waiver of inad‐\nmissibility and instead aﬃrmed the judge’s conclusion that, \neven if Ruderman were eligible to be considered for a waiver, \nshe would exercise her discretion to deny him relief. \n II. \n Ruderman petitions us for review of the Board’s decision. \nHe takes issue with the Board’s conclusion that he waived his \nopportunity to challenge his inadmissibility, and he argues \nthat the application of the wrong standard for determining his \neligibility for a waiver of inadmissibility contaminated the im‐\nmigration judge’s discretionary denial of a waiver. He also \nclaims that the judge erred by holding—and the Board erred \nby aﬃrming—both that his negligent homicide was “particu‐\nlarly serious” and that he failed to show a “substantial risk” \nthat he would be tortured in Belarus. \n\f6 No. 17‐1689 \n\n Because the Board provided its own analysis and also af‐\nfirmed the immigration judge’s decision, we review both de‐\ncisions. Sobaleva v. Holder, 760 F.3d 592, 596 (7th Cir. 2014). \n A. \n Ruderman argued in his pro se brief that he is not inad‐\nmissible under § 212(a)(2)(B) of the Immigration and Nation‐\nality Act, 8 U.S.C. § 1182(a)(2)(B), because he has only ever re‐\nceived one sentence to confinement. The Act states that an im‐\nmigrant is inadmissible to receive a visa or to be admitted to \nthe United States if he is convicted of “2 or more of‐\nfenses … for which the aggregate sentences to confinement \nwere 5 years or more.” Id. Ruderman interprets “sentences to \nconfinement” to require more than one custodial sentence. He \nsupports this reading by pointing to the word “aggregate,” \nwhich he argues would be superfluous if the statute could be \nsatisfied by a single sentence to confinement. Id. Because his \nfirst conviction—for driving under the influence—did not re‐\nsult in confinement, he concludes that he is not inadmissible. \nHis pro bono counsel, however, conceded Ruderman’s inad‐\nmissibility in a later‐filed brief. \n The Board did not address Ruderman’s inadmissibility ar‐\ngument, instead concluding that he had failed to raise any \nmeaningful challenges to his inadmissibility and so had \nwaived the issue. It appears likely that the Board reached that \nconclusion on the basis of Ruderman’s counsel’s concession, \nbecause Ruderman did raise the argument in several places—\nincluding his notice of appeal and pro se brief, both of which \nremained on the record. But the Board’s opinion did not oth‐\nerwise indicate whether the counseled brief superseded the \npro se brief. \n\fNo. 17‐1689 7 \n\n A later‐in‐time concession waives an issue in federal \ncourt—but we do not know whether that is true before the \nBoard as well. On this record it is unclear why the Board con‐\ncluded that Ruderman waived his challenge, and the Board’s \nfailure to explain inhibits our review of the issue. See SEC v. \nChenery Corp., 332 U.S. 194, 196 (1947) (“[A] reviewing court, \nin dealing with a determination or judgment which an admin‐\nistrative agency alone is authorized to make, must judge the \npropriety of such action solely by the grounds invoked by the \nagency. If those grounds are inadequate or improper, the \ncourt is powerless to aﬃrm the administrative action by sub‐\nstituting what it considers to be a more adequate or proper \nbasis.”). We grant Ruderman’s petition and remand this issue \nto the Board to clarify why it did not address Ruderman’s in‐\nadmissibility argument. \n B. \n If on remand the Board confirms that Ruderman is inad‐\nmissible, his application for a waiver of inadmissibility should \nbe reviewed under the correct legal standard. The immigra‐\ntion judge concluded that Ruderman was statutorily ineligi‐\nble for a waiver because he did not show that his removal \nwould cause “extreme hardship” to his U.S.‐citizen wife. 8 \nU.S.C. § 1182(h)(1)(B). When a waiver is sought in conjunction \nwith an application for a status adjustment under the Lauten‐\nberg Amendment, however, there is no threshold eligibility \nrequirement; a waiver may be granted simply “for humani‐\ntarian purposes, to assure family unity, or when it is other‐\nwise in the public interest.” 8 U.S.C. 1255 note; see also 8 C.F.R. \n§ 1245.7(d). The immigration judge erred by not considering \nRuderman’s application under this less stringent standard. \n\f8 No. 17‐1689 \n\n The Board concluded that this error was harmless because \nthe immigration judge held in the alternative that she would \nexercise her discretion to deny Ruderman relief if he were el‐\nigible to be considered for it. The assumption seems to be that \nthe judge would have made the same discretionary denial of \na waiver under the Lautenberg Amendment as she made un‐\nder § 1182(h). But, as we have already noted, the former pro‐\nvides discretion to grant a waiver for humanitarian purposes, \nto assure family unity, or when it is otherwise in the public \ninterest; the latter entails a potentially more complex consid‐\neration of the ground for exclusion at issue, past immigration \nviolations or criminal history, evidence of rehabilitation, gen‐\neral evidence of good or bad character, strength of family ties, \nduration of residence in the United States, and evidence of \nvalue to the community. See In re Mendez‐Moralez, 21 I. & N. \nDec. 296, 301 (BIA 1996). Because these statutes, along with \nthe cases and regulations interpreting them, articulate distinct \nfactors to be considered in deciding whether to grant a discre‐\ntionary waiver of inadmissibility, the Board cannot simply \nsubstitute one standard for another and assume that the out‐\ncome would be the same. If the Board confirms Ruderman’s \ninadmissibility on remand, it should consider his application \nfor a waiver under the proper framework. \n C. \n Ruderman’s other arguments go nowhere. First, he claims \nthat he is eligible for asylum and withholding of removal be‐\ncause he did not commit a “particularly serious crime.” 8 \nU.S.C. §§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii). Ruderman com‐\nmitted homicide by negligent operation of a vehicle, Wis. Stat. \n§ 940.10(1); he argues that Congress did not intend for crimi‐\n\fNo. 17‐1689 9 \n\nnal negligence like his to qualify as particularly serious. Gen‐\nerally, classification of a crime as “particularly serious” is \nwithin the discretion of the Attorney General—exercised here \nby the Board. Petrov v. Gonzales, 464 F.3d 800, 802 (7th Cir. \n2006). Our review of these classifications is confined to consti‐\ntutional and legal questions. 8 U.S.C. § 1252(a)(2); see also Es‐\ntrada‐Martinez v. Lynch, 809 F.3d 886, 892 (7th Cir. 2015). And \nwhen those legal questions implicate ambiguous statutory \nprovisions, we give deference. See Chevron U.S.A., Inc. v. Nat. \nRes. Def. Council, Inc., 467 U.S. 837, 842–44 (1984). \n We considered the meaning of “particularly serious \ncrime” in some depth in Ali v. Achim, 468 F.3d 462 (7th Cir. \n2006). In that case, the petitioner argued that the Board could \nnot hold that his conviction for “substantial battery with a \ndangerous weapon,” a nonaggravated felony, was a particu‐\nlarly serious crime under § 1158(b)(2) and § 1231(b)(3) be‐\ncause it did not fall within the two categories of crimes iden‐\ntified as per se “particularly serious” in § 1158(b)(2): aggra‐\nvated felonies and other crimes that the Attorney General des‐\nignates by regulation. Id. at 468–69. We disagreed, explaining \nthat the presence of these categories does not cabin the \nBoard’s discretion to determine that nonaggravated felonies \nare particularly serious on a case‐by‐case basis. Id. at 469. In \nthe same way, the Board is not precluded from determining \nthat some crimes of negligence are particularly serious. \n Nor does the Immigration and Nationality Act’s separate \ndefinition of “serious criminal offense” undermine the \nBoard’s interpretation. The Act identifies “driving while in‐\ntoxicated or under the influence of alcohol” as a serious crim‐\ninal offense if it “involves personal injury to another.” 8 U.S.C. \n§ 1101(h)(3). Ruderman argues that “particularly serious \n\f10 No. 17‐1689 \n\ncrime” must be interpreted to require more. Maybe so. But \neven if he’s right, criminally negligent homicide entails more \nthan mere “personal injury,” so the argument is a dead end. \n Finally, even if § 1158(b)(2)(A)(ii) and § 1231(b)(3)(B)(ii) \nwere ambiguous as to whether crimes of negligence could be \n“particularly serious,” Ruderman has not shown that the \nBoard’s interpretation is too unreasonable to merit deference \nunder Chevron. See Ali, 468 F.3d at 470. Nor has he shown that \nthe Board’s interpretation is so likely to conflict with the Con‐\nstitution or international law that we need to consider \nwhether some other interpretation is warranted. \n D. \n Finally, Ruderman contends that the Board should have \ngranted him protection under the Convention Against Tor‐\nture, 8 C.F.R. §§ 1208.16–18. The Convention forbids the re‐\nturn of “a person to another State where there are substantial \ngrounds for believing that he would be in danger of being \nsubjected to torture.” Convention Against Torture and Other \nCruel, Inhuman or Degrading Treatment or Punishment art. \n3(1), Dec. 10, 1984, S. Treaty Doc. No. 100‐20 (1990), 1465 \nU.N.T.S. 85. Federal regulations define torture as requiring \n“the consent or acquiescence of a public oﬃcial.” 8 C.F.R \n§ 1208.18(a)(1). Immigration judges must withhold or defer \nremoval if an applicant demonstrates that “it is more likely \nthan not that he or she would be tortured if removed.” 8 \nC.F.R. § 1208.16(c)(2). We have explained that “more likely \nthan not” means that there is a “substantial risk” that the alien \nwill be tortured. Rodriguez‐Molinero v. Lynch, 808 F.3d 1134, \n1135–36 (7th Cir. 2015); see also Perez‐Montes v. Sessions, 880 \nF.3d 849, 850 (7th Cir. 2018). \n\fNo. 17‐1689 11 \n\n Ruderman argues that the immigration judge both misun‐\nderstood and misapplied the “substantial risk” standard. But \nthere is no evidence of the former; the immigration judge \ncited our decision in Rodriguez‐Molinero and proceeded to an‐\nalyze whether there was a substantial risk that Ruderman \nwould be subject to torture inflicted by or with the consent of \na public oﬃcial if he returned to Belarus. See 8 C.F.R. \n§ 1208.18(a)(1)–(2). And Ruderman fails to establish the latter. \nWe review the Board’s conclusion that there was no substan‐\ntial risk of torture under the “highly deferential substantial \nevidence test,” which mandates denying the petition unless \n“the record evidence compels a contrary conclusion.” Lopez v. \nLynch, 810 F.3d 484, 492 (7th Cir. 2016) (citation omitted). \n The record evidence does not compel a contrary conclu‐\nsion. To be sure, certain findings from the immigration judge \ngive us pause. For one, the judge concluded that there was no \nsubstantial risk of torture for Jews in Belarus because, despite \n“widespread anti‐Semitism in Belarus,” incidents targeting \nJews have been declining. While it is true that the raw number \nof anti‐Jewish incidents in Belarus has declined, so has the \nJewish population. In this context, an absolute decrease in in‐\ncidents does not necessary equate to a relative increase in \nsafety for any individual. Nor does the evidence of Ruder‐\nman’s mother’s safe travel to and from Belarus mean that \nRuderman will be equally safe. His mother has a Christian \nname that is not associated with her late husband, whereas \nRuderman’s patronymic clearly signals that he is both Jewish \nand the son of a known political activist whom the KGB may \nhave tortured and killed. But on the other hand, there is evi‐\ndence that Ruderman became less susceptible to physical at‐\ntacks as he grew and became better able to defend himself, \nthat no one in his family has been threatened in Belarus, and \n\f12 No. 17‐1689 \n\nthat he lived in Belarus for eight years following his father’s \ndeath without any threat of torture on account of his relation‐\nship to his father. Considering all the evidence, the record \ndoes not compel the conclusion that there is a substantial risk \nthat Ruderman would be tortured if he returned to Belarus. \n * * * \n Ruderman’s petition for review is GRANTED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4362778/", "author_raw": "BARRETT, Circuit Judge"}]}	WOOD	EASTERBROOK	BARRETT	1		{"WOOD": ", Chief", "EASTERBROOK": ", Circuit", "BARRETT": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4585525/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Aleksey Ruderman v. Matthew G. Whitaker\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-29\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________ \nNo. 17‐1689 \nALEKSEY ARKADYEVICH RUDERMAN, \n Petitioner, \n v. \n\nMATTHEW G. WHITAKER, \nActing Attorney General of the United States, \n Respondent. \n ____________________ \n\n Petition for Review of an Order of \n the Board of Immigration Appeals. \n No. A076‐054‐163 \n ____________________ \n\n ARGUED FEBRUARY 20, 2018 — DECIDED JANUARY 29, 2019 \n ____________________ \n\n Before WOOD, Chief Judge, and EASTERBROOK and BARRETT, \nCircuit Judges. \n BARRETT, Circuit Judge. Aleksey Arkadyevich Ruderman is \nseeking to avoid removal to Belarus, his native country. An \nimmigration judge ruled that Ruderman was inadmissible \nunder the Immigration and Nationality Act, 8 U.S.C. \n§ 1182(a)(2)(B), and thus subject to removal. The judge also \n\f2 No. 17‐1689 \n\nheld that Ruderman was not eligible for a waiver of inadmis‐\nsibility and adjustment of status, cancellation of removal, asy‐\nlum, withholding of removal, or protection under the Con‐\nvention Against Torture. The Board of Immigration Appeals \nagreed. In particular, it held that Ruderman had not raised \nany meaningful challenge to his inadmissibility determina‐\ntion and that even if the immigration judge had applied the \nwrong legal standard to determine that Ruderman was ineli‐\ngible for a waiver of inadmissibility, her alternative discre‐\ntionary denial made the error harmless. \n Ruderman petitions us for review of those holdings, along \nwith others reached by the immigration judge and aﬃrmed \nby the Board. While we largely agree with the Board’s analy‐\nsis, we hold that it was flawed with respect to one issue: the \nquestion whether Ruderman is statutorily inadmissible. We \ntherefore grant Ruderman’s petition and remand for the \nBoard to revisit that question and, if necessary, to decide \nwhether Ruderman is eligible for a waiver. \n I. \n Ruderman moved to the United States when he was nine‐\nteen to escape discrimination and violence directed at him on \naccount of his Jewish heritage. He moved from his native land \nof Belarus, a former Soviet republic that declared independ‐\nence during his childhood. In Belarus, Ruderman and his fam‐\nily were targeted for abuse by Neo‐Nazis and pro‐Russia ad‐\nvocates who would shout profanities at them, perform the \nNazi salute, leave anti‐Jewish propaganda in their mailbox, \nand throw bottles and stones at their home. \n Ruderman received even worse treatment at school. His \n(sometimes much older) classmates would bully and beat him \n\fNo. 17‐1689 3 \n\nand the handful of other Jewish students. The head of the \nschool and the police were alerted but did nothing to address \nthe situation. One particularly severe attack resulted in \nstitches and a permanent scar, while another resulted in two \nbroken wrists that have bothered him ever since. \n After attackers broke Ruderman’s wrists, his parents sent \nhim to a private school where he would be safer. His time \nthere was cut short, however, by his father’s death. Arkady \nRuderman, a documentary filmmaker, died while filming a \npiece on government corruption in Tajikistan—another for‐\nmer Soviet republic. Although government oﬃcials reported \nthat he was killed in a car accident, Arkady had previously \nbeen detained and battered by the KGB, and eyewitnesses \nsaid that they saw bullet holes in his dead body. Those reports \ncould not be confirmed because the police ordered that \nArkady’s casket remain closed at his funeral—and then at‐\ntended the event to make sure that it did. \n Without Arkady’s income, Ruderman’s family could no \nlonger aﬀord his private school tuition, so Ruderman enrolled \nat a diﬀerent public school where he was subjected to familiar \nanti‐Semitic verbal abuse. He became so afraid that in the \nninth grade he stopped attending classes entirely and later \ntransferred to a technical school. There, in spite of continued \nverbal abuse, he performed well and graduated with high \ngrades. Once out of school, however, he found that his Jewish \nheritage made it diﬃcult for him to get a job. \n Fed up with the abuse and intolerance, Ruderman fled to \nthe United States in 2001 under a provision known as the \nLautenberg Amendment, which lowers barriers to immigra‐\ntion for certain former soviet nationals. See Pub. L. No. 101‐\n167, tit. V, §§ 599D–E, 103 Stat. 1195, 1261–64 (1989) (codified \n\f4 No. 17‐1689 \n\nas amended at 8 U.S.C. § 1157 note, § 1255 note). His life in \nAmerica got oﬀ to a rocky start; shortly after arriving he was \nconvicted of driving under the influence of alcohol and sen‐\ntenced to court supervision. But over the next several years, \nhe found work as a cab driver and a security oﬃcer, met his \nfuture wife Elena, and moved into an apartment with her and \nher two children in Milwaukee. \n In 2008, Ruderman struck and killed a pedestrian with his \nvehicle while driving drunk. He accepted responsibility, \npleaded guilty to homicide by negligent operation of a vehi‐\ncle, and was convicted and sentenced to five years in prison. \nFollowing his release in 2013, he worked at a transportation \ncompany—until U.S. Customs and Immigration Services de‐\nnied his adjustment‐of‐status application, causing his work \npermit to expire. \n In January of 2016, the government detained Ruderman \nand began removal proceedings. The immigration judge ulti‐\nmately concluded that Ruderman was statutorily inadmissi‐\nble because of his two convictions. The judge also denied \nRuderman’s applications for a waiver of inadmissibility, ad‐\njustment of status under the Lautenberg Amendment, cancel‐\nlation of removal, asylum, withholding of removal, and pro‐\ntection under the Convention Against Torture. \n Ruderman appealed the immigration judge’s decision in \nan extensive pro se brief and later in a second brief filed by \npro bono counsel. The counseled brief supplemented certain \narguments that Ruderman had made in his initial brief but \nconceded others. Significantly, the later brief conceded that \n“[Ruderman’s] convictions for two crimes with an aggregate \nprison sentence of five years make him ‘inadmissible.’” That \nconcession contradicted Ruderman’s pro se argument that the \n\fNo. 17‐1689 5 \n\ninadmissibility statute applies only when two or more convic‐\ntions each result in a sentence to confinement, and so Ruder‐\nman’s sole sentence to confinement—which imposed five \nyears in prison—did not make him inadmissible. \n The Board dismissed Ruderman’s appeal. First, it noted in \npassing that Ruderman “ha[d] not raised any meaningful \nchallenges” to his inadmissibility, and thus the issue was \n“waived.” Second, the Board adopted and aﬃrmed the immi‐\ngration judge’s denial of Ruderman’s applications for cancel‐\nlation of removal, withholding of removal, and protection un‐\nder the Convention Against Torture. Finally, the Board af‐\nfirmed the denial of Ruderman’s request for a waiver of inad‐\nmissibility and adjustment of status under the Lautenberg \nAmendment. The Board bypassed Ruderman’s argument that \nthe immigration judge had applied the wrong standard to de‐\ntermine whether Ruderman was eligible for a waiver of inad‐\nmissibility and instead aﬃrmed the judge’s conclusion that, \neven if Ruderman were eligible to be considered for a waiver, \nshe would exercise her discretion to deny him relief. \n II. \n Ruderman petitions us for review of the Board’s decision. \nHe takes issue with the Board’s conclusion that he waived his \nopportunity to challenge his inadmissibility, and he argues \nthat the application of the wrong standard for determining his \neligibility for a waiver of inadmissibility contaminated the im‐\nmigration judge’s discretionary denial of a waiver. He also \nclaims that the judge erred by holding—and the Board erred \nby aﬃrming—both that his negligent homicide was “particu‐\nlarly serious” and that he failed to show a “substantial risk” \nthat he would be tortured in Belarus. \n\f6 No. 17‐1689 \n\n Because the Board provided its own analysis and also af‐\nfirmed the immigration judge’s decision, we review both de‐\ncisions. Sobaleva v. Holder, 760 F.3d 592, 596 (7th Cir. 2014). \n A. \n Ruderman argued in his pro se brief that he is not inad‐\nmissible under § 212(a)(2)(B) of the Immigration and Nation‐\nality Act, 8 U.S.C. § 1182(a)(2)(B), because he has only ever re‐\nceived one sentence to confinement. The Act states that an im‐\nmigrant is inadmissible to receive a visa or to be admitted to \nthe United States if he is convicted of “2 or more of‐\nfenses … for which the aggregate sentences to confinement \nwere 5 years or more.” Id. Ruderman interprets “sentences to \nconfinement” to require more than one custodial sentence. He \nsupports this reading by pointing to the word “aggregate,” \nwhich he argues would be superfluous if the statute could be \nsatisfied by a single sentence to confinement. Id. Because his \nfirst conviction—for driving under the influence—did not re‐\nsult in confinement, he concludes that he is not inadmissible. \nHis pro bono counsel, however, conceded Ruderman’s inad‐\nmissibility in a later‐filed brief. \n The Board did not address Ruderman’s inadmissibility ar‐\ngument, instead concluding that he had failed to raise any \nmeaningful challenges to his inadmissibility and so had \nwaived the issue. It appears likely that the Board reached that \nconclusion on the basis of Ruderman’s counsel’s concession, \nbecause Ruderman did raise the argument in several places—\nincluding his notice of appeal and pro se brief, both of which \nremained on the record. But the Board’s opinion did not oth‐\nerwise indicate whether the counseled brief superseded the \npro se brief. \n\fNo. 17‐1689 7 \n\n A later‐in‐time concession waives an issue in federal \ncourt—but we do not know whether that is true before the \nBoard as well. On this record it is unclear why the Board con‐\ncluded that Ruderman waived his challenge, and the Board’s \nfailure to explain inhibits our review of the issue. See SEC v. \nChenery Corp., 332 U.S. 194, 196 (1947) (“[A] reviewing court, \nin dealing with a determination or judgment which an admin‐\nistrative agency alone is authorized to make, must judge the \npropriety of such action solely by the grounds invoked by the \nagency. If those grounds are inadequate or improper, the \ncourt is powerless to aﬃrm the administrative action by sub‐\nstituting what it considers to be a more adequate or proper \nbasis.”). We grant Ruderman’s petition and remand this issue \nto the Board to clarify why it did not address Ruderman’s in‐\nadmissibility argument. \n B. \n If on remand the Board confirms that Ruderman is inad‐\nmissible, his application for a waiver of inadmissibility should \nbe reviewed under the correct legal standard. The immigra‐\ntion judge concluded that Ruderman was statutorily ineligi‐\nble for a waiver because he did not show that his removal \nwould cause “extreme hardship” to his U.S.‐citizen wife. 8 \nU.S.C. § 1182(h)(1)(B). When a waiver is sought in conjunction \nwith an application for a status adjustment under the Lauten‐\nberg Amendment, however, there is no threshold eligibility \nrequirement; a waiver may be granted simply “for humani‐\ntarian purposes, to assure family unity, or when it is other‐\nwise in the public interest.” 8 U.S.C. 1255 note; see also 8 C.F.R. \n§ 1245.7(d). The immigration judge erred by not considering \nRuderman’s application under this less stringent standard. \n\f8 No. 17‐1689 \n\n The Board concluded that this error was harmless because \nthe immigration judge held in the alternative that she would \nexercise her discretion to deny Ruderman relief if he were el‐\nigible to be considered for it. The assumption seems to be that \nthe judge would have made the same discretionary denial of \na waiver under the Lautenberg Amendment as she made un‐\nder § 1182(h). But, as we have already noted, the former pro‐\nvides discretion to grant a waiver for humanitarian purposes, \nto assure family unity, or when it is otherwise in the public \ninterest; the latter entails a potentially more complex consid‐\neration of the ground for exclusion at issue, past immigration \nviolations or criminal history, evidence of rehabilitation, gen‐\neral evidence of good or bad character, strength of family ties, \nduration of residence in the United States, and evidence of \nvalue to the community. See In re Mendez‐Moralez, 21 I. & N. \nDec. 296, 301 (BIA 1996). Because these statutes, along with \nthe cases and regulations interpreting them, articulate distinct \nfactors to be considered in deciding whether to grant a discre‐\ntionary waiver of inadmissibility, the Board cannot simply \nsubstitute one standard for another and assume that the out‐\ncome would be the same. If the Board confirms Ruderman’s \ninadmissibility on remand, it should consider his application \nfor a waiver under the proper framework. \n C. \n Ruderman’s other arguments go nowhere. First, he claims \nthat he is eligible for asylum and withholding of removal be‐\ncause he did not commit a “particularly serious crime.” 8 \nU.S.C. §§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii). Ruderman com‐\nmitted homicide by negligent operation of a vehicle, Wis. Stat. \n§ 940.10(1); he argues that Congress did not intend for crimi‐\n\fNo. 17‐1689 9 \n\nnal negligence like his to qualify as particularly serious. Gen‐\nerally, classification of a crime as “particularly serious” is \nwithin the discretion of the Attorney General—exercised here \nby the Board. Petrov v. Gonzales, 464 F.3d 800, 802 (7th Cir. \n2006). Our review of these classifications is confined to consti‐\ntutional and legal questions. 8 U.S.C. § 1252(a)(2); see also Es‐\ntrada‐Martinez v. Lynch, 809 F.3d 886, 892 (7th Cir. 2015). And \nwhen those legal questions implicate ambiguous statutory \nprovisions, we give deference. See Chevron U.S.A., Inc. v. Nat. \nRes. Def. Council, Inc., 467 U.S. 837, 842–44 (1984). \n We considered the meaning of “particularly serious \ncrime” in some depth in Ali v. Achim, 468 F.3d 462 (7th Cir. \n2006). In that case, the petitioner argued that the Board could \nnot hold that his conviction for “substantial battery with a \ndangerous weapon,” a nonaggravated felony, was a particu‐\nlarly serious crime under § 1158(b)(2) and § 1231(b)(3) be‐\ncause it did not fall within the two categories of crimes iden‐\ntified as per se “particularly serious” in § 1158(b)(2): aggra‐\nvated felonies and other crimes that the Attorney General des‐\nignates by regulation. Id. at 468–69. We disagreed, explaining \nthat the presence of these categories does not cabin the \nBoard’s discretion to determine that nonaggravated felonies \nare particularly serious on a case‐by‐case basis. Id. at 469. In \nthe same way, the Board is not precluded from determining \nthat some crimes of negligence are particularly serious. \n Nor does the Immigration and Nationality Act’s separate \ndefinition of “serious criminal offense” undermine the \nBoard’s interpretation. The Act identifies “driving while in‐\ntoxicated or under the influence of alcohol” as a serious crim‐\ninal offense if it “involves personal injury to another.” 8 U.S.C. \n§ 1101(h)(3). Ruderman argues that “particularly serious \n\f10 No. 17‐1689 \n\ncrime” must be interpreted to require more. Maybe so. But \neven if he’s right, criminally negligent homicide entails more \nthan mere “personal injury,” so the argument is a dead end. \n Finally, even if § 1158(b)(2)(A)(ii) and § 1231(b)(3)(B)(ii) \nwere ambiguous as to whether crimes of negligence could be \n“particularly serious,” Ruderman has not shown that the \nBoard’s interpretation is too unreasonable to merit deference \nunder Chevron. See Ali, 468 F.3d at 470. Nor has he shown that \nthe Board’s interpretation is so likely to conflict with the Con‐\nstitution or international law that we need to consider \nwhether some other interpretation is warranted. \n D. \n Finally, Ruderman contends that the Board should have \ngranted him protection under the Convention Against Tor‐\nture, 8 C.F.R. §§ 1208.16–18. The Convention forbids the re‐\nturn of “a person to another State where there are substantial \ngrounds for believing that he would be in danger of being \nsubjected to torture.” Convention Against Torture and Other \nCruel, Inhuman or Degrading Treatment or Punishment art. \n3(1), Dec. 10, 1984, S. Treaty Doc. No. 100‐20 (1990), 1465 \nU.N.T.S. 85. Federal regulations define torture as requiring \n“the consent or acquiescence of a public oﬃcial.” 8 C.F.R \n§ 1208.18(a)(1). Immigration judges must withhold or defer \nremoval if an applicant demonstrates that “it is more likely \nthan not that he or she would be tortured if removed.” 8 \nC.F.R. § 1208.16(c)(2). We have explained that “more likely \nthan not” means that there is a “substantial risk” that the alien \nwill be tortured. Rodriguez‐Molinero v. Lynch, 808 F.3d 1134, \n1135–36 (7th Cir. 2015); see also Perez‐Montes v. Sessions, 880 \nF.3d 849, 850 (7th Cir. 2018). \n\fNo. 17‐1689 11 \n\n Ruderman argues that the immigration judge both misun‐\nderstood and misapplied the “substantial risk” standard. But \nthere is no evidence of the former; the immigration judge \ncited our decision in Rodriguez‐Molinero and proceeded to an‐\nalyze whether there was a substantial risk that Ruderman \nwould be subject to torture inflicted by or with the consent of \na public oﬃcial if he returned to Belarus. See 8 C.F.R. \n§ 1208.18(a)(1)–(2). And Ruderman fails to establish the latter. \nWe review the Board’s conclusion that there was no substan‐\ntial risk of torture under the “highly deferential substantial \nevidence test,” which mandates denying the petition unless \n“the record evidence compels a contrary conclusion.” Lopez v. \nLynch, 810 F.3d 484, 492 (7th Cir. 2016) (citation omitted). \n The record evidence does not compel a contrary conclu‐\nsion. To be sure, certain findings from the immigration judge \ngive us pause. For one, the judge concluded that there was no \nsubstantial risk of torture for Jews in Belarus because, despite \n“widespread anti‐Semitism in Belarus,” incidents targeting \nJews have been declining. While it is true that the raw number \nof anti‐Jewish incidents in Belarus has declined, so has the \nJewish population. In this context, an absolute decrease in in‐\ncidents does not necessary equate to a relative increase in \nsafety for any individual. Nor does the evidence of Ruder‐\nman’s mother’s safe travel to and from Belarus mean that \nRuderman will be equally safe. His mother has a Christian \nname that is not associated with her late husband, whereas \nRuderman’s patronymic clearly signals that he is both Jewish \nand the son of a known political activist whom the KGB may \nhave tortured and killed. But on the other hand, there is evi‐\ndence that Ruderman became less susceptible to physical at‐\ntacks as he grew and became better able to defend himself, \nthat no one in his family has been threatened in Belarus, and \n\f12 No. 17‐1689 \n\nthat he lived in Belarus for eight years following his father’s \ndeath without any threat of torture on account of his relation‐\nship to his father. Considering all the evidence, the record \ndoes not compel the conclusion that there is a substantial risk \nthat Ruderman would be tortured if he returned to Belarus. \n * * * \n Ruderman’s petition for review is GRANTED.\n[END_CASE]", "role": "user" } ]
4,585,546	Bruce GILES, Plaintiff-Appellant, v. Salvador A. GODINEZ, Acting Director, Et Al., Defendants-Appellees.	Bruce Giles v. Salvador Godinez	2019-01-29	15-3077	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Flaum, Manion, Eve", "parties": "", "opinions": [{"author": "Daniel Anthony Manion", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 15-3077\nBRUCE GILES,\n Plaintiff-Appellant,\n v.\n\nSALVADOR A. GODINEZ, Acting Director, et al.,\n Defendants-Appellees.\n ____________________\n\n Appeal from the United States District Court for the\n Southern District of Illinois.\n No. 3:12-cv-00965 — J. Phil Gilbert, Judge.\n ____________________\n\n ARGUED NOVEMBER 8, 2018 — DECIDED JANUARY 29, 2019\n ____________________\n\n Before FLAUM, MANION, and ST. EVE, Circuit Judges.\n MANION, Circuit Judge. Bruce Giles is a prisoner in the cus-\ntody of the Illinois Department of Corrections (the “Depart-\nment”) who suﬀers from schizoaﬀective disorder. Giles filed\nthis action pro se under 42 U.S.C. § 1983 against several De-\npartment oﬃcials. He alleges the defendants violated his\nrights under the Eighth Amendment by being deliberately in-\ndiﬀerent to his serious medical needs, subjecting him to un-\nconstitutional conditions of confinement, and failing to\n\f2 No. 15-3077\n\nprotect him from other inmates. The district court granted\nsummary judgment to the defendants and Giles now appeals.\nThe district court’s conclusion was based largely on its hold-\ning that Giles could not establish the subjective elements of\nhis claims because the defendants, who are all non-medical\noﬃcials, appropriately relied on the judgment of medical pro-\nfessionals. Because we agree Giles cannot establish the de-\nfendants possessed a suﬃciently culpable state of mind, we\naﬃrm.\n I. Background\n A. Factual Background\n At all times relevant to this appeal, Giles was in the cus-\ntody of the Department and housed in five diﬀerent correc-\ntional facilities: Dixon Correctional Center (“Dixon”), Illinois\nRiver Correctional Center (“Illinois River”), Stateville Correc-\ntional Center (“Stateville”), Pontiac Correctional Center\n(“Pontiac”), and Lawrence Correctional Center (“Lawrence”).\nHe suﬀers from schizoaﬀective disorder. His symptoms in-\nclude anxiety, depression, auditory hallucinations, and sui-\ncidal ideation. He attempted suicide at least three times while\nin the Department’s custody. He has at various times been\nprescribed psychotropic medications that help him cope with\nthese symptoms but do not eliminate them entirely.\n Giles’s claims arise out of the medical treatment he re-\nceived and the conditions of his confinement at multiple cor-\nrectional facilities over a two-year period. Most of his com-\nplaints relate specifically to his placement in segregation.1 The\n\n 1 Although Giles’s placement in segregation is at the core of his com-\nplaint, the exact duration of his periods in segregation and the nature of\nsegregation placement at each facility are not clear from the record or\n\fNo. 15-3077 3\n\nfollowing timeline of events is compiled from Giles’s allega-\ntions, his medical records, and his deposition testimony.\n From late June 2010 until September 2010, Giles was\nhoused at Dixon, where he alleges he had daily access to men-\ntal health professionals and the opportunity to participate in\ntherapeutic programs.2 On September 22, 2010, Giles was\ntransferred from Dixon to Illinois River. According to the\nhealth status transfer summary prepared by an oﬃcial at\nDixon at the time of Giles’s transfer, Giles’s prescription for\npsychotropic medications (Prozac and Depakote) had been\ndiscontinued on July 23, 2010, about two months before he left\nDixon.\n Giles was examined by a nurse at Illinois River on October\n3, 2010, at which point he requested to see a psychologist be-\ncause he wanted to get back on his medications. The nurse\nnoted he was “upset that [he] cannot see psych today.” Three\ndays later, on October 6, Giles was transferred to Stateville\ndue to an unrelated legal proceeding. On October 9, while\nGiles was at Stateville, a psychiatrist again prescribed Prozac\nand Depakote, less than a week after he requested the return\nto medication.\n\n\n\n\nGiles’s allegations. As best as can be discerned, Giles was placed in segre-\ngation during two separate periods and at three different facilities: first, at\nIllinois River and Pontiac from March 2011 to approximately July 2011 (he\nwas transferred to Pontiac in April), and second, at Lawrence from Febru-\nary 2012 until approximately November 2012.\n 2 Giles acknowledged in his deposition that he did not avail himself\nof these programs, however, until he returned to Dixon after filing this\nsuit.\n\f4 No. 15-3077\n\n Giles was sent back to Illinois River on November 10, 2010.\nThis time, his transfer summary failed to include the fact that\nhe was receiving psychotropic medications, resulting in a\nlapse of medication. Giles was examined by a mental health\ncounselor on November 22 and then by a psychiatrist on No-\nvember 25. The psychiatrist again prescribed Prozac and De-\npakote and requested Giles’s medical records from Stateville.\nGiles was examined by a medical health counselor on Decem-\nber 8. On December 12, a psychiatrist reviewed Giles’s medi-\ncal records from Stateville and noticed Giles had received Pro-\nlixin while there and his symptoms had improved, so Giles\nwas placed back on Prolixin.\n Giles was examined by a mental health counselor on ten\ndiﬀerent occasions from December 2010 until April 2011. He\nwas also examined by a psychiatrist and attended group ther-\napy sessions multiple times in January until he stopped show-\ning up for the sessions in February.\n Giles complained to a mental health counselor in March\n2011 that he was not doing well and that he had not received\nhis Prolixin medication for two days. The counselor wrote in\nhis report that he addressed the medication issue with the\nprison pharmacy. Around this time, Giles had an altercation\nwith another inmate at Illinois River. According to Giles’s\ndeposition testimony, the incident occurred when he was\ntalking to himself and another inmate approached him, told\nhim to shut up, and spit in his face. Giles pushed the inmate\naway. He claims the reason he was talking to himself was be-\ncause he had not received his Prolixin medication, which\nhelps control the voices in his head.\n Because of the altercation, Giles was placed in segregation.\nAccording to Giles, while in segregation “you’re just thrown\n\fNo. 15-3077 5\n\nin a cell all day with other inmates that are violent, that don’t\ncare about you.” He claims he was subjected to violence from\nother inmates in segregation but that he never reported this\nto prison oﬃcials. He testified inmates in segregation were\ngiven yard time, but that he sometimes chose not to go be-\ncause he did not feel safe in the yard, claiming “that is where\nusually everybody fights.”\n After being placed in segregation in March 2011, Giles at-\ntempted suicide by cutting his wrists on his bed frame. His\ntestimony indicates his cousin had passed away around this\ntime and that his cellmate would not let him sleep at night.\nHe also testified his symptoms were “just getting so bad,” par-\nticularly the voices in his head, even though he acknowledges\nhe was receiving his medications at this time. The stress from\nthese combined factors led to his suicide attempt. Giles’s cell-\nmate notified the prison staﬀ and Giles was rescued. After\nthis, he was placed on suicide watch and was examined by\nmental health professionals.\n Giles was examined by a mental health counselor on\nApril 1 and April 8, 2011. The counselor noted there was “po-\ntential for exaggeration of symptoms” and that Giles was “co-\nherent” with “no overt distress.”\n Giles was again transferred from Illinois River on April 13,\n2011, this time to Pontiac. He remained in segregation at Pon-\ntiac. While at Pontiac, Giles alleges he received medication\nand one-on-one therapy, to “try to give [him] a little hope.”\nHe felt this treatment was insuﬃcient. He alleges he was not\ngiven his medications “about twice.” A psychiatrist discontin-\nued Giles’s existing prescriptions and prescribed new psycho-\ntropic medications on April 26. Three days later, Giles was\nagain examined by a psychiatrist who noted “there is nothing\n\f6 No. 15-3077\n\nto contraindicate continued segregation placement at this\ntime.”\n Giles received an extended interview with a psychiatrist\non May 24, 2011. During this session, Giles stated he was\n“fine, except that [he had] not been getting [his] Prolixin.” The\npsychiatrist noted Giles’s mood was good; he was awake,\nalert, and oriented; he displayed “[n]o acute distress/agita-\ntion”; his speech was “fluent and coherent”; and his\n“thoughts were organized.” Giles denied having any suicidal\nor homicidal thoughts. Besides claiming he had not been re-\nceiving Prolixin, “[h]e made no mention of any other serious\nconcerns.” Giles was still in segregation at this time.\n Giles was scheduled for another psychiatric appointment\non July 5, 2011, which he did not attend, opting to go to the\nprison yard instead. He was evaluated by a mental health pro-\nfessional on July 29, who again noted “there is nothing to con-\ntraindicate continued segregation placement at this time.” As\nbest as can be discerned from the record, Giles was removed\nfrom segregation sometime during July 2011.\n Giles was transferred to Lawrence in early September\n2011. He was examined by mental health professionals three\ntimes in September, four times in October, twice in Novem-\nber, twice in December, and three times in February 2012. Af-\nter one of the October examinations, the mental health profes-\nsional determined Giles was having issues with his cellmate\nand his cell assignment was exacerbating his symptoms. As a\nresult, Giles was assigned a new cell and cellmate the next\nday. Notes from his examination the following week indicate\n“notable improvement.”\n\fNo. 15-3077 7\n\n In February 2012, Giles was involved in another alterca-\ntion with an inmate, which formed the basis of his original\nfailure-to-protect claim. This altercation occurred when he ac-\ncidentally bumped into the other inmate in the mess hall\nwhile talking to himself. The other inmate assumed Giles was\ntalking to him and struck him in retaliation. Giles was ren-\ndered unconscious by the attack. Giles testified in his deposi-\ntion he had never had trouble with this inmate before and\nnever told the facility staﬀ he felt he was in danger, but that\n“it happened because of my symptoms. I was there, and [the\nother inmate] just happened to be aggressive.” During the in-\nvestigation of the altercation, when he was asked (apparently\nby prison oﬃcials) if he was “guilty,” Giles alleges he simply\nresponded he was. As a result, both Giles and the other inmate\nwere placed in segregation. Giles apparently stayed in segre-\ngation from February until November 2012.\n Giles was examined by mental health professionals nine\nmore times during the period spanning from March to July\n2012. During this time, he expressed his unhappiness at Law-\nrence, his unhappiness with being in segregation, and the\nanxiety he felt regarding the possibility of future altercations.\nGiles reported diﬃculties with cellmates and frequently re-\nquested reassignment. The mental health professionals noted\nGiles lacked focus during treatment sessions and often did\nnot complete assigned therapy homework.\n Throughout the two years at issue, Giles filed at least nine-\nteen grievances. His complaints related to insuﬃcient medical\ntreatment, delays or interruptions in receiving medication,\nunconstitutional conditions of confinement, lack of adequate\nsuicide prevention, vermin infestations, his unhappiness in\nsegregation, and other issues. He alleges all these grievances\n\f8 No. 15-3077\n\nwere either ignored outright or, if reviewed, his concerns\nwere not addressed. He testified in his deposition, however,\nthat he did not know whether the grievances were reviewed\nor investigated. We know from the record that at least three\nof these grievances (filed in March 2012, April 2012, and July\n2012) were subjected to “Emergency Review” by Marc Hodge\n(the warden at Lawrence). The record also includes responses\nto many of Giles’s appeals of his grievances alleging that he\nwas not receiving his medication, that segregation placement\nwas not conducive to his mental health, and that the facilities\nlacked proper mental health programs. These appeals were\nall denied, as the Department’s Administrative Review Board\n(the “ARB”) determined, “[b]ased on a total review of all\navailable information,” that the complaints were without\nmerit.\n Giles was eventually transferred back to Dixon in early\n2014.\n B. District Court Proceedings\n Giles filed this suit pro se on September 4, 2012. He named\nseveral defendants, nine of which remain in the case at this\nstage: S.A. Godinez (the Department’s acting director during\nthe relevant time period), Richard Birkey (the warden at Illi-\nnois River), Leonta Jackson (the assistant warden at Illinois\nRiver), Ron Zessin (the clinical services supervisor at Illinois\nRiver), Randy Pfister (the warden at Pontiac), Michael Lemke\n(the assistant warden at Pontiac), Marc Hodge (the warden at\nLawrence), Mark Storm (the assistant warden at Lawrence),\nand Randy Stevenson (the clinical services supervisor at\n\fNo. 15-3077 9\n\nLawrence).3 Giles asserted three claims under the Eighth\nAmendment, seeking to hold the defendants liable for these\nalleged constitutional violations pursuant to 42 U.S.C. § 1983.\nFirst, he asserted a claim of deliberate indiﬀerence to serious\nmedical needs based on his allegations of inadequate treat-\nment and delays in providing medication at Illinois River,\nPontiac, and Lawrence. Second, he asserted a conditions-of-\nconfinement claim based on his allegations of vermin infesta-\ntions and unsanitary conditions while in segregation at Pon-\ntiac and Lawrence. Third, he asserted a failure-to-protect\nclaim based on the February 2012 altercation.\n The case was referred to a U.S. magistrate judge in late\n2012, with Giles’s consent. The defendants moved for sum-\nmary judgment in June 2014. The magistrate judge issued a\nReport & Recommendation (R&R) and recommended grant-\ning summary judgment on the ground that Giles failed to\nshow deliberate indiﬀerence. After a de novo review of the\nR&R and Giles’s objections thereto, the district court adopted\nthe R&R in its entirety and granted summary judgment to the\ndefendants.\n Throughout the district court proceedings, Giles filed mul-\ntiple motions to appoint counsel. He first filed such a motion\non September 4, 2012. The magistrate judge denied the motion\nbecause Giles had not demonstrated that he had attempted to\nfind counsel on his own. On December 17, Giles filed a motion\nto reconsider his motion to appoint counsel after attempting\nunsuccessfully to find an attorney. The magistrate judge again\ndenied the motion, holding that the issues in the case were not\n\n\n 3 Five other defendants, also Department officials, were dismissed by\nthe district court in November 2012.\n\f10 No. 15-3077\n\nfactually complex because discovery had been limited at that\ntime to only the issue of exhaustion of administrative reme-\ndies. The court held that Giles was competent to litigate on his\nown at that stage. Giles filed another motion to appoint coun-\nsel on July 2, 2013. The court reaﬃrmed its previous decision\nthat Giles appeared competent to litigate the case at the cur-\nrent stage and stated that the issue of appointing counsel\nwould not be reconsidered until after the resolution of the ad-\nministrative remedies issue.\n In August 2013, after the defendants’ deadline to raise a\nfailure to exhaust administrative remedies defense had ex-\npired, Giles once again moved the court to appoint counsel\nfor him. The magistrate judge construed the motion as a mo-\ntion for recruitment of counsel and granted it, noting that the\ncourt has no authority to appoint counsel in § 1983 cases but\ncan seek to recruit a volunteer attorney. See Navejar v. Iyiola,\n718 F.3d 692, 696 (7th Cir. 2013). The district court circulated\na request for representation to the court’s list of “approxi-\nmately 50 licensed and registered attorneys that have indi-\ncated an interest in representing indigent litigants in this dis-\ntrict.” However, no attorneys were willing and available to\nrepresent Giles immediately.\n Giles moved in February 2014 for additional time to seek\ncounsel. Giles argued he needed legal assistance to “prepare\ndocuments, for dispositive motions, and discovery.” The\nmagistrate judge denied the motion because Giles had not\nspecified a deadline for the extension request, but he stated he\nwould continue to seek a volunteer to represent Giles. Giles\nfiled another motion to recruit counsel in May 2014. The mag-\nistrate judge denied the motion as moot, having already\ngranted the earlier motion to recruit, but once again solicited\n\fNo. 15-3077 11\n\nvolunteers from the pro bono list. Giles moved for recruit-\nment of counsel again in August 2014 while summary judg-\nment was pending. The magistrate judge again explained that\nthe motion to recruit counsel had previously been granted\nand that the court had done all it could to solicit a volunteer.\nGiles’s case was published to the list of volunteers a third\ntime. The magistrate judge encouraged Giles to continue liti-\ngating the case to the best of his ability. Finally, Giles filed a\nmotion to appoint counsel once again in December 2014,\nwhich the district court denied as moot in January 2015, stat-\ning that it had already granted Giles’s motion to recruit and\nthat Giles would be notified if an attorney volunteered to take\nthe case.\n Giles also moved multiple times, beginning on October 16,\n2014, to appoint an expert. The magistrate judge denied these\nmotions, stating “[t]he discovery period is closed, but the\nplaintiﬀ may later seek to appoint an expert for trial if the [de-\nfendants’] motion for summary judgment is denied.”\n Giles now appeals the district court’s grant of summary\njudgment on his claim for deliberate indiﬀerence to serious\nmedical needs and his conditions-of-confinement claim, as\nwell as the district court’s actions regarding his motions to re-\ncruit counsel and appoint an expert.\n II. Discussion\n We review the district court’s grant of summary judgment\nde novo. Knopick v. Jayco, Inc., 895 F.3d 525, 528 (7th Cir. 2018).\nA district court properly grants summary judgment where\nthere is no genuine dispute as to any material fact and the\nmoving party is entitled to judgment as a matter of law. FED.\nR. CIV. P. 56(a); Valenti v. Lawson, 889 F.3d 427, 429 (7th Cir.\n\f12 No. 15-3077\n\n2018). All justifiable inferences are drawn in favor of the non-\nmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255\n(1986). The non-movant must, however, present specific facts\nestablishing a material issue for trial, and any inferences must\nrely on more than mere speculation or conjecture. Aguilar v.\nGaston-Camara, 861 F.3d 626, 630–31 (7th Cir. 2017).\n The Eighth Amendment, applicable to the States through\nthe Fourteenth Amendment, prohibits the infliction of “cruel\nand unusual punishments.” U.S. CONST. amend. VIII; Estelle v.\nGamble, 429 U.S. 97, 101 (1976). The Supreme Court has inter-\npreted the Eighth Amendment to prohibit any punishments\n“which, although not physically barbarous, ‘involve the un-\nnecessary and wanton infliction of pain.’” Rhodes v. Chapman,\n452 U.S. 337, 346 (1981) (quoting Gregg v. Georgia, 428 U.S. 153,\n173 (1976)). Thus, the Eighth Amendment gives rise to consti-\ntutional claims by inmates alleging that the conditions of their\nconfinement violate this prohibition by imposing “the wanton\nand unnecessary infliction of pain.” See Rhodes, 452 U.S. at 347.\nThe Supreme Court has further established that prison oﬃ-\ncials impose wanton and unnecessary infliction of pain when\nthey are deliberately indiﬀerent to an inmate’s serious medi-\ncal needs. Estelle, 429 U.S. at 104. Giles here appeals summary\njudgment on both a claim of deliberate indiﬀerence to his se-\nrious medical needs as well as a conditions-of-confinement\nclaim. We discuss each in turn.\n A. Deliberate Indiﬀerence to Serious Medical Needs\n To establish an Eighth Amendment claim for deliberate in-\ndiﬀerence to serious medical needs, the plaintiﬀ must show\ntwo elements: one objective and one subjective. Whiting v.\nWexford Health Sources, Inc., 839 F.3d 658, 662 (7th Cir. 2016).\n“[T]he plaintiﬀ must prove that he suﬀered from ‘(1) an\n\fNo. 15-3077 13\n\nobjectively serious medical condition to which (2) a state oﬃ-\ncial was deliberately, that is subjectively, indiﬀerent.’” Id.\n(quoting Duckworth v. Ahmad, 532 F.3d 675, 679 (7th Cir.\n2008)). “[D]eliberate means more than negligent,” though\n“something less than purposeful.” Duckworth, 532 F.3d at 679.\nWe have described this subjective element as “’a suﬃciently\nculpable state of mind,’ something akin to recklessness.”\nArnett v. Webster, 658 F.3d 742, 751 (7th Cir. 2011) (quoting\nJohnson v. Snyder, 444 F.3d 579, 585 (7th Cir. 2006), overruled on\nother grounds by Hill v. Tangherlini, 724 F.3d 965, 967 n.1 (7th\nCir. 2013)). Although the inmate must demonstrate deliberate\nindiﬀerence, he “is not required to show that he was literally\nignored.” Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005)\n(quoting Sherrod v. Lingle, 223 F.3d 605, 611 (7th Cir. 2000)).\n Regarding the objective element of his claim, Giles has\nclearly met his burden. His schizoaﬀective disorder diagno-\nsis, his symptoms, and his multiple prescriptions for psycho-\ntropic medications firmly establish that he suﬀered from an\nobjectively serious medical condition. See id. (“A serious med-\nical condition is one that has been diagnosed by a physician\nas mandating treatment or one that is so obvious that even a\nlay person would perceive the need for a doctor’s attention.”).\nGiles’s claim hinges, therefore, on whether he has shown the\ndefendants possessed the “suﬃciently culpable state of\nmind” necessary to establish the subjective element of delib-\nerate indiﬀerence. The district court held that Giles failed to\nmeet this burden. We agree.\n Giles cannot establish the subjective element of his claim\nbecause the defendants are all non-medical oﬃcials who rea-\nsonably relied on the judgment of medical professionals. We\nhave long recognized that the division of labor within a prison\n\f14 No. 15-3077\n\nnecessitates that non-medical oﬃcials may reasonably defer\nto the judgment of medical professionals regarding inmate\ntreatment. “If a prisoner is under the care of medical experts\n… a non-medical prison oﬃcial will generally be justified in\nbelieving that the prisoner is in capable hands.” Id. at 656\n(quoting Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004)). As\nthe Third Circuit has held, “absent a reason to believe (or ac-\ntual knowledge) that prison doctors or their assistants are\nmistreating (or not treating) a prisoner, a non-medical prison\noﬃcial … will not be chargeable with the Eighth Amendment\nscienter requirement of deliberate indiﬀerence.” Spruill, 372\nF.3d at 236.\n In Hayes v. Snyder, 546 F.3d 516, 527–28 (7th Cir. 2008), we\naﬃrmed summary judgment for non-medical prison oﬃcials\nwho relied on the professional judgment of prison medical\nstaﬀ. Like Giles, the inmate in Hayes sent several letters and\nfiled multiple grievances alleging he was receiving inade-\nquate treatment for his objectively serious medical condition.\nId. at 526. Although the non-medical oﬃcials did not ignore\nthe inmate’s grievances entirely, they did not investigate fur-\nther than the medical staﬀ’s reports and summaries, and oth-\nerwise simply referred the complaints to the medical staﬀ. Id.\nat 527. We held that the non-medical oﬃcials did not have\n“any duty to do more than they did, in light of their\nknowledge of the situation.” Id. They “were entitled to rely on\nthe professional judgment of medical prison oﬃcials” and\n“nothing in [the medical] reports made it obvious that [the in-\nmate] might not be receiving adequate care.” Id. at 527–28.\n A review of the record demonstrates that throughout his\nvarious stints at Illinois River, Stateville, Pontiac, and Law-\nrence, Giles was receiving regular medical attention from\n\fNo. 15-3077 15\n\npsychologists, psychiatrists, and mental health professionals.\nAlthough the record does not contain detailed information\nabout what the grievance procedures were at each facility, it\ndoes contain evidence that several of his grievances were sub-\njected to emergency review. Furthermore, Giles’s appeals\nwere reviewed by the ARB, which found his complaints to be\nwithout merit upon investigation. Giles has not presented ev-\nidence that his grievances were ignored or mishandled. Nor\nwas there an indication from his medical records that he was\nnot receiving adequate care. In short, the non-medical oﬃcials\nrelied on the medical professionals to provide proper treat-\nment, and there was nothing to give notice to the oﬃcials of a\nneed to intervene.\n Giles asserts the defendants were deliberately indiﬀerent\nby allowing him to “go on and oﬀ of his medication many\ntimes” despite knowing his health condition required contin-\nuous treatment. However, the record does not support this as-\nsertion. Giles’s medications were discontinued in July 2010\nwhile still at Dixon pursuant to a decision made by medical\nprofessionals. Several weeks later, after being transferred first\nto Illinois River and then to Stateville, Giles was placed back\non medications soon after he requested them. Although there\nwere other brief delays in his receipt of medication, when he\nbrought these to the medical professionals’ attention his con-\ncerns were addressed, or else it was determined after a review\nof all available information that he was properly receiving his\nmedication as prescribed. Even during one of the periods\nwhere Giles alleged he was not receiving his medication, a\npsychiatrist reported after an extended interview that Giles’s\ndemeanor was good, he was coherent and alert, and he dis-\nplayed no acute distress or agitation. Such reports from the\nmedical professionals charged with Giles’s care defy the\n\f16 No. 15-3077\n\nconclusion that the non-medical defendants knew of and dis-\nregarded an excessive risk to Giles’s health and safety.\n The most serious lapse in treatment was the two-week pe-\nriod in November 2010 when he was transferred back to Illi-\nnois River from Stateville. This lapse was caused by a failure\nto include his current prescriptions on his transfer summary.\nWhile this was certainly a concerning oversight, it does not\nmeet the standard of deliberate indiﬀerence: a knowing dis-\nregard of an excessive risk to Giles’s health and safety. As we\nhave noted before, “deliberate means more than negligent.”\nDuckworth, 532 F.3d at 679. Giles’s medication was re-pre-\nscribed as soon as he was examined by a psychologist at Illi-\nnois River, who requested and reviewed Giles’s medical rec-\nords from Stateville.\n No reasonable jury could find that the defendants knew of\nand disregarded an excessive risk to Giles’s health and safety,\nand thus summary judgment on this claim was appropriate.\n B. Conditions of Confinement\n Giles also appeals the grant of summary judgment on his\nconditions-of-confinement claim. Although the complaint fo-\ncused on specific conditions to which Giles was subjected\nwhile in segregation (such as vermin infestations, filthiness,\nand lengthy periods of isolation), on appeal Giles has re-\nframed the violation as being the combined eﬀect that these\nconditions had on his mental health.4 He asserts his place-\nment in segregation subjected him to conditions which exac-\nerbated his symptoms, or which were more diﬃcult for him\n\n 4 Giles’s counsel explained at oral argument “what’s happening to his\n\nmental health while he’s in segregation is the conditions of confinement\nviolation.”\n\fNo. 15-3077 17\n\nto cope with due to his symptoms. He argues that even\nthough segregation placement and the conditions of his con-\nfinement may not have been cruel and unusual in the case of\nan ordinary inmate, they amounted to cruel and unusual\ntreatment in his case given their combined eﬀect on his illness.\n The Eighth Amendment prohibits the States from subject-\ning prisoners to conditions of confinement amounting to cruel\nand unusual punishment. Rhodes, 452 U.S. at 345–47. Accord-\ning to the Supreme Court, however, “extreme deprivations\nare required to make out a conditions-of-confinement claim.”\nHudson v. McMillian, 503 U.S. 1, 9 (1992). Whether conditions\nof confinement are cruel and unusual must be judged in ac-\ncordance with contemporary standards of decency. Id. at 8;\nRhodes, 452 U.S. at 346. If under contemporary standards the\nconditions cannot be said to be cruel and unusual, then they\nare not unconstitutional, and “[t]o the extent that such condi-\ntions are restrictive and even harsh, they are part of the pen-\nalty that criminal oﬀenders pay for their oﬀenses against so-\nciety.” Rhodes, 452 U.S. at 347.\n As with a claim for deliberate indiﬀerence to serious med-\nical needs, a conditions-of-confinement claim includes an ob-\njective and a subjective component. Isby v. Brown, 856 F.3d\n508, 521 (7th Cir. 2017). The plaintiﬀ must first establish “an\nobjective showing that the conditions are suﬃciently seri-\nous—i.e., that they deny the inmate ‘the minimal civilized\nmeasure of life’s necessities,’ creating an excessive risk to the\ninmate’s health and safety.” Id. (quoting Rhodes, 452 U.S. at\n347) (internal citations omitted). The plaintiﬀ must next estab-\nlish “a subjective showing of a defendant’s culpable state of\nmind.” Id. Once again, the state of mind necessary to establish\nliability is deliberate indiﬀerence to the inmate’s health or\n\f18 No. 15-3077\n\nsafety. Estate of Novack ex rel. Turbin v. Cty. of Wood, 226 F.3d\n525, 529 (7th Cir. 2000).\n Giles attempts to satisfy the objective element by arguing\nthat placing a mentally ill inmate in segregation—under con-\nditions that exacerbate his symptoms or with which he has\ndiﬃculty coping due to his symptoms—is an objectively seri-\nous condition creating an excessive risk to his health and\nsafety. We have indeed recognized that prolonged segregated\nconfinement may constitute an Eighth Amendment violation\nin some instances. See Isby, 856 F.3d at 521 (quoting Rice ex rel.\nRice v. Corr. Med. Servs., 675 F.3d 650, 666 (7th Cir. 2012)). We\nhave also held that the aggregate eﬀect of a multitude of indi-\nvidual conditions may constitute a violation even if each in-\ndividual condition could not establish a violation standing on\nits own. Id. at 522. However, this only occurs when the condi-\ntions “have a mutually enforcing eﬀect that produces the dep-\nrivation of a single, identifiable human need such as food,\nwarmth, or exercise.” Id. (quoting Wilson v. Seiter, 501 U.S. 294,\n304 (1991)). The core issue is whether the conditions deprived\nthe plaintiﬀ of a “minimal civilized measure of life’s necessi-\nties.” Rice, 675 F.3d at 664–65.\n While we do not deny that Giles experienced harsh condi-\ntions in segregation, the record does not support a finding\nthat he was deprived of the minimal civilized measure of life’s\nnecessities, even considering the eﬀects on his mental condi-\ntion. He was regularly evaluated by mental health profession-\nals at all facilities, and they repeatedly determined that his\ncondition did not contraindicate continued segregation. And\non the occasion in November 2011 when a mental health pro-\nfessional determined that his mental condition was being ex-\nacerbated by his cell assignment, he was reassigned and\n\fNo. 15-3077 19\n\nmoved the next day, checked on less than a week later, and\nwas found to have notably improved. Giles has therefore not\nestablished the objective element of his claim.\n Even if Giles could establish an objectively serious condi-\ntion, he ultimately fails to establish the necessary subjective\ncomponent of his claim: the defendants’ culpable state of\nmind. Once again, the defendants relied on the judgment of\nthe medical professionals into whose care Giles was en-\ntrusted. No reasonable jury could find that the defendants\nconsciously disregarded an excessive risk to Giles’s health by\nkeeping him in segregation when the mental health profes-\nsionals continually reported it was appropriate to do so.\n Since Giles failed to establish both the objective and sub-\njective elements of his claim, summary judgment in favor of\nthe defendants was proper.\n C. Motions to Recruit Counsel and Appoint Expert\n The final issue on appeal concerns the district court’s han-\ndling of Giles’s motions to appoint or recruit counsel and to\nappoint an expert. We review the district court’s decisions on\nthese motions for abuse of discretion. Pruitt v. Mote, 503 F.3d\n647, 649, 658 (7th Cir. 2007) (en banc) (reviewing a decision on\na motion to recruit counsel for abuse of discretion); Ledford v.\nSullivan, 105 F.3d 354, 358 (7th Cir. 1997) (holding that a deci-\nsion on a motion for appointment of an expert witness is re-\nviewed for abuse of discretion). In reviewing for abuse of dis-\ncretion, we do not substitute our own judgment for the dis-\ntrict court’s; rather, the “decision must strike us as fundamen-\ntally wrong for an abuse of discretion to occur.” Ladien v.\nAstrachan, 128 F.3d 1051, 1056 (7th Cir. 1997).\n\f20 No. 15-3077\n\n We note at the outset of our discussion that “[t]here is no\nright to court-appointed counsel in federal civil litigation.”\nOlson v. Morgan, 750 F.3d 708, 711 (7th Cir. 2014). However,\nthe district court does have the discretion to recruit a volun-\nteer to represent a plaintiﬀ who cannot otherwise aﬀord coun-\nsel. Navejar, 718 F.3d at 696. The court “must rely on the gen-\nerosity of lawyers to volunteer their time and skill on behalf\nof indigent civil parties.” Wilborn v. Ealey, 881 F.3d 998, 1008\n(7th Cir. 2018).\n Evaluating whether to recruit counsel involves a two-step\nprocess. First, the court must determine if the plaintiﬀ made\na reasonable attempt to secure counsel on his own. Navejar,\n718 F.3d at 696. Next, the court must examine “whether the\ndiﬃculty of the case—factually and legally—exceeds the par-\nticular plaintiﬀ’s capacity as a layperson to coherently present\nit.” Id. (quoting Pruitt, 503 F.3d at 655). Even where the court\ndecides to recruit a volunteer, however, it does not have “an\nindefinite commitment to search until a volunteer is found.”\nWilborn, 881 F.3d at 1008.\n The insuﬃcient number of volunteer attorneys in some of\nour districts limits courts’ ability to locate representation for\nindigents. See James v. Eli, 889 F.3d 320, 330–31 (7th Cir. 2018).\nThis case presents the question of what a court should do in\nthe event a court determines that the case’s complexity ap-\npears to exceed the plaintiﬀ’s capacity to litigate his claims\nand the court exercises discretion to seek a volunteer attorney\nbut is unable to find one.\n We considered a similar question in Wilborn v. Ealey, 881\nF.3d 998 (7th Cir. 2018). In that case, the plaintiﬀ filed multiple\nmotions to recruit counsel. The district court eventually\ngranted one such motion and spent several months searching.\n\fNo. 15-3077 21\n\nAfter contacting over four hundred attorneys, the court iden-\ntified a volunteer. This success was short-lived, though. The\nattorney had a scheduling conflict, which ultimately led the\ncourt to grant his motion to withdraw. Despite this change,\nthe plaintiﬀ did not file another motion to recruit counsel. The\ncourt oﬀered to postpone the trial, but the plaintiﬀ declined\nthe court’s oﬀer. As a result, the court allowed the plaintiﬀ to\nproceed to trial pro se. Based on those facts, we decided that\nthe court’s eﬀorts were “more than enough to satisfy any duty\nto the indigent plaintiﬀ,” and we held that the court did not\nabuse its discretion in allowing the plaintiﬀ to try his case pro\nse. Id. at 1008.\n Here too, we conclude that the district court fulfilled its\nobligation to Giles by circulating a request for representation\nto the court’s list of approximately fifty attorneys on three sep-\narate occasions over the course of one year. Yet it is somewhat\nconcerning that at some point the court determined further\nsearching would be futile and, without communicating that\nupdate to Giles, decided it was appropriate to resolve the\npending motion for summary judgment.\n Acknowledging that “[t]here are limits to what a court\nmust do after deciding to recruit counsel,” id., in cases such as\nthis—where the complexities of litigating are high, having\ncounsel is increasingly important, and a district court has con-\ncluded that it is unable to locate a volunteer attorney—it\nwould be advisable for a judge to communicate with the\nplaintiﬀ and consider oﬀering a reasonable continuance be-\nfore proceeding to rule on a dispositive motion. The addi-\ntional time after a court has exhausted its search eﬀorts might\naﬀord a limited opportunity for indigent litigants to seek\n\f22 No. 15-3077\n\ncounsel on their own, or at a minimum, conduct some prelim-\ninary discovery.\n The district court also denied Giles’s motion to appoint an\nexpert witness, holding that an expert was not necessary be-\nfore summary judgment but stating that Giles could move to\nappoint an expert for trial if his case survived summary judg-\nment. A court may, in its discretion, appoint an expert witness\nwhere the expert’s “specialized knowledge will assist the\ntrier-of-fact to understand the evidence or decide a fact in is-\nsue.” Ledford, 105 F.3d at 358–59. The district court determined\nGiles’s claims failed as a matter of law to show the defendants\nknowingly disregarded a substantial risk of serious harm to\nhim. This decision did not hinge on specialized knowledge or\nfact-finding. Instead, the court recognized Giles had received\nconsistent treatment from medical professionals and the de-\nfendants had relied on the medical judgment of those profes-\nsionals. The grant of summary judgment was based on Giles’s\nfailure to establish the defendants’ suﬃciently culpable state\nof mind, not on a technical analysis of the medical treatment\nhe received or the suﬃciency of that treatment. Thus, the dis-\ntrict court acted fully within its discretion by denying the mo-\ntion to appoint an expert witness at that stage of litigation.\n III. Conclusion\n Prison is, by its very nature, an unpleasant place to be, and\nwe have no doubt that Giles’s objectively serious condition\nand symptoms contributed to his overall discomfort. The dis-\npositive defect of Giles’s case, however, is that the defendants\nagainst whom he has filed this action are non-medical oﬃcials\nwho were entitled by law to rely on the judgment of the med-\nical professionals under whose care Giles was placed. Section\n1983 does not create a system of vicarious liability. The\n\fNo. 15-3077 23\n\ndefendants cannot be held liable unless they were aware of\nfacts from which a reasonable inference could be drawn that\nGiles was subjected to a substantial risk of serious harm, drew\nsuch an inference, and yet did not intervene. Based on this\nrecord, we hold that Giles has failed to make that showing,\nand therefore has failed as a matter of law to establish delib-\nerate indiﬀerence. We AFFIRM the judgment of the district\ncourt.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4362799/", "author_raw": "Daniel Anthony Manion"}]}	FLAUM	MANION		0		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4585546/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Bruce GILES, Plaintiff-Appellant, v. Salvador A. GODINEZ, Acting Director, Et Al., Defendants-Appellees.\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-29\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 15-3077\nBRUCE GILES,\n Plaintiff-Appellant,\n v.\n\nSALVADOR A. GODINEZ, Acting Director, et al.,\n Defendants-Appellees.\n ____________________\n\n Appeal from the United States District Court for the\n Southern District of Illinois.\n No. 3:12-cv-00965 — J. Phil Gilbert, Judge.\n ____________________\n\n ARGUED NOVEMBER 8, 2018 — DECIDED JANUARY 29, 2019\n ____________________\n\n Before FLAUM, MANION, and ST. EVE, Circuit Judges.\n MANION, Circuit Judge. Bruce Giles is a prisoner in the cus-\ntody of the Illinois Department of Corrections (the “Depart-\nment”) who suﬀers from schizoaﬀective disorder. Giles filed\nthis action pro se under 42 U.S.C. § 1983 against several De-\npartment oﬃcials. He alleges the defendants violated his\nrights under the Eighth Amendment by being deliberately in-\ndiﬀerent to his serious medical needs, subjecting him to un-\nconstitutional conditions of confinement, and failing to\n\f2 No. 15-3077\n\nprotect him from other inmates. The district court granted\nsummary judgment to the defendants and Giles now appeals.\nThe district court’s conclusion was based largely on its hold-\ning that Giles could not establish the subjective elements of\nhis claims because the defendants, who are all non-medical\noﬃcials, appropriately relied on the judgment of medical pro-\nfessionals. Because we agree Giles cannot establish the de-\nfendants possessed a suﬃciently culpable state of mind, we\naﬃrm.\n I. Background\n A. Factual Background\n At all times relevant to this appeal, Giles was in the cus-\ntody of the Department and housed in five diﬀerent correc-\ntional facilities: Dixon Correctional Center (“Dixon”), Illinois\nRiver Correctional Center (“Illinois River”), Stateville Correc-\ntional Center (“Stateville”), Pontiac Correctional Center\n(“Pontiac”), and Lawrence Correctional Center (“Lawrence”).\nHe suﬀers from schizoaﬀective disorder. His symptoms in-\nclude anxiety, depression, auditory hallucinations, and sui-\ncidal ideation. He attempted suicide at least three times while\nin the Department’s custody. He has at various times been\nprescribed psychotropic medications that help him cope with\nthese symptoms but do not eliminate them entirely.\n Giles’s claims arise out of the medical treatment he re-\nceived and the conditions of his confinement at multiple cor-\nrectional facilities over a two-year period. Most of his com-\nplaints relate specifically to his placement in segregation.1 The\n\n 1 Although Giles’s placement in segregation is at the core of his com-\nplaint, the exact duration of his periods in segregation and the nature of\nsegregation placement at each facility are not clear from the record or\n\fNo. 15-3077 3\n\nfollowing timeline of events is compiled from Giles’s allega-\ntions, his medical records, and his deposition testimony.\n From late June 2010 until September 2010, Giles was\nhoused at Dixon, where he alleges he had daily access to men-\ntal health professionals and the opportunity to participate in\ntherapeutic programs.2 On September 22, 2010, Giles was\ntransferred from Dixon to Illinois River. According to the\nhealth status transfer summary prepared by an oﬃcial at\nDixon at the time of Giles’s transfer, Giles’s prescription for\npsychotropic medications (Prozac and Depakote) had been\ndiscontinued on July 23, 2010, about two months before he left\nDixon.\n Giles was examined by a nurse at Illinois River on October\n3, 2010, at which point he requested to see a psychologist be-\ncause he wanted to get back on his medications. The nurse\nnoted he was “upset that [he] cannot see psych today.” Three\ndays later, on October 6, Giles was transferred to Stateville\ndue to an unrelated legal proceeding. On October 9, while\nGiles was at Stateville, a psychiatrist again prescribed Prozac\nand Depakote, less than a week after he requested the return\nto medication.\n\n\n\n\nGiles’s allegations. As best as can be discerned, Giles was placed in segre-\ngation during two separate periods and at three different facilities: first, at\nIllinois River and Pontiac from March 2011 to approximately July 2011 (he\nwas transferred to Pontiac in April), and second, at Lawrence from Febru-\nary 2012 until approximately November 2012.\n 2 Giles acknowledged in his deposition that he did not avail himself\nof these programs, however, until he returned to Dixon after filing this\nsuit.\n\f4 No. 15-3077\n\n Giles was sent back to Illinois River on November 10, 2010.\nThis time, his transfer summary failed to include the fact that\nhe was receiving psychotropic medications, resulting in a\nlapse of medication. Giles was examined by a mental health\ncounselor on November 22 and then by a psychiatrist on No-\nvember 25. The psychiatrist again prescribed Prozac and De-\npakote and requested Giles’s medical records from Stateville.\nGiles was examined by a medical health counselor on Decem-\nber 8. On December 12, a psychiatrist reviewed Giles’s medi-\ncal records from Stateville and noticed Giles had received Pro-\nlixin while there and his symptoms had improved, so Giles\nwas placed back on Prolixin.\n Giles was examined by a mental health counselor on ten\ndiﬀerent occasions from December 2010 until April 2011. He\nwas also examined by a psychiatrist and attended group ther-\napy sessions multiple times in January until he stopped show-\ning up for the sessions in February.\n Giles complained to a mental health counselor in March\n2011 that he was not doing well and that he had not received\nhis Prolixin medication for two days. The counselor wrote in\nhis report that he addressed the medication issue with the\nprison pharmacy. Around this time, Giles had an altercation\nwith another inmate at Illinois River. According to Giles’s\ndeposition testimony, the incident occurred when he was\ntalking to himself and another inmate approached him, told\nhim to shut up, and spit in his face. Giles pushed the inmate\naway. He claims the reason he was talking to himself was be-\ncause he had not received his Prolixin medication, which\nhelps control the voices in his head.\n Because of the altercation, Giles was placed in segregation.\nAccording to Giles, while in segregation “you’re just thrown\n\fNo. 15-3077 5\n\nin a cell all day with other inmates that are violent, that don’t\ncare about you.” He claims he was subjected to violence from\nother inmates in segregation but that he never reported this\nto prison oﬃcials. He testified inmates in segregation were\ngiven yard time, but that he sometimes chose not to go be-\ncause he did not feel safe in the yard, claiming “that is where\nusually everybody fights.”\n After being placed in segregation in March 2011, Giles at-\ntempted suicide by cutting his wrists on his bed frame. His\ntestimony indicates his cousin had passed away around this\ntime and that his cellmate would not let him sleep at night.\nHe also testified his symptoms were “just getting so bad,” par-\nticularly the voices in his head, even though he acknowledges\nhe was receiving his medications at this time. The stress from\nthese combined factors led to his suicide attempt. Giles’s cell-\nmate notified the prison staﬀ and Giles was rescued. After\nthis, he was placed on suicide watch and was examined by\nmental health professionals.\n Giles was examined by a mental health counselor on\nApril 1 and April 8, 2011. The counselor noted there was “po-\ntential for exaggeration of symptoms” and that Giles was “co-\nherent” with “no overt distress.”\n Giles was again transferred from Illinois River on April 13,\n2011, this time to Pontiac. He remained in segregation at Pon-\ntiac. While at Pontiac, Giles alleges he received medication\nand one-on-one therapy, to “try to give [him] a little hope.”\nHe felt this treatment was insuﬃcient. He alleges he was not\ngiven his medications “about twice.” A psychiatrist discontin-\nued Giles’s existing prescriptions and prescribed new psycho-\ntropic medications on April 26. Three days later, Giles was\nagain examined by a psychiatrist who noted “there is nothing\n\f6 No. 15-3077\n\nto contraindicate continued segregation placement at this\ntime.”\n Giles received an extended interview with a psychiatrist\non May 24, 2011. During this session, Giles stated he was\n“fine, except that [he had] not been getting [his] Prolixin.” The\npsychiatrist noted Giles’s mood was good; he was awake,\nalert, and oriented; he displayed “[n]o acute distress/agita-\ntion”; his speech was “fluent and coherent”; and his\n“thoughts were organized.” Giles denied having any suicidal\nor homicidal thoughts. Besides claiming he had not been re-\nceiving Prolixin, “[h]e made no mention of any other serious\nconcerns.” Giles was still in segregation at this time.\n Giles was scheduled for another psychiatric appointment\non July 5, 2011, which he did not attend, opting to go to the\nprison yard instead. He was evaluated by a mental health pro-\nfessional on July 29, who again noted “there is nothing to con-\ntraindicate continued segregation placement at this time.” As\nbest as can be discerned from the record, Giles was removed\nfrom segregation sometime during July 2011.\n Giles was transferred to Lawrence in early September\n2011. He was examined by mental health professionals three\ntimes in September, four times in October, twice in Novem-\nber, twice in December, and three times in February 2012. Af-\nter one of the October examinations, the mental health profes-\nsional determined Giles was having issues with his cellmate\nand his cell assignment was exacerbating his symptoms. As a\nresult, Giles was assigned a new cell and cellmate the next\nday. Notes from his examination the following week indicate\n“notable improvement.”\n\fNo. 15-3077 7\n\n In February 2012, Giles was involved in another alterca-\ntion with an inmate, which formed the basis of his original\nfailure-to-protect claim. This altercation occurred when he ac-\ncidentally bumped into the other inmate in the mess hall\nwhile talking to himself. The other inmate assumed Giles was\ntalking to him and struck him in retaliation. Giles was ren-\ndered unconscious by the attack. Giles testified in his deposi-\ntion he had never had trouble with this inmate before and\nnever told the facility staﬀ he felt he was in danger, but that\n“it happened because of my symptoms. I was there, and [the\nother inmate] just happened to be aggressive.” During the in-\nvestigation of the altercation, when he was asked (apparently\nby prison oﬃcials) if he was “guilty,” Giles alleges he simply\nresponded he was. As a result, both Giles and the other inmate\nwere placed in segregation. Giles apparently stayed in segre-\ngation from February until November 2012.\n Giles was examined by mental health professionals nine\nmore times during the period spanning from March to July\n2012. During this time, he expressed his unhappiness at Law-\nrence, his unhappiness with being in segregation, and the\nanxiety he felt regarding the possibility of future altercations.\nGiles reported diﬃculties with cellmates and frequently re-\nquested reassignment. The mental health professionals noted\nGiles lacked focus during treatment sessions and often did\nnot complete assigned therapy homework.\n Throughout the two years at issue, Giles filed at least nine-\nteen grievances. His complaints related to insuﬃcient medical\ntreatment, delays or interruptions in receiving medication,\nunconstitutional conditions of confinement, lack of adequate\nsuicide prevention, vermin infestations, his unhappiness in\nsegregation, and other issues. He alleges all these grievances\n\f8 No. 15-3077\n\nwere either ignored outright or, if reviewed, his concerns\nwere not addressed. He testified in his deposition, however,\nthat he did not know whether the grievances were reviewed\nor investigated. We know from the record that at least three\nof these grievances (filed in March 2012, April 2012, and July\n2012) were subjected to “Emergency Review” by Marc Hodge\n(the warden at Lawrence). The record also includes responses\nto many of Giles’s appeals of his grievances alleging that he\nwas not receiving his medication, that segregation placement\nwas not conducive to his mental health, and that the facilities\nlacked proper mental health programs. These appeals were\nall denied, as the Department’s Administrative Review Board\n(the “ARB”) determined, “[b]ased on a total review of all\navailable information,” that the complaints were without\nmerit.\n Giles was eventually transferred back to Dixon in early\n2014.\n B. District Court Proceedings\n Giles filed this suit pro se on September 4, 2012. He named\nseveral defendants, nine of which remain in the case at this\nstage: S.A. Godinez (the Department’s acting director during\nthe relevant time period), Richard Birkey (the warden at Illi-\nnois River), Leonta Jackson (the assistant warden at Illinois\nRiver), Ron Zessin (the clinical services supervisor at Illinois\nRiver), Randy Pfister (the warden at Pontiac), Michael Lemke\n(the assistant warden at Pontiac), Marc Hodge (the warden at\nLawrence), Mark Storm (the assistant warden at Lawrence),\nand Randy Stevenson (the clinical services supervisor at\n\fNo. 15-3077 9\n\nLawrence).3 Giles asserted three claims under the Eighth\nAmendment, seeking to hold the defendants liable for these\nalleged constitutional violations pursuant to 42 U.S.C. § 1983.\nFirst, he asserted a claim of deliberate indiﬀerence to serious\nmedical needs based on his allegations of inadequate treat-\nment and delays in providing medication at Illinois River,\nPontiac, and Lawrence. Second, he asserted a conditions-of-\nconfinement claim based on his allegations of vermin infesta-\ntions and unsanitary conditions while in segregation at Pon-\ntiac and Lawrence. Third, he asserted a failure-to-protect\nclaim based on the February 2012 altercation.\n The case was referred to a U.S. magistrate judge in late\n2012, with Giles’s consent. The defendants moved for sum-\nmary judgment in June 2014. The magistrate judge issued a\nReport & Recommendation (R&R) and recommended grant-\ning summary judgment on the ground that Giles failed to\nshow deliberate indiﬀerence. After a de novo review of the\nR&R and Giles’s objections thereto, the district court adopted\nthe R&R in its entirety and granted summary judgment to the\ndefendants.\n Throughout the district court proceedings, Giles filed mul-\ntiple motions to appoint counsel. He first filed such a motion\non September 4, 2012. The magistrate judge denied the motion\nbecause Giles had not demonstrated that he had attempted to\nfind counsel on his own. On December 17, Giles filed a motion\nto reconsider his motion to appoint counsel after attempting\nunsuccessfully to find an attorney. The magistrate judge again\ndenied the motion, holding that the issues in the case were not\n\n\n 3 Five other defendants, also Department officials, were dismissed by\nthe district court in November 2012.\n\f10 No. 15-3077\n\nfactually complex because discovery had been limited at that\ntime to only the issue of exhaustion of administrative reme-\ndies. The court held that Giles was competent to litigate on his\nown at that stage. Giles filed another motion to appoint coun-\nsel on July 2, 2013. The court reaﬃrmed its previous decision\nthat Giles appeared competent to litigate the case at the cur-\nrent stage and stated that the issue of appointing counsel\nwould not be reconsidered until after the resolution of the ad-\nministrative remedies issue.\n In August 2013, after the defendants’ deadline to raise a\nfailure to exhaust administrative remedies defense had ex-\npired, Giles once again moved the court to appoint counsel\nfor him. The magistrate judge construed the motion as a mo-\ntion for recruitment of counsel and granted it, noting that the\ncourt has no authority to appoint counsel in § 1983 cases but\ncan seek to recruit a volunteer attorney. See Navejar v. Iyiola,\n718 F.3d 692, 696 (7th Cir. 2013). The district court circulated\na request for representation to the court’s list of “approxi-\nmately 50 licensed and registered attorneys that have indi-\ncated an interest in representing indigent litigants in this dis-\ntrict.” However, no attorneys were willing and available to\nrepresent Giles immediately.\n Giles moved in February 2014 for additional time to seek\ncounsel. Giles argued he needed legal assistance to “prepare\ndocuments, for dispositive motions, and discovery.” The\nmagistrate judge denied the motion because Giles had not\nspecified a deadline for the extension request, but he stated he\nwould continue to seek a volunteer to represent Giles. Giles\nfiled another motion to recruit counsel in May 2014. The mag-\nistrate judge denied the motion as moot, having already\ngranted the earlier motion to recruit, but once again solicited\n\fNo. 15-3077 11\n\nvolunteers from the pro bono list. Giles moved for recruit-\nment of counsel again in August 2014 while summary judg-\nment was pending. The magistrate judge again explained that\nthe motion to recruit counsel had previously been granted\nand that the court had done all it could to solicit a volunteer.\nGiles’s case was published to the list of volunteers a third\ntime. The magistrate judge encouraged Giles to continue liti-\ngating the case to the best of his ability. Finally, Giles filed a\nmotion to appoint counsel once again in December 2014,\nwhich the district court denied as moot in January 2015, stat-\ning that it had already granted Giles’s motion to recruit and\nthat Giles would be notified if an attorney volunteered to take\nthe case.\n Giles also moved multiple times, beginning on October 16,\n2014, to appoint an expert. The magistrate judge denied these\nmotions, stating “[t]he discovery period is closed, but the\nplaintiﬀ may later seek to appoint an expert for trial if the [de-\nfendants’] motion for summary judgment is denied.”\n Giles now appeals the district court’s grant of summary\njudgment on his claim for deliberate indiﬀerence to serious\nmedical needs and his conditions-of-confinement claim, as\nwell as the district court’s actions regarding his motions to re-\ncruit counsel and appoint an expert.\n II. Discussion\n We review the district court’s grant of summary judgment\nde novo. Knopick v. Jayco, Inc., 895 F.3d 525, 528 (7th Cir. 2018).\nA district court properly grants summary judgment where\nthere is no genuine dispute as to any material fact and the\nmoving party is entitled to judgment as a matter of law. FED.\nR. CIV. P. 56(a); Valenti v. Lawson, 889 F.3d 427, 429 (7th Cir.\n\f12 No. 15-3077\n\n2018). All justifiable inferences are drawn in favor of the non-\nmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255\n(1986). The non-movant must, however, present specific facts\nestablishing a material issue for trial, and any inferences must\nrely on more than mere speculation or conjecture. Aguilar v.\nGaston-Camara, 861 F.3d 626, 630–31 (7th Cir. 2017).\n The Eighth Amendment, applicable to the States through\nthe Fourteenth Amendment, prohibits the infliction of “cruel\nand unusual punishments.” U.S. CONST. amend. VIII; Estelle v.\nGamble, 429 U.S. 97, 101 (1976). The Supreme Court has inter-\npreted the Eighth Amendment to prohibit any punishments\n“which, although not physically barbarous, ‘involve the un-\nnecessary and wanton infliction of pain.’” Rhodes v. Chapman,\n452 U.S. 337, 346 (1981) (quoting Gregg v. Georgia, 428 U.S. 153,\n173 (1976)). Thus, the Eighth Amendment gives rise to consti-\ntutional claims by inmates alleging that the conditions of their\nconfinement violate this prohibition by imposing “the wanton\nand unnecessary infliction of pain.” See Rhodes, 452 U.S. at 347.\nThe Supreme Court has further established that prison oﬃ-\ncials impose wanton and unnecessary infliction of pain when\nthey are deliberately indiﬀerent to an inmate’s serious medi-\ncal needs. Estelle, 429 U.S. at 104. Giles here appeals summary\njudgment on both a claim of deliberate indiﬀerence to his se-\nrious medical needs as well as a conditions-of-confinement\nclaim. We discuss each in turn.\n A. Deliberate Indiﬀerence to Serious Medical Needs\n To establish an Eighth Amendment claim for deliberate in-\ndiﬀerence to serious medical needs, the plaintiﬀ must show\ntwo elements: one objective and one subjective. Whiting v.\nWexford Health Sources, Inc., 839 F.3d 658, 662 (7th Cir. 2016).\n“[T]he plaintiﬀ must prove that he suﬀered from ‘(1) an\n\fNo. 15-3077 13\n\nobjectively serious medical condition to which (2) a state oﬃ-\ncial was deliberately, that is subjectively, indiﬀerent.’” Id.\n(quoting Duckworth v. Ahmad, 532 F.3d 675, 679 (7th Cir.\n2008)). “[D]eliberate means more than negligent,” though\n“something less than purposeful.” Duckworth, 532 F.3d at 679.\nWe have described this subjective element as “’a suﬃciently\nculpable state of mind,’ something akin to recklessness.”\nArnett v. Webster, 658 F.3d 742, 751 (7th Cir. 2011) (quoting\nJohnson v. Snyder, 444 F.3d 579, 585 (7th Cir. 2006), overruled on\nother grounds by Hill v. Tangherlini, 724 F.3d 965, 967 n.1 (7th\nCir. 2013)). Although the inmate must demonstrate deliberate\nindiﬀerence, he “is not required to show that he was literally\nignored.” Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005)\n(quoting Sherrod v. Lingle, 223 F.3d 605, 611 (7th Cir. 2000)).\n Regarding the objective element of his claim, Giles has\nclearly met his burden. His schizoaﬀective disorder diagno-\nsis, his symptoms, and his multiple prescriptions for psycho-\ntropic medications firmly establish that he suﬀered from an\nobjectively serious medical condition. See id. (“A serious med-\nical condition is one that has been diagnosed by a physician\nas mandating treatment or one that is so obvious that even a\nlay person would perceive the need for a doctor’s attention.”).\nGiles’s claim hinges, therefore, on whether he has shown the\ndefendants possessed the “suﬃciently culpable state of\nmind” necessary to establish the subjective element of delib-\nerate indiﬀerence. The district court held that Giles failed to\nmeet this burden. We agree.\n Giles cannot establish the subjective element of his claim\nbecause the defendants are all non-medical oﬃcials who rea-\nsonably relied on the judgment of medical professionals. We\nhave long recognized that the division of labor within a prison\n\f14 No. 15-3077\n\nnecessitates that non-medical oﬃcials may reasonably defer\nto the judgment of medical professionals regarding inmate\ntreatment. “If a prisoner is under the care of medical experts\n… a non-medical prison oﬃcial will generally be justified in\nbelieving that the prisoner is in capable hands.” Id. at 656\n(quoting Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004)). As\nthe Third Circuit has held, “absent a reason to believe (or ac-\ntual knowledge) that prison doctors or their assistants are\nmistreating (or not treating) a prisoner, a non-medical prison\noﬃcial … will not be chargeable with the Eighth Amendment\nscienter requirement of deliberate indiﬀerence.” Spruill, 372\nF.3d at 236.\n In Hayes v. Snyder, 546 F.3d 516, 527–28 (7th Cir. 2008), we\naﬃrmed summary judgment for non-medical prison oﬃcials\nwho relied on the professional judgment of prison medical\nstaﬀ. Like Giles, the inmate in Hayes sent several letters and\nfiled multiple grievances alleging he was receiving inade-\nquate treatment for his objectively serious medical condition.\nId. at 526. Although the non-medical oﬃcials did not ignore\nthe inmate’s grievances entirely, they did not investigate fur-\nther than the medical staﬀ’s reports and summaries, and oth-\nerwise simply referred the complaints to the medical staﬀ. Id.\nat 527. We held that the non-medical oﬃcials did not have\n“any duty to do more than they did, in light of their\nknowledge of the situation.” Id. They “were entitled to rely on\nthe professional judgment of medical prison oﬃcials” and\n“nothing in [the medical] reports made it obvious that [the in-\nmate] might not be receiving adequate care.” Id. at 527–28.\n A review of the record demonstrates that throughout his\nvarious stints at Illinois River, Stateville, Pontiac, and Law-\nrence, Giles was receiving regular medical attention from\n\fNo. 15-3077 15\n\npsychologists, psychiatrists, and mental health professionals.\nAlthough the record does not contain detailed information\nabout what the grievance procedures were at each facility, it\ndoes contain evidence that several of his grievances were sub-\njected to emergency review. Furthermore, Giles’s appeals\nwere reviewed by the ARB, which found his complaints to be\nwithout merit upon investigation. Giles has not presented ev-\nidence that his grievances were ignored or mishandled. Nor\nwas there an indication from his medical records that he was\nnot receiving adequate care. In short, the non-medical oﬃcials\nrelied on the medical professionals to provide proper treat-\nment, and there was nothing to give notice to the oﬃcials of a\nneed to intervene.\n Giles asserts the defendants were deliberately indiﬀerent\nby allowing him to “go on and oﬀ of his medication many\ntimes” despite knowing his health condition required contin-\nuous treatment. However, the record does not support this as-\nsertion. Giles’s medications were discontinued in July 2010\nwhile still at Dixon pursuant to a decision made by medical\nprofessionals. Several weeks later, after being transferred first\nto Illinois River and then to Stateville, Giles was placed back\non medications soon after he requested them. Although there\nwere other brief delays in his receipt of medication, when he\nbrought these to the medical professionals’ attention his con-\ncerns were addressed, or else it was determined after a review\nof all available information that he was properly receiving his\nmedication as prescribed. Even during one of the periods\nwhere Giles alleged he was not receiving his medication, a\npsychiatrist reported after an extended interview that Giles’s\ndemeanor was good, he was coherent and alert, and he dis-\nplayed no acute distress or agitation. Such reports from the\nmedical professionals charged with Giles’s care defy the\n\f16 No. 15-3077\n\nconclusion that the non-medical defendants knew of and dis-\nregarded an excessive risk to Giles’s health and safety.\n The most serious lapse in treatment was the two-week pe-\nriod in November 2010 when he was transferred back to Illi-\nnois River from Stateville. This lapse was caused by a failure\nto include his current prescriptions on his transfer summary.\nWhile this was certainly a concerning oversight, it does not\nmeet the standard of deliberate indiﬀerence: a knowing dis-\nregard of an excessive risk to Giles’s health and safety. As we\nhave noted before, “deliberate means more than negligent.”\nDuckworth, 532 F.3d at 679. Giles’s medication was re-pre-\nscribed as soon as he was examined by a psychologist at Illi-\nnois River, who requested and reviewed Giles’s medical rec-\nords from Stateville.\n No reasonable jury could find that the defendants knew of\nand disregarded an excessive risk to Giles’s health and safety,\nand thus summary judgment on this claim was appropriate.\n B. Conditions of Confinement\n Giles also appeals the grant of summary judgment on his\nconditions-of-confinement claim. Although the complaint fo-\ncused on specific conditions to which Giles was subjected\nwhile in segregation (such as vermin infestations, filthiness,\nand lengthy periods of isolation), on appeal Giles has re-\nframed the violation as being the combined eﬀect that these\nconditions had on his mental health.4 He asserts his place-\nment in segregation subjected him to conditions which exac-\nerbated his symptoms, or which were more diﬃcult for him\n\n 4 Giles’s counsel explained at oral argument “what’s happening to his\n\nmental health while he’s in segregation is the conditions of confinement\nviolation.”\n\fNo. 15-3077 17\n\nto cope with due to his symptoms. He argues that even\nthough segregation placement and the conditions of his con-\nfinement may not have been cruel and unusual in the case of\nan ordinary inmate, they amounted to cruel and unusual\ntreatment in his case given their combined eﬀect on his illness.\n The Eighth Amendment prohibits the States from subject-\ning prisoners to conditions of confinement amounting to cruel\nand unusual punishment. Rhodes, 452 U.S. at 345–47. Accord-\ning to the Supreme Court, however, “extreme deprivations\nare required to make out a conditions-of-confinement claim.”\nHudson v. McMillian, 503 U.S. 1, 9 (1992). Whether conditions\nof confinement are cruel and unusual must be judged in ac-\ncordance with contemporary standards of decency. Id. at 8;\nRhodes, 452 U.S. at 346. If under contemporary standards the\nconditions cannot be said to be cruel and unusual, then they\nare not unconstitutional, and “[t]o the extent that such condi-\ntions are restrictive and even harsh, they are part of the pen-\nalty that criminal oﬀenders pay for their oﬀenses against so-\nciety.” Rhodes, 452 U.S. at 347.\n As with a claim for deliberate indiﬀerence to serious med-\nical needs, a conditions-of-confinement claim includes an ob-\njective and a subjective component. Isby v. Brown, 856 F.3d\n508, 521 (7th Cir. 2017). The plaintiﬀ must first establish “an\nobjective showing that the conditions are suﬃciently seri-\nous—i.e., that they deny the inmate ‘the minimal civilized\nmeasure of life’s necessities,’ creating an excessive risk to the\ninmate’s health and safety.” Id. (quoting Rhodes, 452 U.S. at\n347) (internal citations omitted). The plaintiﬀ must next estab-\nlish “a subjective showing of a defendant’s culpable state of\nmind.” Id. Once again, the state of mind necessary to establish\nliability is deliberate indiﬀerence to the inmate’s health or\n\f18 No. 15-3077\n\nsafety. Estate of Novack ex rel. Turbin v. Cty. of Wood, 226 F.3d\n525, 529 (7th Cir. 2000).\n Giles attempts to satisfy the objective element by arguing\nthat placing a mentally ill inmate in segregation—under con-\nditions that exacerbate his symptoms or with which he has\ndiﬃculty coping due to his symptoms—is an objectively seri-\nous condition creating an excessive risk to his health and\nsafety. We have indeed recognized that prolonged segregated\nconfinement may constitute an Eighth Amendment violation\nin some instances. See Isby, 856 F.3d at 521 (quoting Rice ex rel.\nRice v. Corr. Med. Servs., 675 F.3d 650, 666 (7th Cir. 2012)). We\nhave also held that the aggregate eﬀect of a multitude of indi-\nvidual conditions may constitute a violation even if each in-\ndividual condition could not establish a violation standing on\nits own. Id. at 522. However, this only occurs when the condi-\ntions “have a mutually enforcing eﬀect that produces the dep-\nrivation of a single, identifiable human need such as food,\nwarmth, or exercise.” Id. (quoting Wilson v. Seiter, 501 U.S. 294,\n304 (1991)). The core issue is whether the conditions deprived\nthe plaintiﬀ of a “minimal civilized measure of life’s necessi-\nties.” Rice, 675 F.3d at 664–65.\n While we do not deny that Giles experienced harsh condi-\ntions in segregation, the record does not support a finding\nthat he was deprived of the minimal civilized measure of life’s\nnecessities, even considering the eﬀects on his mental condi-\ntion. He was regularly evaluated by mental health profession-\nals at all facilities, and they repeatedly determined that his\ncondition did not contraindicate continued segregation. And\non the occasion in November 2011 when a mental health pro-\nfessional determined that his mental condition was being ex-\nacerbated by his cell assignment, he was reassigned and\n\fNo. 15-3077 19\n\nmoved the next day, checked on less than a week later, and\nwas found to have notably improved. Giles has therefore not\nestablished the objective element of his claim.\n Even if Giles could establish an objectively serious condi-\ntion, he ultimately fails to establish the necessary subjective\ncomponent of his claim: the defendants’ culpable state of\nmind. Once again, the defendants relied on the judgment of\nthe medical professionals into whose care Giles was en-\ntrusted. No reasonable jury could find that the defendants\nconsciously disregarded an excessive risk to Giles’s health by\nkeeping him in segregation when the mental health profes-\nsionals continually reported it was appropriate to do so.\n Since Giles failed to establish both the objective and sub-\njective elements of his claim, summary judgment in favor of\nthe defendants was proper.\n C. Motions to Recruit Counsel and Appoint Expert\n The final issue on appeal concerns the district court’s han-\ndling of Giles’s motions to appoint or recruit counsel and to\nappoint an expert. We review the district court’s decisions on\nthese motions for abuse of discretion. Pruitt v. Mote, 503 F.3d\n647, 649, 658 (7th Cir. 2007) (en banc) (reviewing a decision on\na motion to recruit counsel for abuse of discretion); Ledford v.\nSullivan, 105 F.3d 354, 358 (7th Cir. 1997) (holding that a deci-\nsion on a motion for appointment of an expert witness is re-\nviewed for abuse of discretion). In reviewing for abuse of dis-\ncretion, we do not substitute our own judgment for the dis-\ntrict court’s; rather, the “decision must strike us as fundamen-\ntally wrong for an abuse of discretion to occur.” Ladien v.\nAstrachan, 128 F.3d 1051, 1056 (7th Cir. 1997).\n\f20 No. 15-3077\n\n We note at the outset of our discussion that “[t]here is no\nright to court-appointed counsel in federal civil litigation.”\nOlson v. Morgan, 750 F.3d 708, 711 (7th Cir. 2014). However,\nthe district court does have the discretion to recruit a volun-\nteer to represent a plaintiﬀ who cannot otherwise aﬀord coun-\nsel. Navejar, 718 F.3d at 696. The court “must rely on the gen-\nerosity of lawyers to volunteer their time and skill on behalf\nof indigent civil parties.” Wilborn v. Ealey, 881 F.3d 998, 1008\n(7th Cir. 2018).\n Evaluating whether to recruit counsel involves a two-step\nprocess. First, the court must determine if the plaintiﬀ made\na reasonable attempt to secure counsel on his own. Navejar,\n718 F.3d at 696. Next, the court must examine “whether the\ndiﬃculty of the case—factually and legally—exceeds the par-\nticular plaintiﬀ’s capacity as a layperson to coherently present\nit.” Id. (quoting Pruitt, 503 F.3d at 655). Even where the court\ndecides to recruit a volunteer, however, it does not have “an\nindefinite commitment to search until a volunteer is found.”\nWilborn, 881 F.3d at 1008.\n The insuﬃcient number of volunteer attorneys in some of\nour districts limits courts’ ability to locate representation for\nindigents. See James v. Eli, 889 F.3d 320, 330–31 (7th Cir. 2018).\nThis case presents the question of what a court should do in\nthe event a court determines that the case’s complexity ap-\npears to exceed the plaintiﬀ’s capacity to litigate his claims\nand the court exercises discretion to seek a volunteer attorney\nbut is unable to find one.\n We considered a similar question in Wilborn v. Ealey, 881\nF.3d 998 (7th Cir. 2018). In that case, the plaintiﬀ filed multiple\nmotions to recruit counsel. The district court eventually\ngranted one such motion and spent several months searching.\n\fNo. 15-3077 21\n\nAfter contacting over four hundred attorneys, the court iden-\ntified a volunteer. This success was short-lived, though. The\nattorney had a scheduling conflict, which ultimately led the\ncourt to grant his motion to withdraw. Despite this change,\nthe plaintiﬀ did not file another motion to recruit counsel. The\ncourt oﬀered to postpone the trial, but the plaintiﬀ declined\nthe court’s oﬀer. As a result, the court allowed the plaintiﬀ to\nproceed to trial pro se. Based on those facts, we decided that\nthe court’s eﬀorts were “more than enough to satisfy any duty\nto the indigent plaintiﬀ,” and we held that the court did not\nabuse its discretion in allowing the plaintiﬀ to try his case pro\nse. Id. at 1008.\n Here too, we conclude that the district court fulfilled its\nobligation to Giles by circulating a request for representation\nto the court’s list of approximately fifty attorneys on three sep-\narate occasions over the course of one year. Yet it is somewhat\nconcerning that at some point the court determined further\nsearching would be futile and, without communicating that\nupdate to Giles, decided it was appropriate to resolve the\npending motion for summary judgment.\n Acknowledging that “[t]here are limits to what a court\nmust do after deciding to recruit counsel,” id., in cases such as\nthis—where the complexities of litigating are high, having\ncounsel is increasingly important, and a district court has con-\ncluded that it is unable to locate a volunteer attorney—it\nwould be advisable for a judge to communicate with the\nplaintiﬀ and consider oﬀering a reasonable continuance be-\nfore proceeding to rule on a dispositive motion. The addi-\ntional time after a court has exhausted its search eﬀorts might\naﬀord a limited opportunity for indigent litigants to seek\n\f22 No. 15-3077\n\ncounsel on their own, or at a minimum, conduct some prelim-\ninary discovery.\n The district court also denied Giles’s motion to appoint an\nexpert witness, holding that an expert was not necessary be-\nfore summary judgment but stating that Giles could move to\nappoint an expert for trial if his case survived summary judg-\nment. A court may, in its discretion, appoint an expert witness\nwhere the expert’s “specialized knowledge will assist the\ntrier-of-fact to understand the evidence or decide a fact in is-\nsue.” Ledford, 105 F.3d at 358–59. The district court determined\nGiles’s claims failed as a matter of law to show the defendants\nknowingly disregarded a substantial risk of serious harm to\nhim. This decision did not hinge on specialized knowledge or\nfact-finding. Instead, the court recognized Giles had received\nconsistent treatment from medical professionals and the de-\nfendants had relied on the medical judgment of those profes-\nsionals. The grant of summary judgment was based on Giles’s\nfailure to establish the defendants’ suﬃciently culpable state\nof mind, not on a technical analysis of the medical treatment\nhe received or the suﬃciency of that treatment. Thus, the dis-\ntrict court acted fully within its discretion by denying the mo-\ntion to appoint an expert witness at that stage of litigation.\n III. Conclusion\n Prison is, by its very nature, an unpleasant place to be, and\nwe have no doubt that Giles’s objectively serious condition\nand symptoms contributed to his overall discomfort. The dis-\npositive defect of Giles’s case, however, is that the defendants\nagainst whom he has filed this action are non-medical oﬃcials\nwho were entitled by law to rely on the judgment of the med-\nical professionals under whose care Giles was placed. Section\n1983 does not create a system of vicarious liability. The\n\fNo. 15-3077 23\n\ndefendants cannot be held liable unless they were aware of\nfacts from which a reasonable inference could be drawn that\nGiles was subjected to a substantial risk of serious harm, drew\nsuch an inference, and yet did not intervene. Based on this\nrecord, we hold that Giles has failed to make that showing,\nand therefore has failed as a matter of law to establish delib-\nerate indiﬀerence. We AFFIRM the judgment of the district\ncourt.\n[END_CASE]", "role": "user" } ]
4,585,547		Aleksey Ruderman v. Matthew G. Whitaker	2019-01-29	17-1689	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before WOOD, Chief Judge, and EASTERBROOK and BARRETT, Circuit Judges.", "parties": "", "opinions": [{"author": "BARRETT, Circuit Judge", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________ \nNo. 17‐1689 \nALEKSEY ARKADYEVICH RUDERMAN, \n Petitioner, \n v. \n\nMATTHEW G. WHITAKER, \nActing Attorney General of the United States, \n Respondent. \n ____________________ \n\n Petition for Review of an Order of \n the Board of Immigration Appeals. \n No. A076‐054‐163 \n ____________________ \n\n ARGUED FEBRUARY 20, 2018 — DECIDED JANUARY 29, 2019 \n ____________________ \n\n Before WOOD, Chief Judge, and EASTERBROOK and BARRETT, \nCircuit Judges. \n BARRETT, Circuit Judge. Aleksey Arkadyevich Ruderman is \nseeking to avoid removal to Belarus, his native country. An \nimmigration judge ruled that Ruderman was inadmissible \nunder the Immigration and Nationality Act, 8 U.S.C. \n§ 1182(a)(2)(B), and thus subject to removal. The judge also \n\f2 No. 17‐1689 \n\nheld that Ruderman was not eligible for a waiver of inadmis‐\nsibility and adjustment of status, cancellation of removal, asy‐\nlum, withholding of removal, or protection under the Con‐\nvention Against Torture. The Board of Immigration Appeals \nagreed. In particular, it held that Ruderman had not raised \nany meaningful challenge to his inadmissibility determina‐\ntion and that even if the immigration judge had applied the \nwrong legal standard to determine that Ruderman was ineli‐\ngible for a waiver of inadmissibility, her alternative discre‐\ntionary denial made the error harmless. \n Ruderman petitions us for review of those holdings, along \nwith others reached by the immigration judge and aﬃrmed \nby the Board. While we largely agree with the Board’s analy‐\nsis, we hold that it was flawed with respect to one issue: the \nquestion whether Ruderman is statutorily inadmissible. We \ntherefore grant Ruderman’s petition and remand for the \nBoard to revisit that question and, if necessary, to decide \nwhether Ruderman is eligible for a waiver. \n I. \n Ruderman moved to the United States when he was nine‐\nteen to escape discrimination and violence directed at him on \naccount of his Jewish heritage. He moved from his native land \nof Belarus, a former Soviet republic that declared independ‐\nence during his childhood. In Belarus, Ruderman and his fam‐\nily were targeted for abuse by Neo‐Nazis and pro‐Russia ad‐\nvocates who would shout profanities at them, perform the \nNazi salute, leave anti‐Jewish propaganda in their mailbox, \nand throw bottles and stones at their home. \n Ruderman received even worse treatment at school. His \n(sometimes much older) classmates would bully and beat him \n\fNo. 17‐1689 3 \n\nand the handful of other Jewish students. The head of the \nschool and the police were alerted but did nothing to address \nthe situation. One particularly severe attack resulted in \nstitches and a permanent scar, while another resulted in two \nbroken wrists that have bothered him ever since. \n After attackers broke Ruderman’s wrists, his parents sent \nhim to a private school where he would be safer. His time \nthere was cut short, however, by his father’s death. Arkady \nRuderman, a documentary filmmaker, died while filming a \npiece on government corruption in Tajikistan—another for‐\nmer Soviet republic. Although government oﬃcials reported \nthat he was killed in a car accident, Arkady had previously \nbeen detained and battered by the KGB, and eyewitnesses \nsaid that they saw bullet holes in his dead body. Those reports \ncould not be confirmed because the police ordered that \nArkady’s casket remain closed at his funeral—and then at‐\ntended the event to make sure that it did. \n Without Arkady’s income, Ruderman’s family could no \nlonger aﬀord his private school tuition, so Ruderman enrolled \nat a diﬀerent public school where he was subjected to familiar \nanti‐Semitic verbal abuse. He became so afraid that in the \nninth grade he stopped attending classes entirely and later \ntransferred to a technical school. There, in spite of continued \nverbal abuse, he performed well and graduated with high \ngrades. Once out of school, however, he found that his Jewish \nheritage made it diﬃcult for him to get a job. \n Fed up with the abuse and intolerance, Ruderman fled to \nthe United States in 2001 under a provision known as the \nLautenberg Amendment, which lowers barriers to immigra‐\ntion for certain former soviet nationals. See Pub. L. No. 101‐\n167, tit. V, §§ 599D–E, 103 Stat. 1195, 1261–64 (1989) (codified \n\f4 No. 17‐1689 \n\nas amended at 8 U.S.C. § 1157 note, § 1255 note). His life in \nAmerica got oﬀ to a rocky start; shortly after arriving he was \nconvicted of driving under the influence of alcohol and sen‐\ntenced to court supervision. But over the next several years, \nhe found work as a cab driver and a security oﬃcer, met his \nfuture wife Elena, and moved into an apartment with her and \nher two children in Milwaukee. \n In 2008, Ruderman struck and killed a pedestrian with his \nvehicle while driving drunk. He accepted responsibility, \npleaded guilty to homicide by negligent operation of a vehi‐\ncle, and was convicted and sentenced to five years in prison. \nFollowing his release in 2013, he worked at a transportation \ncompany—until U.S. Customs and Immigration Services de‐\nnied his adjustment‐of‐status application, causing his work \npermit to expire. \n In January of 2016, the government detained Ruderman \nand began removal proceedings. The immigration judge ulti‐\nmately concluded that Ruderman was statutorily inadmissi‐\nble because of his two convictions. The judge also denied \nRuderman’s applications for a waiver of inadmissibility, ad‐\njustment of status under the Lautenberg Amendment, cancel‐\nlation of removal, asylum, withholding of removal, and pro‐\ntection under the Convention Against Torture. \n Ruderman appealed the immigration judge’s decision in \nan extensive pro se brief and later in a second brief filed by \npro bono counsel. The counseled brief supplemented certain \narguments that Ruderman had made in his initial brief but \nconceded others. Significantly, the later brief conceded that \n“[Ruderman’s] convictions for two crimes with an aggregate \nprison sentence of five years make him ‘inadmissible.’” That \nconcession contradicted Ruderman’s pro se argument that the \n\fNo. 17‐1689 5 \n\ninadmissibility statute applies only when two or more convic‐\ntions each result in a sentence to confinement, and so Ruder‐\nman’s sole sentence to confinement—which imposed five \nyears in prison—did not make him inadmissible. \n The Board dismissed Ruderman’s appeal. First, it noted in \npassing that Ruderman “ha[d] not raised any meaningful \nchallenges” to his inadmissibility, and thus the issue was \n“waived.” Second, the Board adopted and aﬃrmed the immi‐\ngration judge’s denial of Ruderman’s applications for cancel‐\nlation of removal, withholding of removal, and protection un‐\nder the Convention Against Torture. Finally, the Board af‐\nfirmed the denial of Ruderman’s request for a waiver of inad‐\nmissibility and adjustment of status under the Lautenberg \nAmendment. The Board bypassed Ruderman’s argument that \nthe immigration judge had applied the wrong standard to de‐\ntermine whether Ruderman was eligible for a waiver of inad‐\nmissibility and instead aﬃrmed the judge’s conclusion that, \neven if Ruderman were eligible to be considered for a waiver, \nshe would exercise her discretion to deny him relief. \n II. \n Ruderman petitions us for review of the Board’s decision. \nHe takes issue with the Board’s conclusion that he waived his \nopportunity to challenge his inadmissibility, and he argues \nthat the application of the wrong standard for determining his \neligibility for a waiver of inadmissibility contaminated the im‐\nmigration judge’s discretionary denial of a waiver. He also \nclaims that the judge erred by holding—and the Board erred \nby aﬃrming—both that his negligent homicide was “particu‐\nlarly serious” and that he failed to show a “substantial risk” \nthat he would be tortured in Belarus. \n\f6 No. 17‐1689 \n\n Because the Board provided its own analysis and also af‐\nfirmed the immigration judge’s decision, we review both de‐\ncisions. Sobaleva v. Holder, 760 F.3d 592, 596 (7th Cir. 2014). \n A. \n Ruderman argued in his pro se brief that he is not inad‐\nmissible under § 212(a)(2)(B) of the Immigration and Nation‐\nality Act, 8 U.S.C. § 1182(a)(2)(B), because he has only ever re‐\nceived one sentence to confinement. The Act states that an im‐\nmigrant is inadmissible to receive a visa or to be admitted to \nthe United States if he is convicted of “2 or more of‐\nfenses … for which the aggregate sentences to confinement \nwere 5 years or more.” Id. Ruderman interprets “sentences to \nconfinement” to require more than one custodial sentence. He \nsupports this reading by pointing to the word “aggregate,” \nwhich he argues would be superfluous if the statute could be \nsatisfied by a single sentence to confinement. Id. Because his \nfirst conviction—for driving under the influence—did not re‐\nsult in confinement, he concludes that he is not inadmissible. \nHis pro bono counsel, however, conceded Ruderman’s inad‐\nmissibility in a later‐filed brief. \n The Board did not address Ruderman’s inadmissibility ar‐\ngument, instead concluding that he had failed to raise any \nmeaningful challenges to his inadmissibility and so had \nwaived the issue. It appears likely that the Board reached that \nconclusion on the basis of Ruderman’s counsel’s concession, \nbecause Ruderman did raise the argument in several places—\nincluding his notice of appeal and pro se brief, both of which \nremained on the record. But the Board’s opinion did not oth‐\nerwise indicate whether the counseled brief superseded the \npro se brief. \n\fNo. 17‐1689 7 \n\n A later‐in‐time concession waives an issue in federal \ncourt—but we do not know whether that is true before the \nBoard as well. On this record it is unclear why the Board con‐\ncluded that Ruderman waived his challenge, and the Board’s \nfailure to explain inhibits our review of the issue. See SEC v. \nChenery Corp., 332 U.S. 194, 196 (1947) (“[A] reviewing court, \nin dealing with a determination or judgment which an admin‐\nistrative agency alone is authorized to make, must judge the \npropriety of such action solely by the grounds invoked by the \nagency. If those grounds are inadequate or improper, the \ncourt is powerless to aﬃrm the administrative action by sub‐\nstituting what it considers to be a more adequate or proper \nbasis.”). We grant Ruderman’s petition and remand this issue \nto the Board to clarify why it did not address Ruderman’s in‐\nadmissibility argument. \n B. \n If on remand the Board confirms that Ruderman is inad‐\nmissible, his application for a waiver of inadmissibility should \nbe reviewed under the correct legal standard. The immigra‐\ntion judge concluded that Ruderman was statutorily ineligi‐\nble for a waiver because he did not show that his removal \nwould cause “extreme hardship” to his U.S.‐citizen wife. 8 \nU.S.C. § 1182(h)(1)(B). When a waiver is sought in conjunction \nwith an application for a status adjustment under the Lauten‐\nberg Amendment, however, there is no threshold eligibility \nrequirement; a waiver may be granted simply “for humani‐\ntarian purposes, to assure family unity, or when it is other‐\nwise in the public interest.” 8 U.S.C. 1255 note; see also 8 C.F.R. \n§ 1245.7(d). The immigration judge erred by not considering \nRuderman’s application under this less stringent standard. \n\f8 No. 17‐1689 \n\n The Board concluded that this error was harmless because \nthe immigration judge held in the alternative that she would \nexercise her discretion to deny Ruderman relief if he were el‐\nigible to be considered for it. The assumption seems to be that \nthe judge would have made the same discretionary denial of \na waiver under the Lautenberg Amendment as she made un‐\nder § 1182(h). But, as we have already noted, the former pro‐\nvides discretion to grant a waiver for humanitarian purposes, \nto assure family unity, or when it is otherwise in the public \ninterest; the latter entails a potentially more complex consid‐\neration of the ground for exclusion at issue, past immigration \nviolations or criminal history, evidence of rehabilitation, gen‐\neral evidence of good or bad character, strength of family ties, \nduration of residence in the United States, and evidence of \nvalue to the community. See In re Mendez‐Moralez, 21 I. & N. \nDec. 296, 301 (BIA 1996). Because these statutes, along with \nthe cases and regulations interpreting them, articulate distinct \nfactors to be considered in deciding whether to grant a discre‐\ntionary waiver of inadmissibility, the Board cannot simply \nsubstitute one standard for another and assume that the out‐\ncome would be the same. If the Board confirms Ruderman’s \ninadmissibility on remand, it should consider his application \nfor a waiver under the proper framework. \n C. \n Ruderman’s other arguments go nowhere. First, he claims \nthat he is eligible for asylum and withholding of removal be‐\ncause he did not commit a “particularly serious crime.” 8 \nU.S.C. §§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii). Ruderman com‐\nmitted homicide by negligent operation of a vehicle, Wis. Stat. \n§ 940.10(1); he argues that Congress did not intend for crimi‐\n\fNo. 17‐1689 9 \n\nnal negligence like his to qualify as particularly serious. Gen‐\nerally, classification of a crime as “particularly serious” is \nwithin the discretion of the Attorney General—exercised here \nby the Board. Petrov v. Gonzales, 464 F.3d 800, 802 (7th Cir. \n2006). Our review of these classifications is confined to consti‐\ntutional and legal questions. 8 U.S.C. § 1252(a)(2); see also Es‐\ntrada‐Martinez v. Lynch, 809 F.3d 886, 892 (7th Cir. 2015). And \nwhen those legal questions implicate ambiguous statutory \nprovisions, we give deference. See Chevron U.S.A., Inc. v. Nat. \nRes. Def. Council, Inc., 467 U.S. 837, 842–44 (1984). \n We considered the meaning of “particularly serious \ncrime” in some depth in Ali v. Achim, 468 F.3d 462 (7th Cir. \n2006). In that case, the petitioner argued that the Board could \nnot hold that his conviction for “substantial battery with a \ndangerous weapon,” a nonaggravated felony, was a particu‐\nlarly serious crime under § 1158(b)(2) and § 1231(b)(3) be‐\ncause it did not fall within the two categories of crimes iden‐\ntified as per se “particularly serious” in § 1158(b)(2): aggra‐\nvated felonies and other crimes that the Attorney General des‐\nignates by regulation. Id. at 468–69. We disagreed, explaining \nthat the presence of these categories does not cabin the \nBoard’s discretion to determine that nonaggravated felonies \nare particularly serious on a case‐by‐case basis. Id. at 469. In \nthe same way, the Board is not precluded from determining \nthat some crimes of negligence are particularly serious. \n Nor does the Immigration and Nationality Act’s separate \ndefinition of “serious criminal offense” undermine the \nBoard’s interpretation. The Act identifies “driving while in‐\ntoxicated or under the influence of alcohol” as a serious crim‐\ninal offense if it “involves personal injury to another.” 8 U.S.C. \n§ 1101(h)(3). Ruderman argues that “particularly serious \n\f10 No. 17‐1689 \n\ncrime” must be interpreted to require more. Maybe so. But \neven if he’s right, criminally negligent homicide entails more \nthan mere “personal injury,” so the argument is a dead end. \n Finally, even if § 1158(b)(2)(A)(ii) and § 1231(b)(3)(B)(ii) \nwere ambiguous as to whether crimes of negligence could be \n“particularly serious,” Ruderman has not shown that the \nBoard’s interpretation is too unreasonable to merit deference \nunder Chevron. See Ali, 468 F.3d at 470. Nor has he shown that \nthe Board’s interpretation is so likely to conflict with the Con‐\nstitution or international law that we need to consider \nwhether some other interpretation is warranted. \n D. \n Finally, Ruderman contends that the Board should have \ngranted him protection under the Convention Against Tor‐\nture, 8 C.F.R. §§ 1208.16–18. The Convention forbids the re‐\nturn of “a person to another State where there are substantial \ngrounds for believing that he would be in danger of being \nsubjected to torture.” Convention Against Torture and Other \nCruel, Inhuman or Degrading Treatment or Punishment art. \n3(1), Dec. 10, 1984, S. Treaty Doc. No. 100‐20 (1990), 1465 \nU.N.T.S. 85. Federal regulations define torture as requiring \n“the consent or acquiescence of a public oﬃcial.” 8 C.F.R \n§ 1208.18(a)(1). Immigration judges must withhold or defer \nremoval if an applicant demonstrates that “it is more likely \nthan not that he or she would be tortured if removed.” 8 \nC.F.R. § 1208.16(c)(2). We have explained that “more likely \nthan not” means that there is a “substantial risk” that the alien \nwill be tortured. Rodriguez‐Molinero v. Lynch, 808 F.3d 1134, \n1135–36 (7th Cir. 2015); see also Perez‐Montes v. Sessions, 880 \nF.3d 849, 850 (7th Cir. 2018). \n\fNo. 17‐1689 11 \n\n Ruderman argues that the immigration judge both misun‐\nderstood and misapplied the “substantial risk” standard. But \nthere is no evidence of the former; the immigration judge \ncited our decision in Rodriguez‐Molinero and proceeded to an‐\nalyze whether there was a substantial risk that Ruderman \nwould be subject to torture inflicted by or with the consent of \na public oﬃcial if he returned to Belarus. See 8 C.F.R. \n§ 1208.18(a)(1)–(2). And Ruderman fails to establish the latter. \nWe review the Board’s conclusion that there was no substan‐\ntial risk of torture under the “highly deferential substantial \nevidence test,” which mandates denying the petition unless \n“the record evidence compels a contrary conclusion.” Lopez v. \nLynch, 810 F.3d 484, 492 (7th Cir. 2016) (citation omitted). \n The record evidence does not compel a contrary conclu‐\nsion. To be sure, certain findings from the immigration judge \ngive us pause. For one, the judge concluded that there was no \nsubstantial risk of torture for Jews in Belarus because, despite \n“widespread anti‐Semitism in Belarus,” incidents targeting \nJews have been declining. While it is true that the raw number \nof anti‐Jewish incidents in Belarus has declined, so has the \nJewish population. In this context, an absolute decrease in in‐\ncidents does not necessary equate to a relative increase in \nsafety for any individual. Nor does the evidence of Ruder‐\nman’s mother’s safe travel to and from Belarus mean that \nRuderman will be equally safe. His mother has a Christian \nname that is not associated with her late husband, whereas \nRuderman’s patronymic clearly signals that he is both Jewish \nand the son of a known political activist whom the KGB may \nhave tortured and killed. But on the other hand, there is evi‐\ndence that Ruderman became less susceptible to physical at‐\ntacks as he grew and became better able to defend himself, \nthat no one in his family has been threatened in Belarus, and \n\f12 No. 17‐1689 \n\nthat he lived in Belarus for eight years following his father’s \ndeath without any threat of torture on account of his relation‐\nship to his father. Considering all the evidence, the record \ndoes not compel the conclusion that there is a substantial risk \nthat Ruderman would be tortured if he returned to Belarus. \n * * * \n Ruderman’s petition for review is GRANTED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4362800/", "author_raw": "BARRETT, Circuit Judge"}]}	WOOD	EASTERBROOK	BARRETT	1		{"WOOD": ", Chief", "EASTERBROOK": ", Circuit", "BARRETT": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4585547/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Aleksey Ruderman v. Matthew G. Whitaker\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-29\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________ \nNo. 17‐1689 \nALEKSEY ARKADYEVICH RUDERMAN, \n Petitioner, \n v. \n\nMATTHEW G. WHITAKER, \nActing Attorney General of the United States, \n Respondent. \n ____________________ \n\n Petition for Review of an Order of \n the Board of Immigration Appeals. \n No. A076‐054‐163 \n ____________________ \n\n ARGUED FEBRUARY 20, 2018 — DECIDED JANUARY 29, 2019 \n ____________________ \n\n Before WOOD, Chief Judge, and EASTERBROOK and BARRETT, \nCircuit Judges. \n BARRETT, Circuit Judge. Aleksey Arkadyevich Ruderman is \nseeking to avoid removal to Belarus, his native country. An \nimmigration judge ruled that Ruderman was inadmissible \nunder the Immigration and Nationality Act, 8 U.S.C. \n§ 1182(a)(2)(B), and thus subject to removal. The judge also \n\f2 No. 17‐1689 \n\nheld that Ruderman was not eligible for a waiver of inadmis‐\nsibility and adjustment of status, cancellation of removal, asy‐\nlum, withholding of removal, or protection under the Con‐\nvention Against Torture. The Board of Immigration Appeals \nagreed. In particular, it held that Ruderman had not raised \nany meaningful challenge to his inadmissibility determina‐\ntion and that even if the immigration judge had applied the \nwrong legal standard to determine that Ruderman was ineli‐\ngible for a waiver of inadmissibility, her alternative discre‐\ntionary denial made the error harmless. \n Ruderman petitions us for review of those holdings, along \nwith others reached by the immigration judge and aﬃrmed \nby the Board. While we largely agree with the Board’s analy‐\nsis, we hold that it was flawed with respect to one issue: the \nquestion whether Ruderman is statutorily inadmissible. We \ntherefore grant Ruderman’s petition and remand for the \nBoard to revisit that question and, if necessary, to decide \nwhether Ruderman is eligible for a waiver. \n I. \n Ruderman moved to the United States when he was nine‐\nteen to escape discrimination and violence directed at him on \naccount of his Jewish heritage. He moved from his native land \nof Belarus, a former Soviet republic that declared independ‐\nence during his childhood. In Belarus, Ruderman and his fam‐\nily were targeted for abuse by Neo‐Nazis and pro‐Russia ad‐\nvocates who would shout profanities at them, perform the \nNazi salute, leave anti‐Jewish propaganda in their mailbox, \nand throw bottles and stones at their home. \n Ruderman received even worse treatment at school. His \n(sometimes much older) classmates would bully and beat him \n\fNo. 17‐1689 3 \n\nand the handful of other Jewish students. The head of the \nschool and the police were alerted but did nothing to address \nthe situation. One particularly severe attack resulted in \nstitches and a permanent scar, while another resulted in two \nbroken wrists that have bothered him ever since. \n After attackers broke Ruderman’s wrists, his parents sent \nhim to a private school where he would be safer. His time \nthere was cut short, however, by his father’s death. Arkady \nRuderman, a documentary filmmaker, died while filming a \npiece on government corruption in Tajikistan—another for‐\nmer Soviet republic. Although government oﬃcials reported \nthat he was killed in a car accident, Arkady had previously \nbeen detained and battered by the KGB, and eyewitnesses \nsaid that they saw bullet holes in his dead body. Those reports \ncould not be confirmed because the police ordered that \nArkady’s casket remain closed at his funeral—and then at‐\ntended the event to make sure that it did. \n Without Arkady’s income, Ruderman’s family could no \nlonger aﬀord his private school tuition, so Ruderman enrolled \nat a diﬀerent public school where he was subjected to familiar \nanti‐Semitic verbal abuse. He became so afraid that in the \nninth grade he stopped attending classes entirely and later \ntransferred to a technical school. There, in spite of continued \nverbal abuse, he performed well and graduated with high \ngrades. Once out of school, however, he found that his Jewish \nheritage made it diﬃcult for him to get a job. \n Fed up with the abuse and intolerance, Ruderman fled to \nthe United States in 2001 under a provision known as the \nLautenberg Amendment, which lowers barriers to immigra‐\ntion for certain former soviet nationals. See Pub. L. No. 101‐\n167, tit. V, §§ 599D–E, 103 Stat. 1195, 1261–64 (1989) (codified \n\f4 No. 17‐1689 \n\nas amended at 8 U.S.C. § 1157 note, § 1255 note). His life in \nAmerica got oﬀ to a rocky start; shortly after arriving he was \nconvicted of driving under the influence of alcohol and sen‐\ntenced to court supervision. But over the next several years, \nhe found work as a cab driver and a security oﬃcer, met his \nfuture wife Elena, and moved into an apartment with her and \nher two children in Milwaukee. \n In 2008, Ruderman struck and killed a pedestrian with his \nvehicle while driving drunk. He accepted responsibility, \npleaded guilty to homicide by negligent operation of a vehi‐\ncle, and was convicted and sentenced to five years in prison. \nFollowing his release in 2013, he worked at a transportation \ncompany—until U.S. Customs and Immigration Services de‐\nnied his adjustment‐of‐status application, causing his work \npermit to expire. \n In January of 2016, the government detained Ruderman \nand began removal proceedings. The immigration judge ulti‐\nmately concluded that Ruderman was statutorily inadmissi‐\nble because of his two convictions. The judge also denied \nRuderman’s applications for a waiver of inadmissibility, ad‐\njustment of status under the Lautenberg Amendment, cancel‐\nlation of removal, asylum, withholding of removal, and pro‐\ntection under the Convention Against Torture. \n Ruderman appealed the immigration judge’s decision in \nan extensive pro se brief and later in a second brief filed by \npro bono counsel. The counseled brief supplemented certain \narguments that Ruderman had made in his initial brief but \nconceded others. Significantly, the later brief conceded that \n“[Ruderman’s] convictions for two crimes with an aggregate \nprison sentence of five years make him ‘inadmissible.’” That \nconcession contradicted Ruderman’s pro se argument that the \n\fNo. 17‐1689 5 \n\ninadmissibility statute applies only when two or more convic‐\ntions each result in a sentence to confinement, and so Ruder‐\nman’s sole sentence to confinement—which imposed five \nyears in prison—did not make him inadmissible. \n The Board dismissed Ruderman’s appeal. First, it noted in \npassing that Ruderman “ha[d] not raised any meaningful \nchallenges” to his inadmissibility, and thus the issue was \n“waived.” Second, the Board adopted and aﬃrmed the immi‐\ngration judge’s denial of Ruderman’s applications for cancel‐\nlation of removal, withholding of removal, and protection un‐\nder the Convention Against Torture. Finally, the Board af‐\nfirmed the denial of Ruderman’s request for a waiver of inad‐\nmissibility and adjustment of status under the Lautenberg \nAmendment. The Board bypassed Ruderman’s argument that \nthe immigration judge had applied the wrong standard to de‐\ntermine whether Ruderman was eligible for a waiver of inad‐\nmissibility and instead aﬃrmed the judge’s conclusion that, \neven if Ruderman were eligible to be considered for a waiver, \nshe would exercise her discretion to deny him relief. \n II. \n Ruderman petitions us for review of the Board’s decision. \nHe takes issue with the Board’s conclusion that he waived his \nopportunity to challenge his inadmissibility, and he argues \nthat the application of the wrong standard for determining his \neligibility for a waiver of inadmissibility contaminated the im‐\nmigration judge’s discretionary denial of a waiver. He also \nclaims that the judge erred by holding—and the Board erred \nby aﬃrming—both that his negligent homicide was “particu‐\nlarly serious” and that he failed to show a “substantial risk” \nthat he would be tortured in Belarus. \n\f6 No. 17‐1689 \n\n Because the Board provided its own analysis and also af‐\nfirmed the immigration judge’s decision, we review both de‐\ncisions. Sobaleva v. Holder, 760 F.3d 592, 596 (7th Cir. 2014). \n A. \n Ruderman argued in his pro se brief that he is not inad‐\nmissible under § 212(a)(2)(B) of the Immigration and Nation‐\nality Act, 8 U.S.C. § 1182(a)(2)(B), because he has only ever re‐\nceived one sentence to confinement. The Act states that an im‐\nmigrant is inadmissible to receive a visa or to be admitted to \nthe United States if he is convicted of “2 or more of‐\nfenses … for which the aggregate sentences to confinement \nwere 5 years or more.” Id. Ruderman interprets “sentences to \nconfinement” to require more than one custodial sentence. He \nsupports this reading by pointing to the word “aggregate,” \nwhich he argues would be superfluous if the statute could be \nsatisfied by a single sentence to confinement. Id. Because his \nfirst conviction—for driving under the influence—did not re‐\nsult in confinement, he concludes that he is not inadmissible. \nHis pro bono counsel, however, conceded Ruderman’s inad‐\nmissibility in a later‐filed brief. \n The Board did not address Ruderman’s inadmissibility ar‐\ngument, instead concluding that he had failed to raise any \nmeaningful challenges to his inadmissibility and so had \nwaived the issue. It appears likely that the Board reached that \nconclusion on the basis of Ruderman’s counsel’s concession, \nbecause Ruderman did raise the argument in several places—\nincluding his notice of appeal and pro se brief, both of which \nremained on the record. But the Board’s opinion did not oth‐\nerwise indicate whether the counseled brief superseded the \npro se brief. \n\fNo. 17‐1689 7 \n\n A later‐in‐time concession waives an issue in federal \ncourt—but we do not know whether that is true before the \nBoard as well. On this record it is unclear why the Board con‐\ncluded that Ruderman waived his challenge, and the Board’s \nfailure to explain inhibits our review of the issue. See SEC v. \nChenery Corp., 332 U.S. 194, 196 (1947) (“[A] reviewing court, \nin dealing with a determination or judgment which an admin‐\nistrative agency alone is authorized to make, must judge the \npropriety of such action solely by the grounds invoked by the \nagency. If those grounds are inadequate or improper, the \ncourt is powerless to aﬃrm the administrative action by sub‐\nstituting what it considers to be a more adequate or proper \nbasis.”). We grant Ruderman’s petition and remand this issue \nto the Board to clarify why it did not address Ruderman’s in‐\nadmissibility argument. \n B. \n If on remand the Board confirms that Ruderman is inad‐\nmissible, his application for a waiver of inadmissibility should \nbe reviewed under the correct legal standard. The immigra‐\ntion judge concluded that Ruderman was statutorily ineligi‐\nble for a waiver because he did not show that his removal \nwould cause “extreme hardship” to his U.S.‐citizen wife. 8 \nU.S.C. § 1182(h)(1)(B). When a waiver is sought in conjunction \nwith an application for a status adjustment under the Lauten‐\nberg Amendment, however, there is no threshold eligibility \nrequirement; a waiver may be granted simply “for humani‐\ntarian purposes, to assure family unity, or when it is other‐\nwise in the public interest.” 8 U.S.C. 1255 note; see also 8 C.F.R. \n§ 1245.7(d). The immigration judge erred by not considering \nRuderman’s application under this less stringent standard. \n\f8 No. 17‐1689 \n\n The Board concluded that this error was harmless because \nthe immigration judge held in the alternative that she would \nexercise her discretion to deny Ruderman relief if he were el‐\nigible to be considered for it. The assumption seems to be that \nthe judge would have made the same discretionary denial of \na waiver under the Lautenberg Amendment as she made un‐\nder § 1182(h). But, as we have already noted, the former pro‐\nvides discretion to grant a waiver for humanitarian purposes, \nto assure family unity, or when it is otherwise in the public \ninterest; the latter entails a potentially more complex consid‐\neration of the ground for exclusion at issue, past immigration \nviolations or criminal history, evidence of rehabilitation, gen‐\neral evidence of good or bad character, strength of family ties, \nduration of residence in the United States, and evidence of \nvalue to the community. See In re Mendez‐Moralez, 21 I. & N. \nDec. 296, 301 (BIA 1996). Because these statutes, along with \nthe cases and regulations interpreting them, articulate distinct \nfactors to be considered in deciding whether to grant a discre‐\ntionary waiver of inadmissibility, the Board cannot simply \nsubstitute one standard for another and assume that the out‐\ncome would be the same. If the Board confirms Ruderman’s \ninadmissibility on remand, it should consider his application \nfor a waiver under the proper framework. \n C. \n Ruderman’s other arguments go nowhere. First, he claims \nthat he is eligible for asylum and withholding of removal be‐\ncause he did not commit a “particularly serious crime.” 8 \nU.S.C. §§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii). Ruderman com‐\nmitted homicide by negligent operation of a vehicle, Wis. Stat. \n§ 940.10(1); he argues that Congress did not intend for crimi‐\n\fNo. 17‐1689 9 \n\nnal negligence like his to qualify as particularly serious. Gen‐\nerally, classification of a crime as “particularly serious” is \nwithin the discretion of the Attorney General—exercised here \nby the Board. Petrov v. Gonzales, 464 F.3d 800, 802 (7th Cir. \n2006). Our review of these classifications is confined to consti‐\ntutional and legal questions. 8 U.S.C. § 1252(a)(2); see also Es‐\ntrada‐Martinez v. Lynch, 809 F.3d 886, 892 (7th Cir. 2015). And \nwhen those legal questions implicate ambiguous statutory \nprovisions, we give deference. See Chevron U.S.A., Inc. v. Nat. \nRes. Def. Council, Inc., 467 U.S. 837, 842–44 (1984). \n We considered the meaning of “particularly serious \ncrime” in some depth in Ali v. Achim, 468 F.3d 462 (7th Cir. \n2006). In that case, the petitioner argued that the Board could \nnot hold that his conviction for “substantial battery with a \ndangerous weapon,” a nonaggravated felony, was a particu‐\nlarly serious crime under § 1158(b)(2) and § 1231(b)(3) be‐\ncause it did not fall within the two categories of crimes iden‐\ntified as per se “particularly serious” in § 1158(b)(2): aggra‐\nvated felonies and other crimes that the Attorney General des‐\nignates by regulation. Id. at 468–69. We disagreed, explaining \nthat the presence of these categories does not cabin the \nBoard’s discretion to determine that nonaggravated felonies \nare particularly serious on a case‐by‐case basis. Id. at 469. In \nthe same way, the Board is not precluded from determining \nthat some crimes of negligence are particularly serious. \n Nor does the Immigration and Nationality Act’s separate \ndefinition of “serious criminal offense” undermine the \nBoard’s interpretation. The Act identifies “driving while in‐\ntoxicated or under the influence of alcohol” as a serious crim‐\ninal offense if it “involves personal injury to another.” 8 U.S.C. \n§ 1101(h)(3). Ruderman argues that “particularly serious \n\f10 No. 17‐1689 \n\ncrime” must be interpreted to require more. Maybe so. But \neven if he’s right, criminally negligent homicide entails more \nthan mere “personal injury,” so the argument is a dead end. \n Finally, even if § 1158(b)(2)(A)(ii) and § 1231(b)(3)(B)(ii) \nwere ambiguous as to whether crimes of negligence could be \n“particularly serious,” Ruderman has not shown that the \nBoard’s interpretation is too unreasonable to merit deference \nunder Chevron. See Ali, 468 F.3d at 470. Nor has he shown that \nthe Board’s interpretation is so likely to conflict with the Con‐\nstitution or international law that we need to consider \nwhether some other interpretation is warranted. \n D. \n Finally, Ruderman contends that the Board should have \ngranted him protection under the Convention Against Tor‐\nture, 8 C.F.R. §§ 1208.16–18. The Convention forbids the re‐\nturn of “a person to another State where there are substantial \ngrounds for believing that he would be in danger of being \nsubjected to torture.” Convention Against Torture and Other \nCruel, Inhuman or Degrading Treatment or Punishment art. \n3(1), Dec. 10, 1984, S. Treaty Doc. No. 100‐20 (1990), 1465 \nU.N.T.S. 85. Federal regulations define torture as requiring \n“the consent or acquiescence of a public oﬃcial.” 8 C.F.R \n§ 1208.18(a)(1). Immigration judges must withhold or defer \nremoval if an applicant demonstrates that “it is more likely \nthan not that he or she would be tortured if removed.” 8 \nC.F.R. § 1208.16(c)(2). We have explained that “more likely \nthan not” means that there is a “substantial risk” that the alien \nwill be tortured. Rodriguez‐Molinero v. Lynch, 808 F.3d 1134, \n1135–36 (7th Cir. 2015); see also Perez‐Montes v. Sessions, 880 \nF.3d 849, 850 (7th Cir. 2018). \n\fNo. 17‐1689 11 \n\n Ruderman argues that the immigration judge both misun‐\nderstood and misapplied the “substantial risk” standard. But \nthere is no evidence of the former; the immigration judge \ncited our decision in Rodriguez‐Molinero and proceeded to an‐\nalyze whether there was a substantial risk that Ruderman \nwould be subject to torture inflicted by or with the consent of \na public oﬃcial if he returned to Belarus. See 8 C.F.R. \n§ 1208.18(a)(1)–(2). And Ruderman fails to establish the latter. \nWe review the Board’s conclusion that there was no substan‐\ntial risk of torture under the “highly deferential substantial \nevidence test,” which mandates denying the petition unless \n“the record evidence compels a contrary conclusion.” Lopez v. \nLynch, 810 F.3d 484, 492 (7th Cir. 2016) (citation omitted). \n The record evidence does not compel a contrary conclu‐\nsion. To be sure, certain findings from the immigration judge \ngive us pause. For one, the judge concluded that there was no \nsubstantial risk of torture for Jews in Belarus because, despite \n“widespread anti‐Semitism in Belarus,” incidents targeting \nJews have been declining. While it is true that the raw number \nof anti‐Jewish incidents in Belarus has declined, so has the \nJewish population. In this context, an absolute decrease in in‐\ncidents does not necessary equate to a relative increase in \nsafety for any individual. Nor does the evidence of Ruder‐\nman’s mother’s safe travel to and from Belarus mean that \nRuderman will be equally safe. His mother has a Christian \nname that is not associated with her late husband, whereas \nRuderman’s patronymic clearly signals that he is both Jewish \nand the son of a known political activist whom the KGB may \nhave tortured and killed. But on the other hand, there is evi‐\ndence that Ruderman became less susceptible to physical at‐\ntacks as he grew and became better able to defend himself, \nthat no one in his family has been threatened in Belarus, and \n\f12 No. 17‐1689 \n\nthat he lived in Belarus for eight years following his father’s \ndeath without any threat of torture on account of his relation‐\nship to his father. Considering all the evidence, the record \ndoes not compel the conclusion that there is a substantial risk \nthat Ruderman would be tortured if he returned to Belarus. \n * * * \n Ruderman’s petition for review is GRANTED.\n[END_CASE]", "role": "user" } ]
4,585,618	UNITED STATES of America, Plaintiff-Appellee, v. Scott BOOKS, Defendant-Appellant.	United States v. Scott Books	2019-01-29	17-3493	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Bauer, Brennan, Scudder", "parties": "", "opinions": [{"author": "SCUDDER, Circuit Judge", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-3493\nUNITED STATES OF AMERICA,\n Plaintiff-Appellee,\n v.\n\nSCOTT BOOKS,\n Defendant-Appellant.\n ____________________\n\n Appeal from the United States District Court for the\n Central District of Illinois.\n No. 1:16-cr-10037 — Michael M. Mihm, Judge.\n ____________________\n\n ARGUED NOVEMBER 9, 2018 — DECIDED JANUARY 29, 2019\n ____________________\n\n Before BAUER, BRENNAN, and SCUDDER, Circuit Judges.\n SCUDDER, Circuit Judge. On trial for bank robbery, Scott\nBooks chose not to testify in his own defense and was found\nguilty and sentenced to 180 months’ imprisonment. He now\nchallenges two pretrial decisions by the district court. The\nfirst allowed eyewitness testimony at trial from the two bank\ntellers that Books alleged based their identification of him as\nthe robber not on personal knowledge, but rather on infor-\nmation improperly supplied by a police detective. The sec-\n\f2 No. 17-3493\n\nond ruling would have allowed the government, had Books\nchosen to testify at trial, to impeach him with physical evi-\ndence directly tying him to the robbery—evidence the police\nlearned of (and then recovered) only as a result of a confes-\nsion the district court separately had determined was unlaw-\nfully coerced.\n Neither challenge succeeds. The district court did not err\nin finding the eyewitness identifications reflected the tellers’\nfirsthand knowledge of Books, and thus allowing their tes-\ntimony at trial was entirely proper. Nor can we conclude\nthat the district court’s conditional impeachment ruling,\neven if wrong on the law, mandates reversal in light of the\noverwhelming weight of evidence against Books. So we\naﬃrm.\n I\n A\n On July 28, 2016 a man robbed the Land of Lincoln Credit\nUnion in Normal, Illinois. Dressed in a black hooded sweat-\nshirt, wearing a mask and neon gloves, the robber ap-\nproached the counter and, while motioning toward the\ndrawer with what appeared to be a black handgun, de-\nmanded “all the money.” The robbery lasted all but 20 sec-\nonds, with the oﬀender making oﬀ with $18,000 and fleeing\nin a Buick SUV.\n Two tellers recognized the robber’s voice and manner-\nisms and immediately identified him as Scott Books—a long-\ntime customer of the credit union. Holly Bateman told her\nsupervisor (and later the police) she was 99% certain Books\nwas the robber because she had interacted with him on at\nleast six prior occasions. The second teller, Susan Phelps,\n\fNo. 17-3493 3\n\nagreed with Bateman’s identification of Books as the oﬀend-\ner. A third witness, James Teidman, was driving by the bank\nwhen he saw the robber running from the bank with a gun,\nonly then to speed away in a Buick SUV.\n The police arrested Books the next day. After waiving his\nMiranda rights and agreeing to an interview, he confessed to\nthe robbery, while also telling the police where they could\nfind the gloves, clothing, and fake gun he used. The police\nfound these items exactly where Books described, and in\ntime a grand jury indicted Books for the robbery.\n B\n The district court held a series of pretrial hearings to de-\ntermine the admissibility of evidence contested by Books.\nThree of those rulings are significant to this appeal.\n First, the district court suppressed Books’s confession,\nfinding that the police oﬃcers overstepped and overcame\nBooks’s will by threatening to arrest his wife and take his\nchildren into custody if he did not own up to his role in the\nrobbery—rendering the confession involuntary. The court\nsuppressed both the confession and its physical fruits—\nspecifically, the clothing, gloves, and fake gun the police re-\ncovered based upon Books telling them where to look.\n Second, the district court denied Books’s motion to pre-\nvent the two bank tellers (Bateman and Phelps) from testify-\ning at trial. Books had sought to exclude their testimony on\nthe basis that the police detective who investigated the rob-\nbery improperly tainted their identifications when, a day af-\nter the robbery, he allegedly told both witnesses that Books\nhad confessed to the crime. The government disagreed, tak-\ning the position that the detective in no way revealed\n\f4 No. 17-3493\n\nBooks’s confession and thus in no way influenced the tellers’\nclear and definitive identification of Books as the robber. The\ndistrict court held a hearing, received testimony from the\ntellers and detective, and found it “clear from th[e] record\nthat [both tellers] have a truly independent source of identi-\nfication of [Books] other than any suggestion that would\nhave been put in their mind by the oﬃcer.” Accordingly, the\ndistrict court permitted the tellers to testify at trial.\n Third, the district court considered but reserved defini-\ntively ruling until trial on the government’s motion for per-\nmission to impeach Books with the fruits of his confession in\nthe event he chose to testify. Books opposed the motion and\nurged the district court to hold that the price for the police\nunlawfully coercing his confession should be the suppres-\nsion of all incriminating evidence (his admission and the\nphysical fruits) for all purposes, including impeachment. The\ndistrict court said it was inclined to allow some impeach-\nment but reserved a final ruling unless and until Books\nchose to testify and the government sought to impeach him\non cross-examination with his prior statements describing\nthe whereabouts of the clothing he wore during the robbery.\nThe district court cast its ruling this way: “[I]f and when we\nget to that point [of the trial], any questions that the gov-\nernment wished to ask the defendant if he testifies, I would\nhave to hear exactly what the questions are outside the pres-\nence of the jury so there could be specific objections.”\n\fNo. 17-3493 5\n\n C\n In the end, Books chose not to testify at trial, and thus\nneither his coerced confession nor the resulting physical\nfruits came into evidence. The government nonetheless pre-\nsented a strong case, including testimony from these wit-\nnesses:\n  Bank teller Holly Bateman identified Books\n as the robber. She testified that she knew\n Books from her work at the credit union\n and immediately recognized him as the\n robber—so much so that she almost said\n “Scott, can you remove your mask?”\n Bateman told the jury that she “instantly”\n recognized Books’s voice and likewise\n knew it was Books from his distinct\n mannerisms. Asked at trial about her\n confidence level that Books committed the\n robbery, Bateman testified that she was\n 110% sure because the incident had\n replayed over and over in her mind.\n  Susan Phelps, the second bank teller, also\n identified Books as the robber. While not as\n fast as Bateman to recognize Books during\n the robbery, Phelps testified she was confi-\n dent Books was the oﬀender based on his\n unique mannerisms, including his walk and\n jittery disposition.\n  Phillip Meyer, a friend and former cowork-\n er of Books, testified that he had received a\n text message from Books on the day of the\n\f6 No. 17-3493\n\n robbery or the day before asking, “I wonder\n what bank I should rob today?”\n  Todd Hogan, the bank’s vice president, tes-\n tified that he remembered teller Holly\n Bateman calling him immediately after the\n robbery to tell him she was 99% sure the\n robber was Books. Hogan also explained\n that Books’s business account had been\n flagged in the bank’s system on multiple\n occasions due to attempts to deposit checks\n backed by insuﬃcient funds.\n  James Teidman testified that he was driving\n by the credit union when the robbery oc-\n curred and saw a Buick SUV, the same\n model later tracked to Books’s residence,\n flee the scene.\n While Books chose not to testify, his counsel vigorously\ncross-examined the government’s witnesses. When it came\nto tellers Bateman and Phelps, defense counsel challenged\ntheir recollection of the robbery, probed the reliability of\ntheir identifications of Books and the getaway car, and exam-\nined their memory of the robber’s dress, voice, and manner-\nisms—all in an eﬀort to question their overall confidence\nthat Books was the oﬀender. At no point during the trial did\nBooks’s counsel or the government refer to Books’s confes-\nsion or to the police detective’s (allegedly impermissible) in-\nteraction with the two tellers. The jury returned a guilty ver-\ndict.\n\fNo. 17-3493 7\n\n II\n A\n Books challenges the district court’s pretrial ruling deny-\ning his motion to preclude the two tellers from testifying at\ntrial on the basis that the police detective allegedly tainted\ntheir eyewitness identifications by telling them that he had\nconfessed to the robbery. This misconduct, Books contends,\nviolated his Fifth Amendment right against self-\nincrimination. He further argues that the district court’s pre-\ntrial ruling too circumscribed his Sixth Amendment right to\ncross-examine the tellers at trial. The facts belie both conten-\ntions.\n While all agree that our review of legal issues is de novo,\nthe parties dispute the legal standard that governs the ad-\nmission at trial of the bank tellers’ identification testimony.\nBooks invites us to follow Kastigar v. United States, and\nthereby place the burden on the government to show that\nthe tellers’ testimony was “derived from legitimate inde-\npendent sources” and, as a result, not unduly influenced by\nthe police detective. See 406 U.S. 441, 461–62 (1972). The\ngovernment, on the other hand, urges us to read Kastigar as\nmore narrowly applying to, and not beyond, the setting that\ngave rise to its holding—circumstances in which a witness\ntestifies pursuant to a grant of immunity. See id. The gov-\nernment instead asks us to employ the less onerous, due-\nprocess based standard found in cases like Neil v. Biggers,\n409 U.S. 188 (1972), where the focus is more simply on the\nreliability of in-court identification testimony with the de-\nfendant (not the government) bearing the initial burden of\nshowing that the government did something to taint the\nidentification. See also, e.g., United States v. L’Allier, 838 F.2d\n\f8 No. 17-3493\n\n234, 239 (7th Cir. 1988) (explaining that the defendant bears\nthe burden of showing that the challenged identification was\nunduly suggestive).\n The proper reach and application of the Kastigar rule has\nnot gone unnoticed by other courts. See, e.g., United States v.\nAllen, 864 F.3d 63, 90 n.121 (2d Cir. 2017) (“[I]t is not clear\nwhether all involuntary statements or all compelled\nstatements should be subjected to the strong medicine\nprescribed in Kastigar, or whether some other doctrine\nshould govern in certain circumstances.”); United States v.\nJones, 542 F.2d 186, 199 n.24 (4th Cir. 1976) (discussing\nuncertainty over Kastigar’s application to coerced\nconfessions).\n We have not had a case requiring us to choose sides, and\nthis appeal does not either. We can comfortably resolve the\ncase on narrower grounds, because under either Kastigar or\nBiggers (or hybrids of either standard), the evidence was\nmore than suﬃcient to show that the two tellers, Bateman\nand Phelps, identified Books based on their prior dealings\nand first-hand familiarity with him, without regard to any\ninformation supplied by the police detective. At no point did\nthe tellers, and most especially Holly Bateman, ever waiver\nin their confidence that Books was the robber. So, whether\nassessed under Kastigar or a lesser standard, Books’s chal-\nlenge to the district court’s admission of the tellers’ testimo-\nny cannot succeed.\n Books fares no better when contending that the district\ncourt’s ruling on the tellers’ testimony also violated the Sixth\nAmendment by limiting his ability to confront and cross-\nexamine these witnesses. A fulsome cross-examination,\nBooks posits, would have entailed questioning how the wit-\n\fNo. 17-3493 9\n\nnesses arrived at their identification testimony—a line of\nquestioning, as Books sees it, that necessarily would have\nexposed that the police improperly told both tellers that he\nhad confessed to the robbery. We cannot agree, as Books’s\nposition misfires on the law and facts.\n A defendant’s Sixth Amendment right to confront wit-\nnesses is not absolute, but instead subject to reasonable limi-\ntations imposed by the district court. See United States v.\nSaunders, 166 F.3d 907, 918 (7th Cir. 1999) (citing Delaware v.\nVan Arsdall, 475 U.S. 673, 679 (1986)). The limitation Books\nchallenges came from the district court’s pretrial ruling sup-\npressing his coerced confession. This ruling favored Books\nand, beyond precluding the government from using the con-\nfession as evidence, naturally limited how he would ap-\nproach cross-examining government witnesses, for he right-\nly wanted to avoid the jury learning that he had confessed to\nthe robbery. But accepting a necessary and proper limitation\non cross-examination does not, without more, run afoul of\nthe Confrontation Clause, especially where, as here, Books\nwas able as a practical matter to adequately, and indeed vig-\norously, cross-examine both bank tellers. See United States v.\nSasson, 62 F.3d 874, 882 (7th Cir. 1995) (explaining that the\nConfrontation Clause “guarantees only an opportunity for a\nthorough and eﬀective cross-examination, ‘not cross-\nexamination that is eﬀective in whatever way, and to what-\never extent, the defense might wish’”) (quoting Delaware v.\nFensterer, 474 U.S. 15, 20 (1985)). And Books was able to do\nso without ever insinuating, much less revealing, that he had\nconfessed to the robbery. The Confrontation Clause required\nno more.\n\f10 No. 17-3493\n\n B\n This brings us to Books’s Fifth Amendment challenge to\nthe district court’s pretrial impeachment ruling. Books ar-\ngues that the ruling—allowing the government, if he chose\nto testify, to cross-examine him with the fruits of his coerced\nconfession—created an unconstitutional predicament and\ncatch-22: he was forced to either forfeit his right to testify in\nhis own defense, or, if he did take the stand, face a surefire\nconviction once the government impeached him with the\nfruits of his confession.\n Books may be right in his contention that the district\ncourt, even though reserving a final ruling until after seeing\nwhether he chose to testify and what questions the govern-\nment wanted to ask on cross-examination, committed legal\nerror in concluding, however conditionally, that some im-\npeachment with the physical fruits of a coerced confession\nmay be permissible. While that proposition is not settled in\nthe law, Books’s position is not without some support. See,\ne.g., Chavez v. Martinez, 538 U.S. 760, 769 (2003) (plurality\nopinion) (emphasizing, albeit in dicta, that “those subjected\nto coercive police interrogations have an automatic protection\nfrom the use of their involuntary statements (or evidence de-\nrived from their statements) in any subsequent criminal tri-\nal”).\n The government urges us to avoid answering this ques-\ntion. Pointing to Luce v. United States, 469 U.S. 38 (1984), the\ngovernment says that Books waived any challenge to the dis-\ntrict court’s ruling by not testifying at trial. The govern-\nment’s position finds substantial, if not dispositive, support\nin our decision in United States v. Wilson, 307 F.3d 596, 600–\n01 (7th Cir. 2002), where the defendant chose not to testify at\n\fNo. 17-3493 11\n\ntrial and, as a result, we declined to review the merits of his\nclaim that a pretrial ruling on the admissibility of particular\nimpeachment testimony violated his Fifth Amendment right\nto remain silent.\n The whole point of the rule announced in Luce, which we\nextended to the domain of a Fifth Amendment claim in\nWilson, is that courts should refrain from reviewing claims\nthat a particular line of cross-examination would have\nviolated a defendant’s right against self-incrimination when\nthe defendant in fact never testified at trial and thus never\nunderwent cross-examination. Any other course, the\nreasoning runs, would require too much speculation on how\nthe testimony and related questioning would have played\nout at trial. See Wilson, 307 F.3d at 600–01.\n Even if we agreed with Books that Wilson should be read\nmore narrowly, our ensuing reasoning would not travel a\npath that resulted in an award of relief. Both parties agree\nthat the ultimate merits of Books’s Fifth Amendment claim is\nsubject to harmless error review. Indeed, the doctrine of\nharmless error finds straightforward application on the evi-\ndence presented at Books’s trial.\n Not every constitutional error automatically requires the\nreversal of a defendant’s conviction. Instead, as the Supreme\nCourt has explained, “if the government can show ‘beyond a\nreasonable doubt that the error complained of did not con-\ntribute to the verdict obtained,’ … then the error is deemed\nharmless and the defendant is not entitled to reversal.”\nWeaver v. Massachusetts, 137 S. Ct. 1899, 1907 (2017) (quoting\nChapman v. California, 386 U.S. 18, 24 (1967)). This precise\nstandard would apply if Books had testified and was sub-\njected to certain impermissible impeachment. See Arizona v.\n\f12 No. 17-3493\n\nFulminante, 499 U.S. 279, 306 (1991) (holding that the doc-\ntrine of harmless error applies to the violation of the defend-\nant’s Fifth Amendment right against self-incrimination\nthrough the admission at trial of an involuntary confession).\nAnd the same analysis would apply if we accept Books’s\ncontention that the district court’s ruling constructively fore-\nclosed his decision to take the stand. See Ortega v. O’Leary,\n843 F.2d 258, 262 (7th Cir. 1988) (applying harmless error\nanalysis to the denial of the right to testify); Alicea v. Ganon,\n675 F.2d 913, 925 (7th Cir. 1982) (reaching the same conclu-\nsion).\n In reviewing the trial record, our obligation is to deter-\nmine whether any error was harmless beyond a reasonable\ndoubt, and we do so in no small part by evaluating the over-\nall strength of the prosecution’s case. See Jones v. Basinger,\n635 F.3d 1030, 1052 (7th Cir. 2011). On this front, Books faces\nan insurmountable burden because the evidence against him\nat trial was overwhelming: the eyewitness testimony of the\ntwo bank tellers, the text message to a friend indicating his\ndesire to rob a bank, the identification of his car as the geta-\nway vehicle, and the testimony of over a dozen other wit-\nnesses—all in the broader context of his financial diﬃculties\nand prior disputes with the Land of Lincoln Credit Union.\nOn this record, any error in the district court’s pretrial ruling\non the scope of permissible impeachment was harmless be-\nyond a reasonable doubt.\n III\n Two other matters warrant attention. First, relying on\nBrooks v. Tennessee, 406 U.S. 605 (1972), Books argues that the\ndistrict court’s impeachment ruling deprived him of the\n“guiding hand of counsel” by undermining his attorney’s\n\fNo. 17-3493 13\n\nability to make informed and independent decisions about\nthe best trial strategy, including whether Books should take\nthe stand in his own defense. Id. at 612. But Brooks provides\nno refuge, for there the Supreme Court considered a state\nstatute that required a defendant, if he chose to put on a de-\nfense at trial, to be the first defense witness to testify, forcing\na preemptive decision to take the stand absent “a full survey\nof all the case.” Id. at 608. Books, in contrast, faced only the\nuncertainty that often accompanies an unfavorable (and\nperhaps even incorrect) pretrial ruling on the scope of im-\npeachment. Whatever limitations this may have imposed on\nthe strategic choices of Books’s defense, they were far afield\nfrom the extreme circumstances defense counsel confronted\nin Brooks.\n Finally, we reject Books’s invitation to overturn his con-\nviction on the basis of cumulative error. We have reviewed\nthe record carefully and cannot get anywhere near conclud-\ning that there are “multiple errors [that] so infected the jury’s\ndeliberation that they denied the petitioner a fundamentally\nfair trial.” United States v. Allen, 269 F.3d 842, 847 (7th Cir.\n2001). The bottom line is that Books’s cumulative error ar-\ngument cannot overcome the overwhelming evidence pre-\nsented against him at trial.\n For these reasons, we AFFIRM.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4362871/", "author_raw": "SCUDDER, Circuit Judge"}]}	BAUER	BRENNAN	SCUDDER	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4585618/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Scott BOOKS, Defendant-Appellant.\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-29\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-3493\nUNITED STATES OF AMERICA,\n Plaintiff-Appellee,\n v.\n\nSCOTT BOOKS,\n Defendant-Appellant.\n ____________________\n\n Appeal from the United States District Court for the\n Central District of Illinois.\n No. 1:16-cr-10037 — Michael M. Mihm, Judge.\n ____________________\n\n ARGUED NOVEMBER 9, 2018 — DECIDED JANUARY 29, 2019\n ____________________\n\n Before BAUER, BRENNAN, and SCUDDER, Circuit Judges.\n SCUDDER, Circuit Judge. On trial for bank robbery, Scott\nBooks chose not to testify in his own defense and was found\nguilty and sentenced to 180 months’ imprisonment. He now\nchallenges two pretrial decisions by the district court. The\nfirst allowed eyewitness testimony at trial from the two bank\ntellers that Books alleged based their identification of him as\nthe robber not on personal knowledge, but rather on infor-\nmation improperly supplied by a police detective. The sec-\n\f2 No. 17-3493\n\nond ruling would have allowed the government, had Books\nchosen to testify at trial, to impeach him with physical evi-\ndence directly tying him to the robbery—evidence the police\nlearned of (and then recovered) only as a result of a confes-\nsion the district court separately had determined was unlaw-\nfully coerced.\n Neither challenge succeeds. The district court did not err\nin finding the eyewitness identifications reflected the tellers’\nfirsthand knowledge of Books, and thus allowing their tes-\ntimony at trial was entirely proper. Nor can we conclude\nthat the district court’s conditional impeachment ruling,\neven if wrong on the law, mandates reversal in light of the\noverwhelming weight of evidence against Books. So we\naﬃrm.\n I\n A\n On July 28, 2016 a man robbed the Land of Lincoln Credit\nUnion in Normal, Illinois. Dressed in a black hooded sweat-\nshirt, wearing a mask and neon gloves, the robber ap-\nproached the counter and, while motioning toward the\ndrawer with what appeared to be a black handgun, de-\nmanded “all the money.” The robbery lasted all but 20 sec-\nonds, with the oﬀender making oﬀ with $18,000 and fleeing\nin a Buick SUV.\n Two tellers recognized the robber’s voice and manner-\nisms and immediately identified him as Scott Books—a long-\ntime customer of the credit union. Holly Bateman told her\nsupervisor (and later the police) she was 99% certain Books\nwas the robber because she had interacted with him on at\nleast six prior occasions. The second teller, Susan Phelps,\n\fNo. 17-3493 3\n\nagreed with Bateman’s identification of Books as the oﬀend-\ner. A third witness, James Teidman, was driving by the bank\nwhen he saw the robber running from the bank with a gun,\nonly then to speed away in a Buick SUV.\n The police arrested Books the next day. After waiving his\nMiranda rights and agreeing to an interview, he confessed to\nthe robbery, while also telling the police where they could\nfind the gloves, clothing, and fake gun he used. The police\nfound these items exactly where Books described, and in\ntime a grand jury indicted Books for the robbery.\n B\n The district court held a series of pretrial hearings to de-\ntermine the admissibility of evidence contested by Books.\nThree of those rulings are significant to this appeal.\n First, the district court suppressed Books’s confession,\nfinding that the police oﬃcers overstepped and overcame\nBooks’s will by threatening to arrest his wife and take his\nchildren into custody if he did not own up to his role in the\nrobbery—rendering the confession involuntary. The court\nsuppressed both the confession and its physical fruits—\nspecifically, the clothing, gloves, and fake gun the police re-\ncovered based upon Books telling them where to look.\n Second, the district court denied Books’s motion to pre-\nvent the two bank tellers (Bateman and Phelps) from testify-\ning at trial. Books had sought to exclude their testimony on\nthe basis that the police detective who investigated the rob-\nbery improperly tainted their identifications when, a day af-\nter the robbery, he allegedly told both witnesses that Books\nhad confessed to the crime. The government disagreed, tak-\ning the position that the detective in no way revealed\n\f4 No. 17-3493\n\nBooks’s confession and thus in no way influenced the tellers’\nclear and definitive identification of Books as the robber. The\ndistrict court held a hearing, received testimony from the\ntellers and detective, and found it “clear from th[e] record\nthat [both tellers] have a truly independent source of identi-\nfication of [Books] other than any suggestion that would\nhave been put in their mind by the oﬃcer.” Accordingly, the\ndistrict court permitted the tellers to testify at trial.\n Third, the district court considered but reserved defini-\ntively ruling until trial on the government’s motion for per-\nmission to impeach Books with the fruits of his confession in\nthe event he chose to testify. Books opposed the motion and\nurged the district court to hold that the price for the police\nunlawfully coercing his confession should be the suppres-\nsion of all incriminating evidence (his admission and the\nphysical fruits) for all purposes, including impeachment. The\ndistrict court said it was inclined to allow some impeach-\nment but reserved a final ruling unless and until Books\nchose to testify and the government sought to impeach him\non cross-examination with his prior statements describing\nthe whereabouts of the clothing he wore during the robbery.\nThe district court cast its ruling this way: “[I]f and when we\nget to that point [of the trial], any questions that the gov-\nernment wished to ask the defendant if he testifies, I would\nhave to hear exactly what the questions are outside the pres-\nence of the jury so there could be specific objections.”\n\fNo. 17-3493 5\n\n C\n In the end, Books chose not to testify at trial, and thus\nneither his coerced confession nor the resulting physical\nfruits came into evidence. The government nonetheless pre-\nsented a strong case, including testimony from these wit-\nnesses:\n  Bank teller Holly Bateman identified Books\n as the robber. She testified that she knew\n Books from her work at the credit union\n and immediately recognized him as the\n robber—so much so that she almost said\n “Scott, can you remove your mask?”\n Bateman told the jury that she “instantly”\n recognized Books’s voice and likewise\n knew it was Books from his distinct\n mannerisms. Asked at trial about her\n confidence level that Books committed the\n robbery, Bateman testified that she was\n 110% sure because the incident had\n replayed over and over in her mind.\n  Susan Phelps, the second bank teller, also\n identified Books as the robber. While not as\n fast as Bateman to recognize Books during\n the robbery, Phelps testified she was confi-\n dent Books was the oﬀender based on his\n unique mannerisms, including his walk and\n jittery disposition.\n  Phillip Meyer, a friend and former cowork-\n er of Books, testified that he had received a\n text message from Books on the day of the\n\f6 No. 17-3493\n\n robbery or the day before asking, “I wonder\n what bank I should rob today?”\n  Todd Hogan, the bank’s vice president, tes-\n tified that he remembered teller Holly\n Bateman calling him immediately after the\n robbery to tell him she was 99% sure the\n robber was Books. Hogan also explained\n that Books’s business account had been\n flagged in the bank’s system on multiple\n occasions due to attempts to deposit checks\n backed by insuﬃcient funds.\n  James Teidman testified that he was driving\n by the credit union when the robbery oc-\n curred and saw a Buick SUV, the same\n model later tracked to Books’s residence,\n flee the scene.\n While Books chose not to testify, his counsel vigorously\ncross-examined the government’s witnesses. When it came\nto tellers Bateman and Phelps, defense counsel challenged\ntheir recollection of the robbery, probed the reliability of\ntheir identifications of Books and the getaway car, and exam-\nined their memory of the robber’s dress, voice, and manner-\nisms—all in an eﬀort to question their overall confidence\nthat Books was the oﬀender. At no point during the trial did\nBooks’s counsel or the government refer to Books’s confes-\nsion or to the police detective’s (allegedly impermissible) in-\nteraction with the two tellers. The jury returned a guilty ver-\ndict.\n\fNo. 17-3493 7\n\n II\n A\n Books challenges the district court’s pretrial ruling deny-\ning his motion to preclude the two tellers from testifying at\ntrial on the basis that the police detective allegedly tainted\ntheir eyewitness identifications by telling them that he had\nconfessed to the robbery. This misconduct, Books contends,\nviolated his Fifth Amendment right against self-\nincrimination. He further argues that the district court’s pre-\ntrial ruling too circumscribed his Sixth Amendment right to\ncross-examine the tellers at trial. The facts belie both conten-\ntions.\n While all agree that our review of legal issues is de novo,\nthe parties dispute the legal standard that governs the ad-\nmission at trial of the bank tellers’ identification testimony.\nBooks invites us to follow Kastigar v. United States, and\nthereby place the burden on the government to show that\nthe tellers’ testimony was “derived from legitimate inde-\npendent sources” and, as a result, not unduly influenced by\nthe police detective. See 406 U.S. 441, 461–62 (1972). The\ngovernment, on the other hand, urges us to read Kastigar as\nmore narrowly applying to, and not beyond, the setting that\ngave rise to its holding—circumstances in which a witness\ntestifies pursuant to a grant of immunity. See id. The gov-\nernment instead asks us to employ the less onerous, due-\nprocess based standard found in cases like Neil v. Biggers,\n409 U.S. 188 (1972), where the focus is more simply on the\nreliability of in-court identification testimony with the de-\nfendant (not the government) bearing the initial burden of\nshowing that the government did something to taint the\nidentification. See also, e.g., United States v. L’Allier, 838 F.2d\n\f8 No. 17-3493\n\n234, 239 (7th Cir. 1988) (explaining that the defendant bears\nthe burden of showing that the challenged identification was\nunduly suggestive).\n The proper reach and application of the Kastigar rule has\nnot gone unnoticed by other courts. See, e.g., United States v.\nAllen, 864 F.3d 63, 90 n.121 (2d Cir. 2017) (“[I]t is not clear\nwhether all involuntary statements or all compelled\nstatements should be subjected to the strong medicine\nprescribed in Kastigar, or whether some other doctrine\nshould govern in certain circumstances.”); United States v.\nJones, 542 F.2d 186, 199 n.24 (4th Cir. 1976) (discussing\nuncertainty over Kastigar’s application to coerced\nconfessions).\n We have not had a case requiring us to choose sides, and\nthis appeal does not either. We can comfortably resolve the\ncase on narrower grounds, because under either Kastigar or\nBiggers (or hybrids of either standard), the evidence was\nmore than suﬃcient to show that the two tellers, Bateman\nand Phelps, identified Books based on their prior dealings\nand first-hand familiarity with him, without regard to any\ninformation supplied by the police detective. At no point did\nthe tellers, and most especially Holly Bateman, ever waiver\nin their confidence that Books was the robber. So, whether\nassessed under Kastigar or a lesser standard, Books’s chal-\nlenge to the district court’s admission of the tellers’ testimo-\nny cannot succeed.\n Books fares no better when contending that the district\ncourt’s ruling on the tellers’ testimony also violated the Sixth\nAmendment by limiting his ability to confront and cross-\nexamine these witnesses. A fulsome cross-examination,\nBooks posits, would have entailed questioning how the wit-\n\fNo. 17-3493 9\n\nnesses arrived at their identification testimony—a line of\nquestioning, as Books sees it, that necessarily would have\nexposed that the police improperly told both tellers that he\nhad confessed to the robbery. We cannot agree, as Books’s\nposition misfires on the law and facts.\n A defendant’s Sixth Amendment right to confront wit-\nnesses is not absolute, but instead subject to reasonable limi-\ntations imposed by the district court. See United States v.\nSaunders, 166 F.3d 907, 918 (7th Cir. 1999) (citing Delaware v.\nVan Arsdall, 475 U.S. 673, 679 (1986)). The limitation Books\nchallenges came from the district court’s pretrial ruling sup-\npressing his coerced confession. This ruling favored Books\nand, beyond precluding the government from using the con-\nfession as evidence, naturally limited how he would ap-\nproach cross-examining government witnesses, for he right-\nly wanted to avoid the jury learning that he had confessed to\nthe robbery. But accepting a necessary and proper limitation\non cross-examination does not, without more, run afoul of\nthe Confrontation Clause, especially where, as here, Books\nwas able as a practical matter to adequately, and indeed vig-\norously, cross-examine both bank tellers. See United States v.\nSasson, 62 F.3d 874, 882 (7th Cir. 1995) (explaining that the\nConfrontation Clause “guarantees only an opportunity for a\nthorough and eﬀective cross-examination, ‘not cross-\nexamination that is eﬀective in whatever way, and to what-\never extent, the defense might wish’”) (quoting Delaware v.\nFensterer, 474 U.S. 15, 20 (1985)). And Books was able to do\nso without ever insinuating, much less revealing, that he had\nconfessed to the robbery. The Confrontation Clause required\nno more.\n\f10 No. 17-3493\n\n B\n This brings us to Books’s Fifth Amendment challenge to\nthe district court’s pretrial impeachment ruling. Books ar-\ngues that the ruling—allowing the government, if he chose\nto testify, to cross-examine him with the fruits of his coerced\nconfession—created an unconstitutional predicament and\ncatch-22: he was forced to either forfeit his right to testify in\nhis own defense, or, if he did take the stand, face a surefire\nconviction once the government impeached him with the\nfruits of his confession.\n Books may be right in his contention that the district\ncourt, even though reserving a final ruling until after seeing\nwhether he chose to testify and what questions the govern-\nment wanted to ask on cross-examination, committed legal\nerror in concluding, however conditionally, that some im-\npeachment with the physical fruits of a coerced confession\nmay be permissible. While that proposition is not settled in\nthe law, Books’s position is not without some support. See,\ne.g., Chavez v. Martinez, 538 U.S. 760, 769 (2003) (plurality\nopinion) (emphasizing, albeit in dicta, that “those subjected\nto coercive police interrogations have an automatic protection\nfrom the use of their involuntary statements (or evidence de-\nrived from their statements) in any subsequent criminal tri-\nal”).\n The government urges us to avoid answering this ques-\ntion. Pointing to Luce v. United States, 469 U.S. 38 (1984), the\ngovernment says that Books waived any challenge to the dis-\ntrict court’s ruling by not testifying at trial. The govern-\nment’s position finds substantial, if not dispositive, support\nin our decision in United States v. Wilson, 307 F.3d 596, 600–\n01 (7th Cir. 2002), where the defendant chose not to testify at\n\fNo. 17-3493 11\n\ntrial and, as a result, we declined to review the merits of his\nclaim that a pretrial ruling on the admissibility of particular\nimpeachment testimony violated his Fifth Amendment right\nto remain silent.\n The whole point of the rule announced in Luce, which we\nextended to the domain of a Fifth Amendment claim in\nWilson, is that courts should refrain from reviewing claims\nthat a particular line of cross-examination would have\nviolated a defendant’s right against self-incrimination when\nthe defendant in fact never testified at trial and thus never\nunderwent cross-examination. Any other course, the\nreasoning runs, would require too much speculation on how\nthe testimony and related questioning would have played\nout at trial. See Wilson, 307 F.3d at 600–01.\n Even if we agreed with Books that Wilson should be read\nmore narrowly, our ensuing reasoning would not travel a\npath that resulted in an award of relief. Both parties agree\nthat the ultimate merits of Books’s Fifth Amendment claim is\nsubject to harmless error review. Indeed, the doctrine of\nharmless error finds straightforward application on the evi-\ndence presented at Books’s trial.\n Not every constitutional error automatically requires the\nreversal of a defendant’s conviction. Instead, as the Supreme\nCourt has explained, “if the government can show ‘beyond a\nreasonable doubt that the error complained of did not con-\ntribute to the verdict obtained,’ … then the error is deemed\nharmless and the defendant is not entitled to reversal.”\nWeaver v. Massachusetts, 137 S. Ct. 1899, 1907 (2017) (quoting\nChapman v. California, 386 U.S. 18, 24 (1967)). This precise\nstandard would apply if Books had testified and was sub-\njected to certain impermissible impeachment. See Arizona v.\n\f12 No. 17-3493\n\nFulminante, 499 U.S. 279, 306 (1991) (holding that the doc-\ntrine of harmless error applies to the violation of the defend-\nant’s Fifth Amendment right against self-incrimination\nthrough the admission at trial of an involuntary confession).\nAnd the same analysis would apply if we accept Books’s\ncontention that the district court’s ruling constructively fore-\nclosed his decision to take the stand. See Ortega v. O’Leary,\n843 F.2d 258, 262 (7th Cir. 1988) (applying harmless error\nanalysis to the denial of the right to testify); Alicea v. Ganon,\n675 F.2d 913, 925 (7th Cir. 1982) (reaching the same conclu-\nsion).\n In reviewing the trial record, our obligation is to deter-\nmine whether any error was harmless beyond a reasonable\ndoubt, and we do so in no small part by evaluating the over-\nall strength of the prosecution’s case. See Jones v. Basinger,\n635 F.3d 1030, 1052 (7th Cir. 2011). On this front, Books faces\nan insurmountable burden because the evidence against him\nat trial was overwhelming: the eyewitness testimony of the\ntwo bank tellers, the text message to a friend indicating his\ndesire to rob a bank, the identification of his car as the geta-\nway vehicle, and the testimony of over a dozen other wit-\nnesses—all in the broader context of his financial diﬃculties\nand prior disputes with the Land of Lincoln Credit Union.\nOn this record, any error in the district court’s pretrial ruling\non the scope of permissible impeachment was harmless be-\nyond a reasonable doubt.\n III\n Two other matters warrant attention. First, relying on\nBrooks v. Tennessee, 406 U.S. 605 (1972), Books argues that the\ndistrict court’s impeachment ruling deprived him of the\n“guiding hand of counsel” by undermining his attorney’s\n\fNo. 17-3493 13\n\nability to make informed and independent decisions about\nthe best trial strategy, including whether Books should take\nthe stand in his own defense. Id. at 612. But Brooks provides\nno refuge, for there the Supreme Court considered a state\nstatute that required a defendant, if he chose to put on a de-\nfense at trial, to be the first defense witness to testify, forcing\na preemptive decision to take the stand absent “a full survey\nof all the case.” Id. at 608. Books, in contrast, faced only the\nuncertainty that often accompanies an unfavorable (and\nperhaps even incorrect) pretrial ruling on the scope of im-\npeachment. Whatever limitations this may have imposed on\nthe strategic choices of Books’s defense, they were far afield\nfrom the extreme circumstances defense counsel confronted\nin Brooks.\n Finally, we reject Books’s invitation to overturn his con-\nviction on the basis of cumulative error. We have reviewed\nthe record carefully and cannot get anywhere near conclud-\ning that there are “multiple errors [that] so infected the jury’s\ndeliberation that they denied the petitioner a fundamentally\nfair trial.” United States v. Allen, 269 F.3d 842, 847 (7th Cir.\n2001). The bottom line is that Books’s cumulative error ar-\ngument cannot overcome the overwhelming evidence pre-\nsented against him at trial.\n For these reasons, we AFFIRM.\n[END_CASE]", "role": "user" } ]
4,585,620		Bruce Giles v. Salvador Godinez	2019-01-29	15-3077	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before FLAUM, MANION, and ST. EVE, Circuit Judges.", "parties": "", "opinions": [{"author": "Daniel Anthony Manion", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 15-3077\nBRUCE GILES,\n Plaintiff-Appellant,\n v.\n\nSALVADOR A. GODINEZ, Acting Director, et al.,\n Defendants-Appellees.\n ____________________\n\n Appeal from the United States District Court for the\n Southern District of Illinois.\n No. 3:12-cv-00965 — J. Phil Gilbert, Judge.\n ____________________\n\n ARGUED NOVEMBER 8, 2018 — DECIDED JANUARY 29, 2019\n ____________________\n\n Before FLAUM, MANION, and ST. EVE, Circuit Judges.\n MANION, Circuit Judge. Bruce Giles is a prisoner in the cus-\ntody of the Illinois Department of Corrections (the “Depart-\nment”) who suﬀers from schizoaﬀective disorder. Giles filed\nthis action pro se under 42 U.S.C. § 1983 against several De-\npartment oﬃcials. He alleges the defendants violated his\nrights under the Eighth Amendment by being deliberately in-\ndiﬀerent to his serious medical needs, subjecting him to un-\nconstitutional conditions of confinement, and failing to\n\f2 No. 15-3077\n\nprotect him from other inmates. The district court granted\nsummary judgment to the defendants and Giles now appeals.\nThe district court’s conclusion was based largely on its hold-\ning that Giles could not establish the subjective elements of\nhis claims because the defendants, who are all non-medical\noﬃcials, appropriately relied on the judgment of medical pro-\nfessionals. Because we agree Giles cannot establish the de-\nfendants possessed a suﬃciently culpable state of mind, we\naﬃrm.\n I. Background\n A. Factual Background\n At all times relevant to this appeal, Giles was in the cus-\ntody of the Department and housed in five diﬀerent correc-\ntional facilities: Dixon Correctional Center (“Dixon”), Illinois\nRiver Correctional Center (“Illinois River”), Stateville Correc-\ntional Center (“Stateville”), Pontiac Correctional Center\n(“Pontiac”), and Lawrence Correctional Center (“Lawrence”).\nHe suﬀers from schizoaﬀective disorder. His symptoms in-\nclude anxiety, depression, auditory hallucinations, and sui-\ncidal ideation. He attempted suicide at least three times while\nin the Department’s custody. He has at various times been\nprescribed psychotropic medications that help him cope with\nthese symptoms but do not eliminate them entirely.\n Giles’s claims arise out of the medical treatment he re-\nceived and the conditions of his confinement at multiple cor-\nrectional facilities over a two-year period. Most of his com-\nplaints relate specifically to his placement in segregation.1 The\n\n 1 Although Giles’s placement in segregation is at the core of his com-\nplaint, the exact duration of his periods in segregation and the nature of\nsegregation placement at each facility are not clear from the record or\n\fNo. 15-3077 3\n\nfollowing timeline of events is compiled from Giles’s allega-\ntions, his medical records, and his deposition testimony.\n From late June 2010 until September 2010, Giles was\nhoused at Dixon, where he alleges he had daily access to men-\ntal health professionals and the opportunity to participate in\ntherapeutic programs.2 On September 22, 2010, Giles was\ntransferred from Dixon to Illinois River. According to the\nhealth status transfer summary prepared by an oﬃcial at\nDixon at the time of Giles’s transfer, Giles’s prescription for\npsychotropic medications (Prozac and Depakote) had been\ndiscontinued on July 23, 2010, about two months before he left\nDixon.\n Giles was examined by a nurse at Illinois River on October\n3, 2010, at which point he requested to see a psychologist be-\ncause he wanted to get back on his medications. The nurse\nnoted he was “upset that [he] cannot see psych today.” Three\ndays later, on October 6, Giles was transferred to Stateville\ndue to an unrelated legal proceeding. On October 9, while\nGiles was at Stateville, a psychiatrist again prescribed Prozac\nand Depakote, less than a week after he requested the return\nto medication.\n\n\n\n\nGiles’s allegations. As best as can be discerned, Giles was placed in segre-\ngation during two separate periods and at three different facilities: first, at\nIllinois River and Pontiac from March 2011 to approximately July 2011 (he\nwas transferred to Pontiac in April), and second, at Lawrence from Febru-\nary 2012 until approximately November 2012.\n 2 Giles acknowledged in his deposition that he did not avail himself\nof these programs, however, until he returned to Dixon after filing this\nsuit.\n\f4 No. 15-3077\n\n Giles was sent back to Illinois River on November 10, 2010.\nThis time, his transfer summary failed to include the fact that\nhe was receiving psychotropic medications, resulting in a\nlapse of medication. Giles was examined by a mental health\ncounselor on November 22 and then by a psychiatrist on No-\nvember 25. The psychiatrist again prescribed Prozac and De-\npakote and requested Giles’s medical records from Stateville.\nGiles was examined by a medical health counselor on Decem-\nber 8. On December 12, a psychiatrist reviewed Giles’s medi-\ncal records from Stateville and noticed Giles had received Pro-\nlixin while there and his symptoms had improved, so Giles\nwas placed back on Prolixin.\n Giles was examined by a mental health counselor on ten\ndiﬀerent occasions from December 2010 until April 2011. He\nwas also examined by a psychiatrist and attended group ther-\napy sessions multiple times in January until he stopped show-\ning up for the sessions in February.\n Giles complained to a mental health counselor in March\n2011 that he was not doing well and that he had not received\nhis Prolixin medication for two days. The counselor wrote in\nhis report that he addressed the medication issue with the\nprison pharmacy. Around this time, Giles had an altercation\nwith another inmate at Illinois River. According to Giles’s\ndeposition testimony, the incident occurred when he was\ntalking to himself and another inmate approached him, told\nhim to shut up, and spit in his face. Giles pushed the inmate\naway. He claims the reason he was talking to himself was be-\ncause he had not received his Prolixin medication, which\nhelps control the voices in his head.\n Because of the altercation, Giles was placed in segregation.\nAccording to Giles, while in segregation “you’re just thrown\n\fNo. 15-3077 5\n\nin a cell all day with other inmates that are violent, that don’t\ncare about you.” He claims he was subjected to violence from\nother inmates in segregation but that he never reported this\nto prison oﬃcials. He testified inmates in segregation were\ngiven yard time, but that he sometimes chose not to go be-\ncause he did not feel safe in the yard, claiming “that is where\nusually everybody fights.”\n After being placed in segregation in March 2011, Giles at-\ntempted suicide by cutting his wrists on his bed frame. His\ntestimony indicates his cousin had passed away around this\ntime and that his cellmate would not let him sleep at night.\nHe also testified his symptoms were “just getting so bad,” par-\nticularly the voices in his head, even though he acknowledges\nhe was receiving his medications at this time. The stress from\nthese combined factors led to his suicide attempt. Giles’s cell-\nmate notified the prison staﬀ and Giles was rescued. After\nthis, he was placed on suicide watch and was examined by\nmental health professionals.\n Giles was examined by a mental health counselor on\nApril 1 and April 8, 2011. The counselor noted there was “po-\ntential for exaggeration of symptoms” and that Giles was “co-\nherent” with “no overt distress.”\n Giles was again transferred from Illinois River on April 13,\n2011, this time to Pontiac. He remained in segregation at Pon-\ntiac. While at Pontiac, Giles alleges he received medication\nand one-on-one therapy, to “try to give [him] a little hope.”\nHe felt this treatment was insuﬃcient. He alleges he was not\ngiven his medications “about twice.” A psychiatrist discontin-\nued Giles’s existing prescriptions and prescribed new psycho-\ntropic medications on April 26. Three days later, Giles was\nagain examined by a psychiatrist who noted “there is nothing\n\f6 No. 15-3077\n\nto contraindicate continued segregation placement at this\ntime.”\n Giles received an extended interview with a psychiatrist\non May 24, 2011. During this session, Giles stated he was\n“fine, except that [he had] not been getting [his] Prolixin.” The\npsychiatrist noted Giles’s mood was good; he was awake,\nalert, and oriented; he displayed “[n]o acute distress/agita-\ntion”; his speech was “fluent and coherent”; and his\n“thoughts were organized.” Giles denied having any suicidal\nor homicidal thoughts. Besides claiming he had not been re-\nceiving Prolixin, “[h]e made no mention of any other serious\nconcerns.” Giles was still in segregation at this time.\n Giles was scheduled for another psychiatric appointment\non July 5, 2011, which he did not attend, opting to go to the\nprison yard instead. He was evaluated by a mental health pro-\nfessional on July 29, who again noted “there is nothing to con-\ntraindicate continued segregation placement at this time.” As\nbest as can be discerned from the record, Giles was removed\nfrom segregation sometime during July 2011.\n Giles was transferred to Lawrence in early September\n2011. He was examined by mental health professionals three\ntimes in September, four times in October, twice in Novem-\nber, twice in December, and three times in February 2012. Af-\nter one of the October examinations, the mental health profes-\nsional determined Giles was having issues with his cellmate\nand his cell assignment was exacerbating his symptoms. As a\nresult, Giles was assigned a new cell and cellmate the next\nday. Notes from his examination the following week indicate\n“notable improvement.”\n\fNo. 15-3077 7\n\n In February 2012, Giles was involved in another alterca-\ntion with an inmate, which formed the basis of his original\nfailure-to-protect claim. This altercation occurred when he ac-\ncidentally bumped into the other inmate in the mess hall\nwhile talking to himself. The other inmate assumed Giles was\ntalking to him and struck him in retaliation. Giles was ren-\ndered unconscious by the attack. Giles testified in his deposi-\ntion he had never had trouble with this inmate before and\nnever told the facility staﬀ he felt he was in danger, but that\n“it happened because of my symptoms. I was there, and [the\nother inmate] just happened to be aggressive.” During the in-\nvestigation of the altercation, when he was asked (apparently\nby prison oﬃcials) if he was “guilty,” Giles alleges he simply\nresponded he was. As a result, both Giles and the other inmate\nwere placed in segregation. Giles apparently stayed in segre-\ngation from February until November 2012.\n Giles was examined by mental health professionals nine\nmore times during the period spanning from March to July\n2012. During this time, he expressed his unhappiness at Law-\nrence, his unhappiness with being in segregation, and the\nanxiety he felt regarding the possibility of future altercations.\nGiles reported diﬃculties with cellmates and frequently re-\nquested reassignment. The mental health professionals noted\nGiles lacked focus during treatment sessions and often did\nnot complete assigned therapy homework.\n Throughout the two years at issue, Giles filed at least nine-\nteen grievances. His complaints related to insuﬃcient medical\ntreatment, delays or interruptions in receiving medication,\nunconstitutional conditions of confinement, lack of adequate\nsuicide prevention, vermin infestations, his unhappiness in\nsegregation, and other issues. He alleges all these grievances\n\f8 No. 15-3077\n\nwere either ignored outright or, if reviewed, his concerns\nwere not addressed. He testified in his deposition, however,\nthat he did not know whether the grievances were reviewed\nor investigated. We know from the record that at least three\nof these grievances (filed in March 2012, April 2012, and July\n2012) were subjected to “Emergency Review” by Marc Hodge\n(the warden at Lawrence). The record also includes responses\nto many of Giles’s appeals of his grievances alleging that he\nwas not receiving his medication, that segregation placement\nwas not conducive to his mental health, and that the facilities\nlacked proper mental health programs. These appeals were\nall denied, as the Department’s Administrative Review Board\n(the “ARB”) determined, “[b]ased on a total review of all\navailable information,” that the complaints were without\nmerit.\n Giles was eventually transferred back to Dixon in early\n2014.\n B. District Court Proceedings\n Giles filed this suit pro se on September 4, 2012. He named\nseveral defendants, nine of which remain in the case at this\nstage: S.A. Godinez (the Department’s acting director during\nthe relevant time period), Richard Birkey (the warden at Illi-\nnois River), Leonta Jackson (the assistant warden at Illinois\nRiver), Ron Zessin (the clinical services supervisor at Illinois\nRiver), Randy Pfister (the warden at Pontiac), Michael Lemke\n(the assistant warden at Pontiac), Marc Hodge (the warden at\nLawrence), Mark Storm (the assistant warden at Lawrence),\nand Randy Stevenson (the clinical services supervisor at\n\fNo. 15-3077 9\n\nLawrence).3 Giles asserted three claims under the Eighth\nAmendment, seeking to hold the defendants liable for these\nalleged constitutional violations pursuant to 42 U.S.C. § 1983.\nFirst, he asserted a claim of deliberate indiﬀerence to serious\nmedical needs based on his allegations of inadequate treat-\nment and delays in providing medication at Illinois River,\nPontiac, and Lawrence. Second, he asserted a conditions-of-\nconfinement claim based on his allegations of vermin infesta-\ntions and unsanitary conditions while in segregation at Pon-\ntiac and Lawrence. Third, he asserted a failure-to-protect\nclaim based on the February 2012 altercation.\n The case was referred to a U.S. magistrate judge in late\n2012, with Giles’s consent. The defendants moved for sum-\nmary judgment in June 2014. The magistrate judge issued a\nReport & Recommendation (R&R) and recommended grant-\ning summary judgment on the ground that Giles failed to\nshow deliberate indiﬀerence. After a de novo review of the\nR&R and Giles’s objections thereto, the district court adopted\nthe R&R in its entirety and granted summary judgment to the\ndefendants.\n Throughout the district court proceedings, Giles filed mul-\ntiple motions to appoint counsel. He first filed such a motion\non September 4, 2012. The magistrate judge denied the motion\nbecause Giles had not demonstrated that he had attempted to\nfind counsel on his own. On December 17, Giles filed a motion\nto reconsider his motion to appoint counsel after attempting\nunsuccessfully to find an attorney. The magistrate judge again\ndenied the motion, holding that the issues in the case were not\n\n\n 3 Five other defendants, also Department officials, were dismissed by\nthe district court in November 2012.\n\f10 No. 15-3077\n\nfactually complex because discovery had been limited at that\ntime to only the issue of exhaustion of administrative reme-\ndies. The court held that Giles was competent to litigate on his\nown at that stage. Giles filed another motion to appoint coun-\nsel on July 2, 2013. The court reaﬃrmed its previous decision\nthat Giles appeared competent to litigate the case at the cur-\nrent stage and stated that the issue of appointing counsel\nwould not be reconsidered until after the resolution of the ad-\nministrative remedies issue.\n In August 2013, after the defendants’ deadline to raise a\nfailure to exhaust administrative remedies defense had ex-\npired, Giles once again moved the court to appoint counsel\nfor him. The magistrate judge construed the motion as a mo-\ntion for recruitment of counsel and granted it, noting that the\ncourt has no authority to appoint counsel in § 1983 cases but\ncan seek to recruit a volunteer attorney. See Navejar v. Iyiola,\n718 F.3d 692, 696 (7th Cir. 2013). The district court circulated\na request for representation to the court’s list of “approxi-\nmately 50 licensed and registered attorneys that have indi-\ncated an interest in representing indigent litigants in this dis-\ntrict.” However, no attorneys were willing and available to\nrepresent Giles immediately.\n Giles moved in February 2014 for additional time to seek\ncounsel. Giles argued he needed legal assistance to “prepare\ndocuments, for dispositive motions, and discovery.” The\nmagistrate judge denied the motion because Giles had not\nspecified a deadline for the extension request, but he stated he\nwould continue to seek a volunteer to represent Giles. Giles\nfiled another motion to recruit counsel in May 2014. The mag-\nistrate judge denied the motion as moot, having already\ngranted the earlier motion to recruit, but once again solicited\n\fNo. 15-3077 11\n\nvolunteers from the pro bono list. Giles moved for recruit-\nment of counsel again in August 2014 while summary judg-\nment was pending. The magistrate judge again explained that\nthe motion to recruit counsel had previously been granted\nand that the court had done all it could to solicit a volunteer.\nGiles’s case was published to the list of volunteers a third\ntime. The magistrate judge encouraged Giles to continue liti-\ngating the case to the best of his ability. Finally, Giles filed a\nmotion to appoint counsel once again in December 2014,\nwhich the district court denied as moot in January 2015, stat-\ning that it had already granted Giles’s motion to recruit and\nthat Giles would be notified if an attorney volunteered to take\nthe case.\n Giles also moved multiple times, beginning on October 16,\n2014, to appoint an expert. The magistrate judge denied these\nmotions, stating “[t]he discovery period is closed, but the\nplaintiﬀ may later seek to appoint an expert for trial if the [de-\nfendants’] motion for summary judgment is denied.”\n Giles now appeals the district court’s grant of summary\njudgment on his claim for deliberate indiﬀerence to serious\nmedical needs and his conditions-of-confinement claim, as\nwell as the district court’s actions regarding his motions to re-\ncruit counsel and appoint an expert.\n II. Discussion\n We review the district court’s grant of summary judgment\nde novo. Knopick v. Jayco, Inc., 895 F.3d 525, 528 (7th Cir. 2018).\nA district court properly grants summary judgment where\nthere is no genuine dispute as to any material fact and the\nmoving party is entitled to judgment as a matter of law. FED.\nR. CIV. P. 56(a); Valenti v. Lawson, 889 F.3d 427, 429 (7th Cir.\n\f12 No. 15-3077\n\n2018). All justifiable inferences are drawn in favor of the non-\nmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255\n(1986). The non-movant must, however, present specific facts\nestablishing a material issue for trial, and any inferences must\nrely on more than mere speculation or conjecture. Aguilar v.\nGaston-Camara, 861 F.3d 626, 630–31 (7th Cir. 2017).\n The Eighth Amendment, applicable to the States through\nthe Fourteenth Amendment, prohibits the infliction of “cruel\nand unusual punishments.” U.S. CONST. amend. VIII; Estelle v.\nGamble, 429 U.S. 97, 101 (1976). The Supreme Court has inter-\npreted the Eighth Amendment to prohibit any punishments\n“which, although not physically barbarous, ‘involve the un-\nnecessary and wanton infliction of pain.’” Rhodes v. Chapman,\n452 U.S. 337, 346 (1981) (quoting Gregg v. Georgia, 428 U.S. 153,\n173 (1976)). Thus, the Eighth Amendment gives rise to consti-\ntutional claims by inmates alleging that the conditions of their\nconfinement violate this prohibition by imposing “the wanton\nand unnecessary infliction of pain.” See Rhodes, 452 U.S. at 347.\nThe Supreme Court has further established that prison oﬃ-\ncials impose wanton and unnecessary infliction of pain when\nthey are deliberately indiﬀerent to an inmate’s serious medi-\ncal needs. Estelle, 429 U.S. at 104. Giles here appeals summary\njudgment on both a claim of deliberate indiﬀerence to his se-\nrious medical needs as well as a conditions-of-confinement\nclaim. We discuss each in turn.\n A. Deliberate Indiﬀerence to Serious Medical Needs\n To establish an Eighth Amendment claim for deliberate in-\ndiﬀerence to serious medical needs, the plaintiﬀ must show\ntwo elements: one objective and one subjective. Whiting v.\nWexford Health Sources, Inc., 839 F.3d 658, 662 (7th Cir. 2016).\n“[T]he plaintiﬀ must prove that he suﬀered from ‘(1) an\n\fNo. 15-3077 13\n\nobjectively serious medical condition to which (2) a state oﬃ-\ncial was deliberately, that is subjectively, indiﬀerent.’” Id.\n(quoting Duckworth v. Ahmad, 532 F.3d 675, 679 (7th Cir.\n2008)). “[D]eliberate means more than negligent,” though\n“something less than purposeful.” Duckworth, 532 F.3d at 679.\nWe have described this subjective element as “’a suﬃciently\nculpable state of mind,’ something akin to recklessness.”\nArnett v. Webster, 658 F.3d 742, 751 (7th Cir. 2011) (quoting\nJohnson v. Snyder, 444 F.3d 579, 585 (7th Cir. 2006), overruled on\nother grounds by Hill v. Tangherlini, 724 F.3d 965, 967 n.1 (7th\nCir. 2013)). Although the inmate must demonstrate deliberate\nindiﬀerence, he “is not required to show that he was literally\nignored.” Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005)\n(quoting Sherrod v. Lingle, 223 F.3d 605, 611 (7th Cir. 2000)).\n Regarding the objective element of his claim, Giles has\nclearly met his burden. His schizoaﬀective disorder diagno-\nsis, his symptoms, and his multiple prescriptions for psycho-\ntropic medications firmly establish that he suﬀered from an\nobjectively serious medical condition. See id. (“A serious med-\nical condition is one that has been diagnosed by a physician\nas mandating treatment or one that is so obvious that even a\nlay person would perceive the need for a doctor’s attention.”).\nGiles’s claim hinges, therefore, on whether he has shown the\ndefendants possessed the “suﬃciently culpable state of\nmind” necessary to establish the subjective element of delib-\nerate indiﬀerence. The district court held that Giles failed to\nmeet this burden. We agree.\n Giles cannot establish the subjective element of his claim\nbecause the defendants are all non-medical oﬃcials who rea-\nsonably relied on the judgment of medical professionals. We\nhave long recognized that the division of labor within a prison\n\f14 No. 15-3077\n\nnecessitates that non-medical oﬃcials may reasonably defer\nto the judgment of medical professionals regarding inmate\ntreatment. “If a prisoner is under the care of medical experts\n… a non-medical prison oﬃcial will generally be justified in\nbelieving that the prisoner is in capable hands.” Id. at 656\n(quoting Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004)). As\nthe Third Circuit has held, “absent a reason to believe (or ac-\ntual knowledge) that prison doctors or their assistants are\nmistreating (or not treating) a prisoner, a non-medical prison\noﬃcial … will not be chargeable with the Eighth Amendment\nscienter requirement of deliberate indiﬀerence.” Spruill, 372\nF.3d at 236.\n In Hayes v. Snyder, 546 F.3d 516, 527–28 (7th Cir. 2008), we\naﬃrmed summary judgment for non-medical prison oﬃcials\nwho relied on the professional judgment of prison medical\nstaﬀ. Like Giles, the inmate in Hayes sent several letters and\nfiled multiple grievances alleging he was receiving inade-\nquate treatment for his objectively serious medical condition.\nId. at 526. Although the non-medical oﬃcials did not ignore\nthe inmate’s grievances entirely, they did not investigate fur-\nther than the medical staﬀ’s reports and summaries, and oth-\nerwise simply referred the complaints to the medical staﬀ. Id.\nat 527. We held that the non-medical oﬃcials did not have\n“any duty to do more than they did, in light of their\nknowledge of the situation.” Id. They “were entitled to rely on\nthe professional judgment of medical prison oﬃcials” and\n“nothing in [the medical] reports made it obvious that [the in-\nmate] might not be receiving adequate care.” Id. at 527–28.\n A review of the record demonstrates that throughout his\nvarious stints at Illinois River, Stateville, Pontiac, and Law-\nrence, Giles was receiving regular medical attention from\n\fNo. 15-3077 15\n\npsychologists, psychiatrists, and mental health professionals.\nAlthough the record does not contain detailed information\nabout what the grievance procedures were at each facility, it\ndoes contain evidence that several of his grievances were sub-\njected to emergency review. Furthermore, Giles’s appeals\nwere reviewed by the ARB, which found his complaints to be\nwithout merit upon investigation. Giles has not presented ev-\nidence that his grievances were ignored or mishandled. Nor\nwas there an indication from his medical records that he was\nnot receiving adequate care. In short, the non-medical oﬃcials\nrelied on the medical professionals to provide proper treat-\nment, and there was nothing to give notice to the oﬃcials of a\nneed to intervene.\n Giles asserts the defendants were deliberately indiﬀerent\nby allowing him to “go on and oﬀ of his medication many\ntimes” despite knowing his health condition required contin-\nuous treatment. However, the record does not support this as-\nsertion. Giles’s medications were discontinued in July 2010\nwhile still at Dixon pursuant to a decision made by medical\nprofessionals. Several weeks later, after being transferred first\nto Illinois River and then to Stateville, Giles was placed back\non medications soon after he requested them. Although there\nwere other brief delays in his receipt of medication, when he\nbrought these to the medical professionals’ attention his con-\ncerns were addressed, or else it was determined after a review\nof all available information that he was properly receiving his\nmedication as prescribed. Even during one of the periods\nwhere Giles alleged he was not receiving his medication, a\npsychiatrist reported after an extended interview that Giles’s\ndemeanor was good, he was coherent and alert, and he dis-\nplayed no acute distress or agitation. Such reports from the\nmedical professionals charged with Giles’s care defy the\n\f16 No. 15-3077\n\nconclusion that the non-medical defendants knew of and dis-\nregarded an excessive risk to Giles’s health and safety.\n The most serious lapse in treatment was the two-week pe-\nriod in November 2010 when he was transferred back to Illi-\nnois River from Stateville. This lapse was caused by a failure\nto include his current prescriptions on his transfer summary.\nWhile this was certainly a concerning oversight, it does not\nmeet the standard of deliberate indiﬀerence: a knowing dis-\nregard of an excessive risk to Giles’s health and safety. As we\nhave noted before, “deliberate means more than negligent.”\nDuckworth, 532 F.3d at 679. Giles’s medication was re-pre-\nscribed as soon as he was examined by a psychologist at Illi-\nnois River, who requested and reviewed Giles’s medical rec-\nords from Stateville.\n No reasonable jury could find that the defendants knew of\nand disregarded an excessive risk to Giles’s health and safety,\nand thus summary judgment on this claim was appropriate.\n B. Conditions of Confinement\n Giles also appeals the grant of summary judgment on his\nconditions-of-confinement claim. Although the complaint fo-\ncused on specific conditions to which Giles was subjected\nwhile in segregation (such as vermin infestations, filthiness,\nand lengthy periods of isolation), on appeal Giles has re-\nframed the violation as being the combined eﬀect that these\nconditions had on his mental health.4 He asserts his place-\nment in segregation subjected him to conditions which exac-\nerbated his symptoms, or which were more diﬃcult for him\n\n 4 Giles’s counsel explained at oral argument “what’s happening to his\n\nmental health while he’s in segregation is the conditions of confinement\nviolation.”\n\fNo. 15-3077 17\n\nto cope with due to his symptoms. He argues that even\nthough segregation placement and the conditions of his con-\nfinement may not have been cruel and unusual in the case of\nan ordinary inmate, they amounted to cruel and unusual\ntreatment in his case given their combined eﬀect on his illness.\n The Eighth Amendment prohibits the States from subject-\ning prisoners to conditions of confinement amounting to cruel\nand unusual punishment. Rhodes, 452 U.S. at 345–47. Accord-\ning to the Supreme Court, however, “extreme deprivations\nare required to make out a conditions-of-confinement claim.”\nHudson v. McMillian, 503 U.S. 1, 9 (1992). Whether conditions\nof confinement are cruel and unusual must be judged in ac-\ncordance with contemporary standards of decency. Id. at 8;\nRhodes, 452 U.S. at 346. If under contemporary standards the\nconditions cannot be said to be cruel and unusual, then they\nare not unconstitutional, and “[t]o the extent that such condi-\ntions are restrictive and even harsh, they are part of the pen-\nalty that criminal oﬀenders pay for their oﬀenses against so-\nciety.” Rhodes, 452 U.S. at 347.\n As with a claim for deliberate indiﬀerence to serious med-\nical needs, a conditions-of-confinement claim includes an ob-\njective and a subjective component. Isby v. Brown, 856 F.3d\n508, 521 (7th Cir. 2017). The plaintiﬀ must first establish “an\nobjective showing that the conditions are suﬃciently seri-\nous—i.e., that they deny the inmate ‘the minimal civilized\nmeasure of life’s necessities,’ creating an excessive risk to the\ninmate’s health and safety.” Id. (quoting Rhodes, 452 U.S. at\n347) (internal citations omitted). The plaintiﬀ must next estab-\nlish “a subjective showing of a defendant’s culpable state of\nmind.” Id. Once again, the state of mind necessary to establish\nliability is deliberate indiﬀerence to the inmate’s health or\n\f18 No. 15-3077\n\nsafety. Estate of Novack ex rel. Turbin v. Cty. of Wood, 226 F.3d\n525, 529 (7th Cir. 2000).\n Giles attempts to satisfy the objective element by arguing\nthat placing a mentally ill inmate in segregation—under con-\nditions that exacerbate his symptoms or with which he has\ndiﬃculty coping due to his symptoms—is an objectively seri-\nous condition creating an excessive risk to his health and\nsafety. We have indeed recognized that prolonged segregated\nconfinement may constitute an Eighth Amendment violation\nin some instances. See Isby, 856 F.3d at 521 (quoting Rice ex rel.\nRice v. Corr. Med. Servs., 675 F.3d 650, 666 (7th Cir. 2012)). We\nhave also held that the aggregate eﬀect of a multitude of indi-\nvidual conditions may constitute a violation even if each in-\ndividual condition could not establish a violation standing on\nits own. Id. at 522. However, this only occurs when the condi-\ntions “have a mutually enforcing eﬀect that produces the dep-\nrivation of a single, identifiable human need such as food,\nwarmth, or exercise.” Id. (quoting Wilson v. Seiter, 501 U.S. 294,\n304 (1991)). The core issue is whether the conditions deprived\nthe plaintiﬀ of a “minimal civilized measure of life’s necessi-\nties.” Rice, 675 F.3d at 664–65.\n While we do not deny that Giles experienced harsh condi-\ntions in segregation, the record does not support a finding\nthat he was deprived of the minimal civilized measure of life’s\nnecessities, even considering the eﬀects on his mental condi-\ntion. He was regularly evaluated by mental health profession-\nals at all facilities, and they repeatedly determined that his\ncondition did not contraindicate continued segregation. And\non the occasion in November 2011 when a mental health pro-\nfessional determined that his mental condition was being ex-\nacerbated by his cell assignment, he was reassigned and\n\fNo. 15-3077 19\n\nmoved the next day, checked on less than a week later, and\nwas found to have notably improved. Giles has therefore not\nestablished the objective element of his claim.\n Even if Giles could establish an objectively serious condi-\ntion, he ultimately fails to establish the necessary subjective\ncomponent of his claim: the defendants’ culpable state of\nmind. Once again, the defendants relied on the judgment of\nthe medical professionals into whose care Giles was en-\ntrusted. No reasonable jury could find that the defendants\nconsciously disregarded an excessive risk to Giles’s health by\nkeeping him in segregation when the mental health profes-\nsionals continually reported it was appropriate to do so.\n Since Giles failed to establish both the objective and sub-\njective elements of his claim, summary judgment in favor of\nthe defendants was proper.\n C. Motions to Recruit Counsel and Appoint Expert\n The final issue on appeal concerns the district court’s han-\ndling of Giles’s motions to appoint or recruit counsel and to\nappoint an expert. We review the district court’s decisions on\nthese motions for abuse of discretion. Pruitt v. Mote, 503 F.3d\n647, 649, 658 (7th Cir. 2007) (en banc) (reviewing a decision on\na motion to recruit counsel for abuse of discretion); Ledford v.\nSullivan, 105 F.3d 354, 358 (7th Cir. 1997) (holding that a deci-\nsion on a motion for appointment of an expert witness is re-\nviewed for abuse of discretion). In reviewing for abuse of dis-\ncretion, we do not substitute our own judgment for the dis-\ntrict court’s; rather, the “decision must strike us as fundamen-\ntally wrong for an abuse of discretion to occur.” Ladien v.\nAstrachan, 128 F.3d 1051, 1056 (7th Cir. 1997).\n\f20 No. 15-3077\n\n We note at the outset of our discussion that “[t]here is no\nright to court-appointed counsel in federal civil litigation.”\nOlson v. Morgan, 750 F.3d 708, 711 (7th Cir. 2014). However,\nthe district court does have the discretion to recruit a volun-\nteer to represent a plaintiﬀ who cannot otherwise aﬀord coun-\nsel. Navejar, 718 F.3d at 696. The court “must rely on the gen-\nerosity of lawyers to volunteer their time and skill on behalf\nof indigent civil parties.” Wilborn v. Ealey, 881 F.3d 998, 1008\n(7th Cir. 2018).\n Evaluating whether to recruit counsel involves a two-step\nprocess. First, the court must determine if the plaintiﬀ made\na reasonable attempt to secure counsel on his own. Navejar,\n718 F.3d at 696. Next, the court must examine “whether the\ndiﬃculty of the case—factually and legally—exceeds the par-\nticular plaintiﬀ’s capacity as a layperson to coherently present\nit.” Id. (quoting Pruitt, 503 F.3d at 655). Even where the court\ndecides to recruit a volunteer, however, it does not have “an\nindefinite commitment to search until a volunteer is found.”\nWilborn, 881 F.3d at 1008.\n The insuﬃcient number of volunteer attorneys in some of\nour districts limits courts’ ability to locate representation for\nindigents. See James v. Eli, 889 F.3d 320, 330–31 (7th Cir. 2018).\nThis case presents the question of what a court should do in\nthe event a court determines that the case’s complexity ap-\npears to exceed the plaintiﬀ’s capacity to litigate his claims\nand the court exercises discretion to seek a volunteer attorney\nbut is unable to find one.\n We considered a similar question in Wilborn v. Ealey, 881\nF.3d 998 (7th Cir. 2018). In that case, the plaintiﬀ filed multiple\nmotions to recruit counsel. The district court eventually\ngranted one such motion and spent several months searching.\n\fNo. 15-3077 21\n\nAfter contacting over four hundred attorneys, the court iden-\ntified a volunteer. This success was short-lived, though. The\nattorney had a scheduling conflict, which ultimately led the\ncourt to grant his motion to withdraw. Despite this change,\nthe plaintiﬀ did not file another motion to recruit counsel. The\ncourt oﬀered to postpone the trial, but the plaintiﬀ declined\nthe court’s oﬀer. As a result, the court allowed the plaintiﬀ to\nproceed to trial pro se. Based on those facts, we decided that\nthe court’s eﬀorts were “more than enough to satisfy any duty\nto the indigent plaintiﬀ,” and we held that the court did not\nabuse its discretion in allowing the plaintiﬀ to try his case pro\nse. Id. at 1008.\n Here too, we conclude that the district court fulfilled its\nobligation to Giles by circulating a request for representation\nto the court’s list of approximately fifty attorneys on three sep-\narate occasions over the course of one year. Yet it is somewhat\nconcerning that at some point the court determined further\nsearching would be futile and, without communicating that\nupdate to Giles, decided it was appropriate to resolve the\npending motion for summary judgment.\n Acknowledging that “[t]here are limits to what a court\nmust do after deciding to recruit counsel,” id., in cases such as\nthis—where the complexities of litigating are high, having\ncounsel is increasingly important, and a district court has con-\ncluded that it is unable to locate a volunteer attorney—it\nwould be advisable for a judge to communicate with the\nplaintiﬀ and consider oﬀering a reasonable continuance be-\nfore proceeding to rule on a dispositive motion. The addi-\ntional time after a court has exhausted its search eﬀorts might\naﬀord a limited opportunity for indigent litigants to seek\n\f22 No. 15-3077\n\ncounsel on their own, or at a minimum, conduct some prelim-\ninary discovery.\n The district court also denied Giles’s motion to appoint an\nexpert witness, holding that an expert was not necessary be-\nfore summary judgment but stating that Giles could move to\nappoint an expert for trial if his case survived summary judg-\nment. A court may, in its discretion, appoint an expert witness\nwhere the expert’s “specialized knowledge will assist the\ntrier-of-fact to understand the evidence or decide a fact in is-\nsue.” Ledford, 105 F.3d at 358–59. The district court determined\nGiles’s claims failed as a matter of law to show the defendants\nknowingly disregarded a substantial risk of serious harm to\nhim. This decision did not hinge on specialized knowledge or\nfact-finding. Instead, the court recognized Giles had received\nconsistent treatment from medical professionals and the de-\nfendants had relied on the medical judgment of those profes-\nsionals. The grant of summary judgment was based on Giles’s\nfailure to establish the defendants’ suﬃciently culpable state\nof mind, not on a technical analysis of the medical treatment\nhe received or the suﬃciency of that treatment. Thus, the dis-\ntrict court acted fully within its discretion by denying the mo-\ntion to appoint an expert witness at that stage of litigation.\n III. Conclusion\n Prison is, by its very nature, an unpleasant place to be, and\nwe have no doubt that Giles’s objectively serious condition\nand symptoms contributed to his overall discomfort. The dis-\npositive defect of Giles’s case, however, is that the defendants\nagainst whom he has filed this action are non-medical oﬃcials\nwho were entitled by law to rely on the judgment of the med-\nical professionals under whose care Giles was placed. Section\n1983 does not create a system of vicarious liability. The\n\fNo. 15-3077 23\n\ndefendants cannot be held liable unless they were aware of\nfacts from which a reasonable inference could be drawn that\nGiles was subjected to a substantial risk of serious harm, drew\nsuch an inference, and yet did not intervene. Based on this\nrecord, we hold that Giles has failed to make that showing,\nand therefore has failed as a matter of law to establish delib-\nerate indiﬀerence. We AFFIRM the judgment of the district\ncourt.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4362873/", "author_raw": "Daniel Anthony Manion"}]}	FLAUM	MANION	ST EVE	1		{"FLAUM": ", Circuit", "MANION": ", Circuit", "ST EVE": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4585620/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Bruce Giles v. Salvador Godinez\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-29\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 15-3077\nBRUCE GILES,\n Plaintiff-Appellant,\n v.\n\nSALVADOR A. GODINEZ, Acting Director, et al.,\n Defendants-Appellees.\n ____________________\n\n Appeal from the United States District Court for the\n Southern District of Illinois.\n No. 3:12-cv-00965 — J. Phil Gilbert, Judge.\n ____________________\n\n ARGUED NOVEMBER 8, 2018 — DECIDED JANUARY 29, 2019\n ____________________\n\n Before FLAUM, MANION, and ST. EVE, Circuit Judges.\n MANION, Circuit Judge. Bruce Giles is a prisoner in the cus-\ntody of the Illinois Department of Corrections (the “Depart-\nment”) who suﬀers from schizoaﬀective disorder. Giles filed\nthis action pro se under 42 U.S.C. § 1983 against several De-\npartment oﬃcials. He alleges the defendants violated his\nrights under the Eighth Amendment by being deliberately in-\ndiﬀerent to his serious medical needs, subjecting him to un-\nconstitutional conditions of confinement, and failing to\n\f2 No. 15-3077\n\nprotect him from other inmates. The district court granted\nsummary judgment to the defendants and Giles now appeals.\nThe district court’s conclusion was based largely on its hold-\ning that Giles could not establish the subjective elements of\nhis claims because the defendants, who are all non-medical\noﬃcials, appropriately relied on the judgment of medical pro-\nfessionals. Because we agree Giles cannot establish the de-\nfendants possessed a suﬃciently culpable state of mind, we\naﬃrm.\n I. Background\n A. Factual Background\n At all times relevant to this appeal, Giles was in the cus-\ntody of the Department and housed in five diﬀerent correc-\ntional facilities: Dixon Correctional Center (“Dixon”), Illinois\nRiver Correctional Center (“Illinois River”), Stateville Correc-\ntional Center (“Stateville”), Pontiac Correctional Center\n(“Pontiac”), and Lawrence Correctional Center (“Lawrence”).\nHe suﬀers from schizoaﬀective disorder. His symptoms in-\nclude anxiety, depression, auditory hallucinations, and sui-\ncidal ideation. He attempted suicide at least three times while\nin the Department’s custody. He has at various times been\nprescribed psychotropic medications that help him cope with\nthese symptoms but do not eliminate them entirely.\n Giles’s claims arise out of the medical treatment he re-\nceived and the conditions of his confinement at multiple cor-\nrectional facilities over a two-year period. Most of his com-\nplaints relate specifically to his placement in segregation.1 The\n\n 1 Although Giles’s placement in segregation is at the core of his com-\nplaint, the exact duration of his periods in segregation and the nature of\nsegregation placement at each facility are not clear from the record or\n\fNo. 15-3077 3\n\nfollowing timeline of events is compiled from Giles’s allega-\ntions, his medical records, and his deposition testimony.\n From late June 2010 until September 2010, Giles was\nhoused at Dixon, where he alleges he had daily access to men-\ntal health professionals and the opportunity to participate in\ntherapeutic programs.2 On September 22, 2010, Giles was\ntransferred from Dixon to Illinois River. According to the\nhealth status transfer summary prepared by an oﬃcial at\nDixon at the time of Giles’s transfer, Giles’s prescription for\npsychotropic medications (Prozac and Depakote) had been\ndiscontinued on July 23, 2010, about two months before he left\nDixon.\n Giles was examined by a nurse at Illinois River on October\n3, 2010, at which point he requested to see a psychologist be-\ncause he wanted to get back on his medications. The nurse\nnoted he was “upset that [he] cannot see psych today.” Three\ndays later, on October 6, Giles was transferred to Stateville\ndue to an unrelated legal proceeding. On October 9, while\nGiles was at Stateville, a psychiatrist again prescribed Prozac\nand Depakote, less than a week after he requested the return\nto medication.\n\n\n\n\nGiles’s allegations. As best as can be discerned, Giles was placed in segre-\ngation during two separate periods and at three different facilities: first, at\nIllinois River and Pontiac from March 2011 to approximately July 2011 (he\nwas transferred to Pontiac in April), and second, at Lawrence from Febru-\nary 2012 until approximately November 2012.\n 2 Giles acknowledged in his deposition that he did not avail himself\nof these programs, however, until he returned to Dixon after filing this\nsuit.\n\f4 No. 15-3077\n\n Giles was sent back to Illinois River on November 10, 2010.\nThis time, his transfer summary failed to include the fact that\nhe was receiving psychotropic medications, resulting in a\nlapse of medication. Giles was examined by a mental health\ncounselor on November 22 and then by a psychiatrist on No-\nvember 25. The psychiatrist again prescribed Prozac and De-\npakote and requested Giles’s medical records from Stateville.\nGiles was examined by a medical health counselor on Decem-\nber 8. On December 12, a psychiatrist reviewed Giles’s medi-\ncal records from Stateville and noticed Giles had received Pro-\nlixin while there and his symptoms had improved, so Giles\nwas placed back on Prolixin.\n Giles was examined by a mental health counselor on ten\ndiﬀerent occasions from December 2010 until April 2011. He\nwas also examined by a psychiatrist and attended group ther-\napy sessions multiple times in January until he stopped show-\ning up for the sessions in February.\n Giles complained to a mental health counselor in March\n2011 that he was not doing well and that he had not received\nhis Prolixin medication for two days. The counselor wrote in\nhis report that he addressed the medication issue with the\nprison pharmacy. Around this time, Giles had an altercation\nwith another inmate at Illinois River. According to Giles’s\ndeposition testimony, the incident occurred when he was\ntalking to himself and another inmate approached him, told\nhim to shut up, and spit in his face. Giles pushed the inmate\naway. He claims the reason he was talking to himself was be-\ncause he had not received his Prolixin medication, which\nhelps control the voices in his head.\n Because of the altercation, Giles was placed in segregation.\nAccording to Giles, while in segregation “you’re just thrown\n\fNo. 15-3077 5\n\nin a cell all day with other inmates that are violent, that don’t\ncare about you.” He claims he was subjected to violence from\nother inmates in segregation but that he never reported this\nto prison oﬃcials. He testified inmates in segregation were\ngiven yard time, but that he sometimes chose not to go be-\ncause he did not feel safe in the yard, claiming “that is where\nusually everybody fights.”\n After being placed in segregation in March 2011, Giles at-\ntempted suicide by cutting his wrists on his bed frame. His\ntestimony indicates his cousin had passed away around this\ntime and that his cellmate would not let him sleep at night.\nHe also testified his symptoms were “just getting so bad,” par-\nticularly the voices in his head, even though he acknowledges\nhe was receiving his medications at this time. The stress from\nthese combined factors led to his suicide attempt. Giles’s cell-\nmate notified the prison staﬀ and Giles was rescued. After\nthis, he was placed on suicide watch and was examined by\nmental health professionals.\n Giles was examined by a mental health counselor on\nApril 1 and April 8, 2011. The counselor noted there was “po-\ntential for exaggeration of symptoms” and that Giles was “co-\nherent” with “no overt distress.”\n Giles was again transferred from Illinois River on April 13,\n2011, this time to Pontiac. He remained in segregation at Pon-\ntiac. While at Pontiac, Giles alleges he received medication\nand one-on-one therapy, to “try to give [him] a little hope.”\nHe felt this treatment was insuﬃcient. He alleges he was not\ngiven his medications “about twice.” A psychiatrist discontin-\nued Giles’s existing prescriptions and prescribed new psycho-\ntropic medications on April 26. Three days later, Giles was\nagain examined by a psychiatrist who noted “there is nothing\n\f6 No. 15-3077\n\nto contraindicate continued segregation placement at this\ntime.”\n Giles received an extended interview with a psychiatrist\non May 24, 2011. During this session, Giles stated he was\n“fine, except that [he had] not been getting [his] Prolixin.” The\npsychiatrist noted Giles’s mood was good; he was awake,\nalert, and oriented; he displayed “[n]o acute distress/agita-\ntion”; his speech was “fluent and coherent”; and his\n“thoughts were organized.” Giles denied having any suicidal\nor homicidal thoughts. Besides claiming he had not been re-\nceiving Prolixin, “[h]e made no mention of any other serious\nconcerns.” Giles was still in segregation at this time.\n Giles was scheduled for another psychiatric appointment\non July 5, 2011, which he did not attend, opting to go to the\nprison yard instead. He was evaluated by a mental health pro-\nfessional on July 29, who again noted “there is nothing to con-\ntraindicate continued segregation placement at this time.” As\nbest as can be discerned from the record, Giles was removed\nfrom segregation sometime during July 2011.\n Giles was transferred to Lawrence in early September\n2011. He was examined by mental health professionals three\ntimes in September, four times in October, twice in Novem-\nber, twice in December, and three times in February 2012. Af-\nter one of the October examinations, the mental health profes-\nsional determined Giles was having issues with his cellmate\nand his cell assignment was exacerbating his symptoms. As a\nresult, Giles was assigned a new cell and cellmate the next\nday. Notes from his examination the following week indicate\n“notable improvement.”\n\fNo. 15-3077 7\n\n In February 2012, Giles was involved in another alterca-\ntion with an inmate, which formed the basis of his original\nfailure-to-protect claim. This altercation occurred when he ac-\ncidentally bumped into the other inmate in the mess hall\nwhile talking to himself. The other inmate assumed Giles was\ntalking to him and struck him in retaliation. Giles was ren-\ndered unconscious by the attack. Giles testified in his deposi-\ntion he had never had trouble with this inmate before and\nnever told the facility staﬀ he felt he was in danger, but that\n“it happened because of my symptoms. I was there, and [the\nother inmate] just happened to be aggressive.” During the in-\nvestigation of the altercation, when he was asked (apparently\nby prison oﬃcials) if he was “guilty,” Giles alleges he simply\nresponded he was. As a result, both Giles and the other inmate\nwere placed in segregation. Giles apparently stayed in segre-\ngation from February until November 2012.\n Giles was examined by mental health professionals nine\nmore times during the period spanning from March to July\n2012. During this time, he expressed his unhappiness at Law-\nrence, his unhappiness with being in segregation, and the\nanxiety he felt regarding the possibility of future altercations.\nGiles reported diﬃculties with cellmates and frequently re-\nquested reassignment. The mental health professionals noted\nGiles lacked focus during treatment sessions and often did\nnot complete assigned therapy homework.\n Throughout the two years at issue, Giles filed at least nine-\nteen grievances. His complaints related to insuﬃcient medical\ntreatment, delays or interruptions in receiving medication,\nunconstitutional conditions of confinement, lack of adequate\nsuicide prevention, vermin infestations, his unhappiness in\nsegregation, and other issues. He alleges all these grievances\n\f8 No. 15-3077\n\nwere either ignored outright or, if reviewed, his concerns\nwere not addressed. He testified in his deposition, however,\nthat he did not know whether the grievances were reviewed\nor investigated. We know from the record that at least three\nof these grievances (filed in March 2012, April 2012, and July\n2012) were subjected to “Emergency Review” by Marc Hodge\n(the warden at Lawrence). The record also includes responses\nto many of Giles’s appeals of his grievances alleging that he\nwas not receiving his medication, that segregation placement\nwas not conducive to his mental health, and that the facilities\nlacked proper mental health programs. These appeals were\nall denied, as the Department’s Administrative Review Board\n(the “ARB”) determined, “[b]ased on a total review of all\navailable information,” that the complaints were without\nmerit.\n Giles was eventually transferred back to Dixon in early\n2014.\n B. District Court Proceedings\n Giles filed this suit pro se on September 4, 2012. He named\nseveral defendants, nine of which remain in the case at this\nstage: S.A. Godinez (the Department’s acting director during\nthe relevant time period), Richard Birkey (the warden at Illi-\nnois River), Leonta Jackson (the assistant warden at Illinois\nRiver), Ron Zessin (the clinical services supervisor at Illinois\nRiver), Randy Pfister (the warden at Pontiac), Michael Lemke\n(the assistant warden at Pontiac), Marc Hodge (the warden at\nLawrence), Mark Storm (the assistant warden at Lawrence),\nand Randy Stevenson (the clinical services supervisor at\n\fNo. 15-3077 9\n\nLawrence).3 Giles asserted three claims under the Eighth\nAmendment, seeking to hold the defendants liable for these\nalleged constitutional violations pursuant to 42 U.S.C. § 1983.\nFirst, he asserted a claim of deliberate indiﬀerence to serious\nmedical needs based on his allegations of inadequate treat-\nment and delays in providing medication at Illinois River,\nPontiac, and Lawrence. Second, he asserted a conditions-of-\nconfinement claim based on his allegations of vermin infesta-\ntions and unsanitary conditions while in segregation at Pon-\ntiac and Lawrence. Third, he asserted a failure-to-protect\nclaim based on the February 2012 altercation.\n The case was referred to a U.S. magistrate judge in late\n2012, with Giles’s consent. The defendants moved for sum-\nmary judgment in June 2014. The magistrate judge issued a\nReport & Recommendation (R&R) and recommended grant-\ning summary judgment on the ground that Giles failed to\nshow deliberate indiﬀerence. After a de novo review of the\nR&R and Giles’s objections thereto, the district court adopted\nthe R&R in its entirety and granted summary judgment to the\ndefendants.\n Throughout the district court proceedings, Giles filed mul-\ntiple motions to appoint counsel. He first filed such a motion\non September 4, 2012. The magistrate judge denied the motion\nbecause Giles had not demonstrated that he had attempted to\nfind counsel on his own. On December 17, Giles filed a motion\nto reconsider his motion to appoint counsel after attempting\nunsuccessfully to find an attorney. The magistrate judge again\ndenied the motion, holding that the issues in the case were not\n\n\n 3 Five other defendants, also Department officials, were dismissed by\nthe district court in November 2012.\n\f10 No. 15-3077\n\nfactually complex because discovery had been limited at that\ntime to only the issue of exhaustion of administrative reme-\ndies. The court held that Giles was competent to litigate on his\nown at that stage. Giles filed another motion to appoint coun-\nsel on July 2, 2013. The court reaﬃrmed its previous decision\nthat Giles appeared competent to litigate the case at the cur-\nrent stage and stated that the issue of appointing counsel\nwould not be reconsidered until after the resolution of the ad-\nministrative remedies issue.\n In August 2013, after the defendants’ deadline to raise a\nfailure to exhaust administrative remedies defense had ex-\npired, Giles once again moved the court to appoint counsel\nfor him. The magistrate judge construed the motion as a mo-\ntion for recruitment of counsel and granted it, noting that the\ncourt has no authority to appoint counsel in § 1983 cases but\ncan seek to recruit a volunteer attorney. See Navejar v. Iyiola,\n718 F.3d 692, 696 (7th Cir. 2013). The district court circulated\na request for representation to the court’s list of “approxi-\nmately 50 licensed and registered attorneys that have indi-\ncated an interest in representing indigent litigants in this dis-\ntrict.” However, no attorneys were willing and available to\nrepresent Giles immediately.\n Giles moved in February 2014 for additional time to seek\ncounsel. Giles argued he needed legal assistance to “prepare\ndocuments, for dispositive motions, and discovery.” The\nmagistrate judge denied the motion because Giles had not\nspecified a deadline for the extension request, but he stated he\nwould continue to seek a volunteer to represent Giles. Giles\nfiled another motion to recruit counsel in May 2014. The mag-\nistrate judge denied the motion as moot, having already\ngranted the earlier motion to recruit, but once again solicited\n\fNo. 15-3077 11\n\nvolunteers from the pro bono list. Giles moved for recruit-\nment of counsel again in August 2014 while summary judg-\nment was pending. The magistrate judge again explained that\nthe motion to recruit counsel had previously been granted\nand that the court had done all it could to solicit a volunteer.\nGiles’s case was published to the list of volunteers a third\ntime. The magistrate judge encouraged Giles to continue liti-\ngating the case to the best of his ability. Finally, Giles filed a\nmotion to appoint counsel once again in December 2014,\nwhich the district court denied as moot in January 2015, stat-\ning that it had already granted Giles’s motion to recruit and\nthat Giles would be notified if an attorney volunteered to take\nthe case.\n Giles also moved multiple times, beginning on October 16,\n2014, to appoint an expert. The magistrate judge denied these\nmotions, stating “[t]he discovery period is closed, but the\nplaintiﬀ may later seek to appoint an expert for trial if the [de-\nfendants’] motion for summary judgment is denied.”\n Giles now appeals the district court’s grant of summary\njudgment on his claim for deliberate indiﬀerence to serious\nmedical needs and his conditions-of-confinement claim, as\nwell as the district court’s actions regarding his motions to re-\ncruit counsel and appoint an expert.\n II. Discussion\n We review the district court’s grant of summary judgment\nde novo. Knopick v. Jayco, Inc., 895 F.3d 525, 528 (7th Cir. 2018).\nA district court properly grants summary judgment where\nthere is no genuine dispute as to any material fact and the\nmoving party is entitled to judgment as a matter of law. FED.\nR. CIV. P. 56(a); Valenti v. Lawson, 889 F.3d 427, 429 (7th Cir.\n\f12 No. 15-3077\n\n2018). All justifiable inferences are drawn in favor of the non-\nmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255\n(1986). The non-movant must, however, present specific facts\nestablishing a material issue for trial, and any inferences must\nrely on more than mere speculation or conjecture. Aguilar v.\nGaston-Camara, 861 F.3d 626, 630–31 (7th Cir. 2017).\n The Eighth Amendment, applicable to the States through\nthe Fourteenth Amendment, prohibits the infliction of “cruel\nand unusual punishments.” U.S. CONST. amend. VIII; Estelle v.\nGamble, 429 U.S. 97, 101 (1976). The Supreme Court has inter-\npreted the Eighth Amendment to prohibit any punishments\n“which, although not physically barbarous, ‘involve the un-\nnecessary and wanton infliction of pain.’” Rhodes v. Chapman,\n452 U.S. 337, 346 (1981) (quoting Gregg v. Georgia, 428 U.S. 153,\n173 (1976)). Thus, the Eighth Amendment gives rise to consti-\ntutional claims by inmates alleging that the conditions of their\nconfinement violate this prohibition by imposing “the wanton\nand unnecessary infliction of pain.” See Rhodes, 452 U.S. at 347.\nThe Supreme Court has further established that prison oﬃ-\ncials impose wanton and unnecessary infliction of pain when\nthey are deliberately indiﬀerent to an inmate’s serious medi-\ncal needs. Estelle, 429 U.S. at 104. Giles here appeals summary\njudgment on both a claim of deliberate indiﬀerence to his se-\nrious medical needs as well as a conditions-of-confinement\nclaim. We discuss each in turn.\n A. Deliberate Indiﬀerence to Serious Medical Needs\n To establish an Eighth Amendment claim for deliberate in-\ndiﬀerence to serious medical needs, the plaintiﬀ must show\ntwo elements: one objective and one subjective. Whiting v.\nWexford Health Sources, Inc., 839 F.3d 658, 662 (7th Cir. 2016).\n“[T]he plaintiﬀ must prove that he suﬀered from ‘(1) an\n\fNo. 15-3077 13\n\nobjectively serious medical condition to which (2) a state oﬃ-\ncial was deliberately, that is subjectively, indiﬀerent.’” Id.\n(quoting Duckworth v. Ahmad, 532 F.3d 675, 679 (7th Cir.\n2008)). “[D]eliberate means more than negligent,” though\n“something less than purposeful.” Duckworth, 532 F.3d at 679.\nWe have described this subjective element as “’a suﬃciently\nculpable state of mind,’ something akin to recklessness.”\nArnett v. Webster, 658 F.3d 742, 751 (7th Cir. 2011) (quoting\nJohnson v. Snyder, 444 F.3d 579, 585 (7th Cir. 2006), overruled on\nother grounds by Hill v. Tangherlini, 724 F.3d 965, 967 n.1 (7th\nCir. 2013)). Although the inmate must demonstrate deliberate\nindiﬀerence, he “is not required to show that he was literally\nignored.” Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005)\n(quoting Sherrod v. Lingle, 223 F.3d 605, 611 (7th Cir. 2000)).\n Regarding the objective element of his claim, Giles has\nclearly met his burden. His schizoaﬀective disorder diagno-\nsis, his symptoms, and his multiple prescriptions for psycho-\ntropic medications firmly establish that he suﬀered from an\nobjectively serious medical condition. See id. (“A serious med-\nical condition is one that has been diagnosed by a physician\nas mandating treatment or one that is so obvious that even a\nlay person would perceive the need for a doctor’s attention.”).\nGiles’s claim hinges, therefore, on whether he has shown the\ndefendants possessed the “suﬃciently culpable state of\nmind” necessary to establish the subjective element of delib-\nerate indiﬀerence. The district court held that Giles failed to\nmeet this burden. We agree.\n Giles cannot establish the subjective element of his claim\nbecause the defendants are all non-medical oﬃcials who rea-\nsonably relied on the judgment of medical professionals. We\nhave long recognized that the division of labor within a prison\n\f14 No. 15-3077\n\nnecessitates that non-medical oﬃcials may reasonably defer\nto the judgment of medical professionals regarding inmate\ntreatment. “If a prisoner is under the care of medical experts\n… a non-medical prison oﬃcial will generally be justified in\nbelieving that the prisoner is in capable hands.” Id. at 656\n(quoting Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004)). As\nthe Third Circuit has held, “absent a reason to believe (or ac-\ntual knowledge) that prison doctors or their assistants are\nmistreating (or not treating) a prisoner, a non-medical prison\noﬃcial … will not be chargeable with the Eighth Amendment\nscienter requirement of deliberate indiﬀerence.” Spruill, 372\nF.3d at 236.\n In Hayes v. Snyder, 546 F.3d 516, 527–28 (7th Cir. 2008), we\naﬃrmed summary judgment for non-medical prison oﬃcials\nwho relied on the professional judgment of prison medical\nstaﬀ. Like Giles, the inmate in Hayes sent several letters and\nfiled multiple grievances alleging he was receiving inade-\nquate treatment for his objectively serious medical condition.\nId. at 526. Although the non-medical oﬃcials did not ignore\nthe inmate’s grievances entirely, they did not investigate fur-\nther than the medical staﬀ’s reports and summaries, and oth-\nerwise simply referred the complaints to the medical staﬀ. Id.\nat 527. We held that the non-medical oﬃcials did not have\n“any duty to do more than they did, in light of their\nknowledge of the situation.” Id. They “were entitled to rely on\nthe professional judgment of medical prison oﬃcials” and\n“nothing in [the medical] reports made it obvious that [the in-\nmate] might not be receiving adequate care.” Id. at 527–28.\n A review of the record demonstrates that throughout his\nvarious stints at Illinois River, Stateville, Pontiac, and Law-\nrence, Giles was receiving regular medical attention from\n\fNo. 15-3077 15\n\npsychologists, psychiatrists, and mental health professionals.\nAlthough the record does not contain detailed information\nabout what the grievance procedures were at each facility, it\ndoes contain evidence that several of his grievances were sub-\njected to emergency review. Furthermore, Giles’s appeals\nwere reviewed by the ARB, which found his complaints to be\nwithout merit upon investigation. Giles has not presented ev-\nidence that his grievances were ignored or mishandled. Nor\nwas there an indication from his medical records that he was\nnot receiving adequate care. In short, the non-medical oﬃcials\nrelied on the medical professionals to provide proper treat-\nment, and there was nothing to give notice to the oﬃcials of a\nneed to intervene.\n Giles asserts the defendants were deliberately indiﬀerent\nby allowing him to “go on and oﬀ of his medication many\ntimes” despite knowing his health condition required contin-\nuous treatment. However, the record does not support this as-\nsertion. Giles’s medications were discontinued in July 2010\nwhile still at Dixon pursuant to a decision made by medical\nprofessionals. Several weeks later, after being transferred first\nto Illinois River and then to Stateville, Giles was placed back\non medications soon after he requested them. Although there\nwere other brief delays in his receipt of medication, when he\nbrought these to the medical professionals’ attention his con-\ncerns were addressed, or else it was determined after a review\nof all available information that he was properly receiving his\nmedication as prescribed. Even during one of the periods\nwhere Giles alleged he was not receiving his medication, a\npsychiatrist reported after an extended interview that Giles’s\ndemeanor was good, he was coherent and alert, and he dis-\nplayed no acute distress or agitation. Such reports from the\nmedical professionals charged with Giles’s care defy the\n\f16 No. 15-3077\n\nconclusion that the non-medical defendants knew of and dis-\nregarded an excessive risk to Giles’s health and safety.\n The most serious lapse in treatment was the two-week pe-\nriod in November 2010 when he was transferred back to Illi-\nnois River from Stateville. This lapse was caused by a failure\nto include his current prescriptions on his transfer summary.\nWhile this was certainly a concerning oversight, it does not\nmeet the standard of deliberate indiﬀerence: a knowing dis-\nregard of an excessive risk to Giles’s health and safety. As we\nhave noted before, “deliberate means more than negligent.”\nDuckworth, 532 F.3d at 679. Giles’s medication was re-pre-\nscribed as soon as he was examined by a psychologist at Illi-\nnois River, who requested and reviewed Giles’s medical rec-\nords from Stateville.\n No reasonable jury could find that the defendants knew of\nand disregarded an excessive risk to Giles’s health and safety,\nand thus summary judgment on this claim was appropriate.\n B. Conditions of Confinement\n Giles also appeals the grant of summary judgment on his\nconditions-of-confinement claim. Although the complaint fo-\ncused on specific conditions to which Giles was subjected\nwhile in segregation (such as vermin infestations, filthiness,\nand lengthy periods of isolation), on appeal Giles has re-\nframed the violation as being the combined eﬀect that these\nconditions had on his mental health.4 He asserts his place-\nment in segregation subjected him to conditions which exac-\nerbated his symptoms, or which were more diﬃcult for him\n\n 4 Giles’s counsel explained at oral argument “what’s happening to his\n\nmental health while he’s in segregation is the conditions of confinement\nviolation.”\n\fNo. 15-3077 17\n\nto cope with due to his symptoms. He argues that even\nthough segregation placement and the conditions of his con-\nfinement may not have been cruel and unusual in the case of\nan ordinary inmate, they amounted to cruel and unusual\ntreatment in his case given their combined eﬀect on his illness.\n The Eighth Amendment prohibits the States from subject-\ning prisoners to conditions of confinement amounting to cruel\nand unusual punishment. Rhodes, 452 U.S. at 345–47. Accord-\ning to the Supreme Court, however, “extreme deprivations\nare required to make out a conditions-of-confinement claim.”\nHudson v. McMillian, 503 U.S. 1, 9 (1992). Whether conditions\nof confinement are cruel and unusual must be judged in ac-\ncordance with contemporary standards of decency. Id. at 8;\nRhodes, 452 U.S. at 346. If under contemporary standards the\nconditions cannot be said to be cruel and unusual, then they\nare not unconstitutional, and “[t]o the extent that such condi-\ntions are restrictive and even harsh, they are part of the pen-\nalty that criminal oﬀenders pay for their oﬀenses against so-\nciety.” Rhodes, 452 U.S. at 347.\n As with a claim for deliberate indiﬀerence to serious med-\nical needs, a conditions-of-confinement claim includes an ob-\njective and a subjective component. Isby v. Brown, 856 F.3d\n508, 521 (7th Cir. 2017). The plaintiﬀ must first establish “an\nobjective showing that the conditions are suﬃciently seri-\nous—i.e., that they deny the inmate ‘the minimal civilized\nmeasure of life’s necessities,’ creating an excessive risk to the\ninmate’s health and safety.” Id. (quoting Rhodes, 452 U.S. at\n347) (internal citations omitted). The plaintiﬀ must next estab-\nlish “a subjective showing of a defendant’s culpable state of\nmind.” Id. Once again, the state of mind necessary to establish\nliability is deliberate indiﬀerence to the inmate’s health or\n\f18 No. 15-3077\n\nsafety. Estate of Novack ex rel. Turbin v. Cty. of Wood, 226 F.3d\n525, 529 (7th Cir. 2000).\n Giles attempts to satisfy the objective element by arguing\nthat placing a mentally ill inmate in segregation—under con-\nditions that exacerbate his symptoms or with which he has\ndiﬃculty coping due to his symptoms—is an objectively seri-\nous condition creating an excessive risk to his health and\nsafety. We have indeed recognized that prolonged segregated\nconfinement may constitute an Eighth Amendment violation\nin some instances. See Isby, 856 F.3d at 521 (quoting Rice ex rel.\nRice v. Corr. Med. Servs., 675 F.3d 650, 666 (7th Cir. 2012)). We\nhave also held that the aggregate eﬀect of a multitude of indi-\nvidual conditions may constitute a violation even if each in-\ndividual condition could not establish a violation standing on\nits own. Id. at 522. However, this only occurs when the condi-\ntions “have a mutually enforcing eﬀect that produces the dep-\nrivation of a single, identifiable human need such as food,\nwarmth, or exercise.” Id. (quoting Wilson v. Seiter, 501 U.S. 294,\n304 (1991)). The core issue is whether the conditions deprived\nthe plaintiﬀ of a “minimal civilized measure of life’s necessi-\nties.” Rice, 675 F.3d at 664–65.\n While we do not deny that Giles experienced harsh condi-\ntions in segregation, the record does not support a finding\nthat he was deprived of the minimal civilized measure of life’s\nnecessities, even considering the eﬀects on his mental condi-\ntion. He was regularly evaluated by mental health profession-\nals at all facilities, and they repeatedly determined that his\ncondition did not contraindicate continued segregation. And\non the occasion in November 2011 when a mental health pro-\nfessional determined that his mental condition was being ex-\nacerbated by his cell assignment, he was reassigned and\n\fNo. 15-3077 19\n\nmoved the next day, checked on less than a week later, and\nwas found to have notably improved. Giles has therefore not\nestablished the objective element of his claim.\n Even if Giles could establish an objectively serious condi-\ntion, he ultimately fails to establish the necessary subjective\ncomponent of his claim: the defendants’ culpable state of\nmind. Once again, the defendants relied on the judgment of\nthe medical professionals into whose care Giles was en-\ntrusted. No reasonable jury could find that the defendants\nconsciously disregarded an excessive risk to Giles’s health by\nkeeping him in segregation when the mental health profes-\nsionals continually reported it was appropriate to do so.\n Since Giles failed to establish both the objective and sub-\njective elements of his claim, summary judgment in favor of\nthe defendants was proper.\n C. Motions to Recruit Counsel and Appoint Expert\n The final issue on appeal concerns the district court’s han-\ndling of Giles’s motions to appoint or recruit counsel and to\nappoint an expert. We review the district court’s decisions on\nthese motions for abuse of discretion. Pruitt v. Mote, 503 F.3d\n647, 649, 658 (7th Cir. 2007) (en banc) (reviewing a decision on\na motion to recruit counsel for abuse of discretion); Ledford v.\nSullivan, 105 F.3d 354, 358 (7th Cir. 1997) (holding that a deci-\nsion on a motion for appointment of an expert witness is re-\nviewed for abuse of discretion). In reviewing for abuse of dis-\ncretion, we do not substitute our own judgment for the dis-\ntrict court’s; rather, the “decision must strike us as fundamen-\ntally wrong for an abuse of discretion to occur.” Ladien v.\nAstrachan, 128 F.3d 1051, 1056 (7th Cir. 1997).\n\f20 No. 15-3077\n\n We note at the outset of our discussion that “[t]here is no\nright to court-appointed counsel in federal civil litigation.”\nOlson v. Morgan, 750 F.3d 708, 711 (7th Cir. 2014). However,\nthe district court does have the discretion to recruit a volun-\nteer to represent a plaintiﬀ who cannot otherwise aﬀord coun-\nsel. Navejar, 718 F.3d at 696. The court “must rely on the gen-\nerosity of lawyers to volunteer their time and skill on behalf\nof indigent civil parties.” Wilborn v. Ealey, 881 F.3d 998, 1008\n(7th Cir. 2018).\n Evaluating whether to recruit counsel involves a two-step\nprocess. First, the court must determine if the plaintiﬀ made\na reasonable attempt to secure counsel on his own. Navejar,\n718 F.3d at 696. Next, the court must examine “whether the\ndiﬃculty of the case—factually and legally—exceeds the par-\nticular plaintiﬀ’s capacity as a layperson to coherently present\nit.” Id. (quoting Pruitt, 503 F.3d at 655). Even where the court\ndecides to recruit a volunteer, however, it does not have “an\nindefinite commitment to search until a volunteer is found.”\nWilborn, 881 F.3d at 1008.\n The insuﬃcient number of volunteer attorneys in some of\nour districts limits courts’ ability to locate representation for\nindigents. See James v. Eli, 889 F.3d 320, 330–31 (7th Cir. 2018).\nThis case presents the question of what a court should do in\nthe event a court determines that the case’s complexity ap-\npears to exceed the plaintiﬀ’s capacity to litigate his claims\nand the court exercises discretion to seek a volunteer attorney\nbut is unable to find one.\n We considered a similar question in Wilborn v. Ealey, 881\nF.3d 998 (7th Cir. 2018). In that case, the plaintiﬀ filed multiple\nmotions to recruit counsel. The district court eventually\ngranted one such motion and spent several months searching.\n\fNo. 15-3077 21\n\nAfter contacting over four hundred attorneys, the court iden-\ntified a volunteer. This success was short-lived, though. The\nattorney had a scheduling conflict, which ultimately led the\ncourt to grant his motion to withdraw. Despite this change,\nthe plaintiﬀ did not file another motion to recruit counsel. The\ncourt oﬀered to postpone the trial, but the plaintiﬀ declined\nthe court’s oﬀer. As a result, the court allowed the plaintiﬀ to\nproceed to trial pro se. Based on those facts, we decided that\nthe court’s eﬀorts were “more than enough to satisfy any duty\nto the indigent plaintiﬀ,” and we held that the court did not\nabuse its discretion in allowing the plaintiﬀ to try his case pro\nse. Id. at 1008.\n Here too, we conclude that the district court fulfilled its\nobligation to Giles by circulating a request for representation\nto the court’s list of approximately fifty attorneys on three sep-\narate occasions over the course of one year. Yet it is somewhat\nconcerning that at some point the court determined further\nsearching would be futile and, without communicating that\nupdate to Giles, decided it was appropriate to resolve the\npending motion for summary judgment.\n Acknowledging that “[t]here are limits to what a court\nmust do after deciding to recruit counsel,” id., in cases such as\nthis—where the complexities of litigating are high, having\ncounsel is increasingly important, and a district court has con-\ncluded that it is unable to locate a volunteer attorney—it\nwould be advisable for a judge to communicate with the\nplaintiﬀ and consider oﬀering a reasonable continuance be-\nfore proceeding to rule on a dispositive motion. The addi-\ntional time after a court has exhausted its search eﬀorts might\naﬀord a limited opportunity for indigent litigants to seek\n\f22 No. 15-3077\n\ncounsel on their own, or at a minimum, conduct some prelim-\ninary discovery.\n The district court also denied Giles’s motion to appoint an\nexpert witness, holding that an expert was not necessary be-\nfore summary judgment but stating that Giles could move to\nappoint an expert for trial if his case survived summary judg-\nment. A court may, in its discretion, appoint an expert witness\nwhere the expert’s “specialized knowledge will assist the\ntrier-of-fact to understand the evidence or decide a fact in is-\nsue.” Ledford, 105 F.3d at 358–59. The district court determined\nGiles’s claims failed as a matter of law to show the defendants\nknowingly disregarded a substantial risk of serious harm to\nhim. This decision did not hinge on specialized knowledge or\nfact-finding. Instead, the court recognized Giles had received\nconsistent treatment from medical professionals and the de-\nfendants had relied on the medical judgment of those profes-\nsionals. The grant of summary judgment was based on Giles’s\nfailure to establish the defendants’ suﬃciently culpable state\nof mind, not on a technical analysis of the medical treatment\nhe received or the suﬃciency of that treatment. Thus, the dis-\ntrict court acted fully within its discretion by denying the mo-\ntion to appoint an expert witness at that stage of litigation.\n III. Conclusion\n Prison is, by its very nature, an unpleasant place to be, and\nwe have no doubt that Giles’s objectively serious condition\nand symptoms contributed to his overall discomfort. The dis-\npositive defect of Giles’s case, however, is that the defendants\nagainst whom he has filed this action are non-medical oﬃcials\nwho were entitled by law to rely on the judgment of the med-\nical professionals under whose care Giles was placed. Section\n1983 does not create a system of vicarious liability. The\n\fNo. 15-3077 23\n\ndefendants cannot be held liable unless they were aware of\nfacts from which a reasonable inference could be drawn that\nGiles was subjected to a substantial risk of serious harm, drew\nsuch an inference, and yet did not intervene. Based on this\nrecord, we hold that Giles has failed to make that showing,\nand therefore has failed as a matter of law to establish delib-\nerate indiﬀerence. We AFFIRM the judgment of the district\ncourt.\n[END_CASE]", "role": "user" } ]
4,585,621		Aleksey Ruderman v. Matthew G. Whitaker	2019-01-29	17-1689	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before WOOD, Chief Judge, and EASTERBROOK and BARRETT, Circuit Judges.", "parties": "", "opinions": [{"author": "BARRETT, Circuit Judge", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________ \nNo. 17‐1689 \nALEKSEY ARKADYEVICH RUDERMAN, \n Petitioner, \n v. \n\nMATTHEW G. WHITAKER, \nActing Attorney General of the United States, \n Respondent. \n ____________________ \n\n Petition for Review of an Order of \n the Board of Immigration Appeals. \n No. A076‐054‐163 \n ____________________ \n\n ARGUED FEBRUARY 20, 2018 — DECIDED JANUARY 29, 2019 \n ____________________ \n\n Before WOOD, Chief Judge, and EASTERBROOK and BARRETT, \nCircuit Judges. \n BARRETT, Circuit Judge. Aleksey Arkadyevich Ruderman is \nseeking to avoid removal to Belarus, his native country. An \nimmigration judge ruled that Ruderman was inadmissible \nunder the Immigration and Nationality Act, 8 U.S.C. \n§ 1182(a)(2)(B), and thus subject to removal. The judge also \n\f2 No. 17‐1689 \n\nheld that Ruderman was not eligible for a waiver of inadmis‐\nsibility and adjustment of status, cancellation of removal, asy‐\nlum, withholding of removal, or protection under the Con‐\nvention Against Torture. The Board of Immigration Appeals \nagreed. In particular, it held that Ruderman had not raised \nany meaningful challenge to his inadmissibility determina‐\ntion and that even if the immigration judge had applied the \nwrong legal standard to determine that Ruderman was ineli‐\ngible for a waiver of inadmissibility, her alternative discre‐\ntionary denial made the error harmless. \n Ruderman petitions us for review of those holdings, along \nwith others reached by the immigration judge and aﬃrmed \nby the Board. While we largely agree with the Board’s analy‐\nsis, we hold that it was flawed with respect to one issue: the \nquestion whether Ruderman is statutorily inadmissible. We \ntherefore grant Ruderman’s petition and remand for the \nBoard to revisit that question and, if necessary, to decide \nwhether Ruderman is eligible for a waiver. \n I. \n Ruderman moved to the United States when he was nine‐\nteen to escape discrimination and violence directed at him on \naccount of his Jewish heritage. He moved from his native land \nof Belarus, a former Soviet republic that declared independ‐\nence during his childhood. In Belarus, Ruderman and his fam‐\nily were targeted for abuse by Neo‐Nazis and pro‐Russia ad‐\nvocates who would shout profanities at them, perform the \nNazi salute, leave anti‐Jewish propaganda in their mailbox, \nand throw bottles and stones at their home. \n Ruderman received even worse treatment at school. His \n(sometimes much older) classmates would bully and beat him \n\fNo. 17‐1689 3 \n\nand the handful of other Jewish students. The head of the \nschool and the police were alerted but did nothing to address \nthe situation. One particularly severe attack resulted in \nstitches and a permanent scar, while another resulted in two \nbroken wrists that have bothered him ever since. \n After attackers broke Ruderman’s wrists, his parents sent \nhim to a private school where he would be safer. His time \nthere was cut short, however, by his father’s death. Arkady \nRuderman, a documentary filmmaker, died while filming a \npiece on government corruption in Tajikistan—another for‐\nmer Soviet republic. Although government oﬃcials reported \nthat he was killed in a car accident, Arkady had previously \nbeen detained and battered by the KGB, and eyewitnesses \nsaid that they saw bullet holes in his dead body. Those reports \ncould not be confirmed because the police ordered that \nArkady’s casket remain closed at his funeral—and then at‐\ntended the event to make sure that it did. \n Without Arkady’s income, Ruderman’s family could no \nlonger aﬀord his private school tuition, so Ruderman enrolled \nat a diﬀerent public school where he was subjected to familiar \nanti‐Semitic verbal abuse. He became so afraid that in the \nninth grade he stopped attending classes entirely and later \ntransferred to a technical school. There, in spite of continued \nverbal abuse, he performed well and graduated with high \ngrades. Once out of school, however, he found that his Jewish \nheritage made it diﬃcult for him to get a job. \n Fed up with the abuse and intolerance, Ruderman fled to \nthe United States in 2001 under a provision known as the \nLautenberg Amendment, which lowers barriers to immigra‐\ntion for certain former soviet nationals. See Pub. L. No. 101‐\n167, tit. V, §§ 599D–E, 103 Stat. 1195, 1261–64 (1989) (codified \n\f4 No. 17‐1689 \n\nas amended at 8 U.S.C. § 1157 note, § 1255 note). His life in \nAmerica got oﬀ to a rocky start; shortly after arriving he was \nconvicted of driving under the influence of alcohol and sen‐\ntenced to court supervision. But over the next several years, \nhe found work as a cab driver and a security oﬃcer, met his \nfuture wife Elena, and moved into an apartment with her and \nher two children in Milwaukee. \n In 2008, Ruderman struck and killed a pedestrian with his \nvehicle while driving drunk. He accepted responsibility, \npleaded guilty to homicide by negligent operation of a vehi‐\ncle, and was convicted and sentenced to five years in prison. \nFollowing his release in 2013, he worked at a transportation \ncompany—until U.S. Customs and Immigration Services de‐\nnied his adjustment‐of‐status application, causing his work \npermit to expire. \n In January of 2016, the government detained Ruderman \nand began removal proceedings. The immigration judge ulti‐\nmately concluded that Ruderman was statutorily inadmissi‐\nble because of his two convictions. The judge also denied \nRuderman’s applications for a waiver of inadmissibility, ad‐\njustment of status under the Lautenberg Amendment, cancel‐\nlation of removal, asylum, withholding of removal, and pro‐\ntection under the Convention Against Torture. \n Ruderman appealed the immigration judge’s decision in \nan extensive pro se brief and later in a second brief filed by \npro bono counsel. The counseled brief supplemented certain \narguments that Ruderman had made in his initial brief but \nconceded others. Significantly, the later brief conceded that \n“[Ruderman’s] convictions for two crimes with an aggregate \nprison sentence of five years make him ‘inadmissible.’” That \nconcession contradicted Ruderman’s pro se argument that the \n\fNo. 17‐1689 5 \n\ninadmissibility statute applies only when two or more convic‐\ntions each result in a sentence to confinement, and so Ruder‐\nman’s sole sentence to confinement—which imposed five \nyears in prison—did not make him inadmissible. \n The Board dismissed Ruderman’s appeal. First, it noted in \npassing that Ruderman “ha[d] not raised any meaningful \nchallenges” to his inadmissibility, and thus the issue was \n“waived.” Second, the Board adopted and aﬃrmed the immi‐\ngration judge’s denial of Ruderman’s applications for cancel‐\nlation of removal, withholding of removal, and protection un‐\nder the Convention Against Torture. Finally, the Board af‐\nfirmed the denial of Ruderman’s request for a waiver of inad‐\nmissibility and adjustment of status under the Lautenberg \nAmendment. The Board bypassed Ruderman’s argument that \nthe immigration judge had applied the wrong standard to de‐\ntermine whether Ruderman was eligible for a waiver of inad‐\nmissibility and instead aﬃrmed the judge’s conclusion that, \neven if Ruderman were eligible to be considered for a waiver, \nshe would exercise her discretion to deny him relief. \n II. \n Ruderman petitions us for review of the Board’s decision. \nHe takes issue with the Board’s conclusion that he waived his \nopportunity to challenge his inadmissibility, and he argues \nthat the application of the wrong standard for determining his \neligibility for a waiver of inadmissibility contaminated the im‐\nmigration judge’s discretionary denial of a waiver. He also \nclaims that the judge erred by holding—and the Board erred \nby aﬃrming—both that his negligent homicide was “particu‐\nlarly serious” and that he failed to show a “substantial risk” \nthat he would be tortured in Belarus. \n\f6 No. 17‐1689 \n\n Because the Board provided its own analysis and also af‐\nfirmed the immigration judge’s decision, we review both de‐\ncisions. Sobaleva v. Holder, 760 F.3d 592, 596 (7th Cir. 2014). \n A. \n Ruderman argued in his pro se brief that he is not inad‐\nmissible under § 212(a)(2)(B) of the Immigration and Nation‐\nality Act, 8 U.S.C. § 1182(a)(2)(B), because he has only ever re‐\nceived one sentence to confinement. The Act states that an im‐\nmigrant is inadmissible to receive a visa or to be admitted to \nthe United States if he is convicted of “2 or more of‐\nfenses … for which the aggregate sentences to confinement \nwere 5 years or more.” Id. Ruderman interprets “sentences to \nconfinement” to require more than one custodial sentence. He \nsupports this reading by pointing to the word “aggregate,” \nwhich he argues would be superfluous if the statute could be \nsatisfied by a single sentence to confinement. Id. Because his \nfirst conviction—for driving under the influence—did not re‐\nsult in confinement, he concludes that he is not inadmissible. \nHis pro bono counsel, however, conceded Ruderman’s inad‐\nmissibility in a later‐filed brief. \n The Board did not address Ruderman’s inadmissibility ar‐\ngument, instead concluding that he had failed to raise any \nmeaningful challenges to his inadmissibility and so had \nwaived the issue. It appears likely that the Board reached that \nconclusion on the basis of Ruderman’s counsel’s concession, \nbecause Ruderman did raise the argument in several places—\nincluding his notice of appeal and pro se brief, both of which \nremained on the record. But the Board’s opinion did not oth‐\nerwise indicate whether the counseled brief superseded the \npro se brief. \n\fNo. 17‐1689 7 \n\n A later‐in‐time concession waives an issue in federal \ncourt—but we do not know whether that is true before the \nBoard as well. On this record it is unclear why the Board con‐\ncluded that Ruderman waived his challenge, and the Board’s \nfailure to explain inhibits our review of the issue. See SEC v. \nChenery Corp., 332 U.S. 194, 196 (1947) (“[A] reviewing court, \nin dealing with a determination or judgment which an admin‐\nistrative agency alone is authorized to make, must judge the \npropriety of such action solely by the grounds invoked by the \nagency. If those grounds are inadequate or improper, the \ncourt is powerless to aﬃrm the administrative action by sub‐\nstituting what it considers to be a more adequate or proper \nbasis.”). We grant Ruderman’s petition and remand this issue \nto the Board to clarify why it did not address Ruderman’s in‐\nadmissibility argument. \n B. \n If on remand the Board confirms that Ruderman is inad‐\nmissible, his application for a waiver of inadmissibility should \nbe reviewed under the correct legal standard. The immigra‐\ntion judge concluded that Ruderman was statutorily ineligi‐\nble for a waiver because he did not show that his removal \nwould cause “extreme hardship” to his U.S.‐citizen wife. 8 \nU.S.C. § 1182(h)(1)(B). When a waiver is sought in conjunction \nwith an application for a status adjustment under the Lauten‐\nberg Amendment, however, there is no threshold eligibility \nrequirement; a waiver may be granted simply “for humani‐\ntarian purposes, to assure family unity, or when it is other‐\nwise in the public interest.” 8 U.S.C. 1255 note; see also 8 C.F.R. \n§ 1245.7(d). The immigration judge erred by not considering \nRuderman’s application under this less stringent standard. \n\f8 No. 17‐1689 \n\n The Board concluded that this error was harmless because \nthe immigration judge held in the alternative that she would \nexercise her discretion to deny Ruderman relief if he were el‐\nigible to be considered for it. The assumption seems to be that \nthe judge would have made the same discretionary denial of \na waiver under the Lautenberg Amendment as she made un‐\nder § 1182(h). But, as we have already noted, the former pro‐\nvides discretion to grant a waiver for humanitarian purposes, \nto assure family unity, or when it is otherwise in the public \ninterest; the latter entails a potentially more complex consid‐\neration of the ground for exclusion at issue, past immigration \nviolations or criminal history, evidence of rehabilitation, gen‐\neral evidence of good or bad character, strength of family ties, \nduration of residence in the United States, and evidence of \nvalue to the community. See In re Mendez‐Moralez, 21 I. & N. \nDec. 296, 301 (BIA 1996). Because these statutes, along with \nthe cases and regulations interpreting them, articulate distinct \nfactors to be considered in deciding whether to grant a discre‐\ntionary waiver of inadmissibility, the Board cannot simply \nsubstitute one standard for another and assume that the out‐\ncome would be the same. If the Board confirms Ruderman’s \ninadmissibility on remand, it should consider his application \nfor a waiver under the proper framework. \n C. \n Ruderman’s other arguments go nowhere. First, he claims \nthat he is eligible for asylum and withholding of removal be‐\ncause he did not commit a “particularly serious crime.” 8 \nU.S.C. §§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii). Ruderman com‐\nmitted homicide by negligent operation of a vehicle, Wis. Stat. \n§ 940.10(1); he argues that Congress did not intend for crimi‐\n\fNo. 17‐1689 9 \n\nnal negligence like his to qualify as particularly serious. Gen‐\nerally, classification of a crime as “particularly serious” is \nwithin the discretion of the Attorney General—exercised here \nby the Board. Petrov v. Gonzales, 464 F.3d 800, 802 (7th Cir. \n2006). Our review of these classifications is confined to consti‐\ntutional and legal questions. 8 U.S.C. § 1252(a)(2); see also Es‐\ntrada‐Martinez v. Lynch, 809 F.3d 886, 892 (7th Cir. 2015). And \nwhen those legal questions implicate ambiguous statutory \nprovisions, we give deference. See Chevron U.S.A., Inc. v. Nat. \nRes. Def. Council, Inc., 467 U.S. 837, 842–44 (1984). \n We considered the meaning of “particularly serious \ncrime” in some depth in Ali v. Achim, 468 F.3d 462 (7th Cir. \n2006). In that case, the petitioner argued that the Board could \nnot hold that his conviction for “substantial battery with a \ndangerous weapon,” a nonaggravated felony, was a particu‐\nlarly serious crime under § 1158(b)(2) and § 1231(b)(3) be‐\ncause it did not fall within the two categories of crimes iden‐\ntified as per se “particularly serious” in § 1158(b)(2): aggra‐\nvated felonies and other crimes that the Attorney General des‐\nignates by regulation. Id. at 468–69. We disagreed, explaining \nthat the presence of these categories does not cabin the \nBoard’s discretion to determine that nonaggravated felonies \nare particularly serious on a case‐by‐case basis. Id. at 469. In \nthe same way, the Board is not precluded from determining \nthat some crimes of negligence are particularly serious. \n Nor does the Immigration and Nationality Act’s separate \ndefinition of “serious criminal offense” undermine the \nBoard’s interpretation. The Act identifies “driving while in‐\ntoxicated or under the influence of alcohol” as a serious crim‐\ninal offense if it “involves personal injury to another.” 8 U.S.C. \n§ 1101(h)(3). Ruderman argues that “particularly serious \n\f10 No. 17‐1689 \n\ncrime” must be interpreted to require more. Maybe so. But \neven if he’s right, criminally negligent homicide entails more \nthan mere “personal injury,” so the argument is a dead end. \n Finally, even if § 1158(b)(2)(A)(ii) and § 1231(b)(3)(B)(ii) \nwere ambiguous as to whether crimes of negligence could be \n“particularly serious,” Ruderman has not shown that the \nBoard’s interpretation is too unreasonable to merit deference \nunder Chevron. See Ali, 468 F.3d at 470. Nor has he shown that \nthe Board’s interpretation is so likely to conflict with the Con‐\nstitution or international law that we need to consider \nwhether some other interpretation is warranted. \n D. \n Finally, Ruderman contends that the Board should have \ngranted him protection under the Convention Against Tor‐\nture, 8 C.F.R. §§ 1208.16–18. The Convention forbids the re‐\nturn of “a person to another State where there are substantial \ngrounds for believing that he would be in danger of being \nsubjected to torture.” Convention Against Torture and Other \nCruel, Inhuman or Degrading Treatment or Punishment art. \n3(1), Dec. 10, 1984, S. Treaty Doc. No. 100‐20 (1990), 1465 \nU.N.T.S. 85. Federal regulations define torture as requiring \n“the consent or acquiescence of a public oﬃcial.” 8 C.F.R \n§ 1208.18(a)(1). Immigration judges must withhold or defer \nremoval if an applicant demonstrates that “it is more likely \nthan not that he or she would be tortured if removed.” 8 \nC.F.R. § 1208.16(c)(2). We have explained that “more likely \nthan not” means that there is a “substantial risk” that the alien \nwill be tortured. Rodriguez‐Molinero v. Lynch, 808 F.3d 1134, \n1135–36 (7th Cir. 2015); see also Perez‐Montes v. Sessions, 880 \nF.3d 849, 850 (7th Cir. 2018). \n\fNo. 17‐1689 11 \n\n Ruderman argues that the immigration judge both misun‐\nderstood and misapplied the “substantial risk” standard. But \nthere is no evidence of the former; the immigration judge \ncited our decision in Rodriguez‐Molinero and proceeded to an‐\nalyze whether there was a substantial risk that Ruderman \nwould be subject to torture inflicted by or with the consent of \na public oﬃcial if he returned to Belarus. See 8 C.F.R. \n§ 1208.18(a)(1)–(2). And Ruderman fails to establish the latter. \nWe review the Board’s conclusion that there was no substan‐\ntial risk of torture under the “highly deferential substantial \nevidence test,” which mandates denying the petition unless \n“the record evidence compels a contrary conclusion.” Lopez v. \nLynch, 810 F.3d 484, 492 (7th Cir. 2016) (citation omitted). \n The record evidence does not compel a contrary conclu‐\nsion. To be sure, certain findings from the immigration judge \ngive us pause. For one, the judge concluded that there was no \nsubstantial risk of torture for Jews in Belarus because, despite \n“widespread anti‐Semitism in Belarus,” incidents targeting \nJews have been declining. While it is true that the raw number \nof anti‐Jewish incidents in Belarus has declined, so has the \nJewish population. In this context, an absolute decrease in in‐\ncidents does not necessary equate to a relative increase in \nsafety for any individual. Nor does the evidence of Ruder‐\nman’s mother’s safe travel to and from Belarus mean that \nRuderman will be equally safe. His mother has a Christian \nname that is not associated with her late husband, whereas \nRuderman’s patronymic clearly signals that he is both Jewish \nand the son of a known political activist whom the KGB may \nhave tortured and killed. But on the other hand, there is evi‐\ndence that Ruderman became less susceptible to physical at‐\ntacks as he grew and became better able to defend himself, \nthat no one in his family has been threatened in Belarus, and \n\f12 No. 17‐1689 \n\nthat he lived in Belarus for eight years following his father’s \ndeath without any threat of torture on account of his relation‐\nship to his father. Considering all the evidence, the record \ndoes not compel the conclusion that there is a substantial risk \nthat Ruderman would be tortured if he returned to Belarus. \n * * * \n Ruderman’s petition for review is GRANTED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4362874/", "author_raw": "BARRETT, Circuit Judge"}]}	WOOD	EASTERBROOK	BARRETT	1		{"WOOD": ", Chief", "EASTERBROOK": ", Circuit", "BARRETT": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4585621/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Aleksey Ruderman v. Matthew G. Whitaker\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-29\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________ \nNo. 17‐1689 \nALEKSEY ARKADYEVICH RUDERMAN, \n Petitioner, \n v. \n\nMATTHEW G. WHITAKER, \nActing Attorney General of the United States, \n Respondent. \n ____________________ \n\n Petition for Review of an Order of \n the Board of Immigration Appeals. \n No. A076‐054‐163 \n ____________________ \n\n ARGUED FEBRUARY 20, 2018 — DECIDED JANUARY 29, 2019 \n ____________________ \n\n Before WOOD, Chief Judge, and EASTERBROOK and BARRETT, \nCircuit Judges. \n BARRETT, Circuit Judge. Aleksey Arkadyevich Ruderman is \nseeking to avoid removal to Belarus, his native country. An \nimmigration judge ruled that Ruderman was inadmissible \nunder the Immigration and Nationality Act, 8 U.S.C. \n§ 1182(a)(2)(B), and thus subject to removal. The judge also \n\f2 No. 17‐1689 \n\nheld that Ruderman was not eligible for a waiver of inadmis‐\nsibility and adjustment of status, cancellation of removal, asy‐\nlum, withholding of removal, or protection under the Con‐\nvention Against Torture. The Board of Immigration Appeals \nagreed. In particular, it held that Ruderman had not raised \nany meaningful challenge to his inadmissibility determina‐\ntion and that even if the immigration judge had applied the \nwrong legal standard to determine that Ruderman was ineli‐\ngible for a waiver of inadmissibility, her alternative discre‐\ntionary denial made the error harmless. \n Ruderman petitions us for review of those holdings, along \nwith others reached by the immigration judge and aﬃrmed \nby the Board. While we largely agree with the Board’s analy‐\nsis, we hold that it was flawed with respect to one issue: the \nquestion whether Ruderman is statutorily inadmissible. We \ntherefore grant Ruderman’s petition and remand for the \nBoard to revisit that question and, if necessary, to decide \nwhether Ruderman is eligible for a waiver. \n I. \n Ruderman moved to the United States when he was nine‐\nteen to escape discrimination and violence directed at him on \naccount of his Jewish heritage. He moved from his native land \nof Belarus, a former Soviet republic that declared independ‐\nence during his childhood. In Belarus, Ruderman and his fam‐\nily were targeted for abuse by Neo‐Nazis and pro‐Russia ad‐\nvocates who would shout profanities at them, perform the \nNazi salute, leave anti‐Jewish propaganda in their mailbox, \nand throw bottles and stones at their home. \n Ruderman received even worse treatment at school. His \n(sometimes much older) classmates would bully and beat him \n\fNo. 17‐1689 3 \n\nand the handful of other Jewish students. The head of the \nschool and the police were alerted but did nothing to address \nthe situation. One particularly severe attack resulted in \nstitches and a permanent scar, while another resulted in two \nbroken wrists that have bothered him ever since. \n After attackers broke Ruderman’s wrists, his parents sent \nhim to a private school where he would be safer. His time \nthere was cut short, however, by his father’s death. Arkady \nRuderman, a documentary filmmaker, died while filming a \npiece on government corruption in Tajikistan—another for‐\nmer Soviet republic. Although government oﬃcials reported \nthat he was killed in a car accident, Arkady had previously \nbeen detained and battered by the KGB, and eyewitnesses \nsaid that they saw bullet holes in his dead body. Those reports \ncould not be confirmed because the police ordered that \nArkady’s casket remain closed at his funeral—and then at‐\ntended the event to make sure that it did. \n Without Arkady’s income, Ruderman’s family could no \nlonger aﬀord his private school tuition, so Ruderman enrolled \nat a diﬀerent public school where he was subjected to familiar \nanti‐Semitic verbal abuse. He became so afraid that in the \nninth grade he stopped attending classes entirely and later \ntransferred to a technical school. There, in spite of continued \nverbal abuse, he performed well and graduated with high \ngrades. Once out of school, however, he found that his Jewish \nheritage made it diﬃcult for him to get a job. \n Fed up with the abuse and intolerance, Ruderman fled to \nthe United States in 2001 under a provision known as the \nLautenberg Amendment, which lowers barriers to immigra‐\ntion for certain former soviet nationals. See Pub. L. No. 101‐\n167, tit. V, §§ 599D–E, 103 Stat. 1195, 1261–64 (1989) (codified \n\f4 No. 17‐1689 \n\nas amended at 8 U.S.C. § 1157 note, § 1255 note). His life in \nAmerica got oﬀ to a rocky start; shortly after arriving he was \nconvicted of driving under the influence of alcohol and sen‐\ntenced to court supervision. But over the next several years, \nhe found work as a cab driver and a security oﬃcer, met his \nfuture wife Elena, and moved into an apartment with her and \nher two children in Milwaukee. \n In 2008, Ruderman struck and killed a pedestrian with his \nvehicle while driving drunk. He accepted responsibility, \npleaded guilty to homicide by negligent operation of a vehi‐\ncle, and was convicted and sentenced to five years in prison. \nFollowing his release in 2013, he worked at a transportation \ncompany—until U.S. Customs and Immigration Services de‐\nnied his adjustment‐of‐status application, causing his work \npermit to expire. \n In January of 2016, the government detained Ruderman \nand began removal proceedings. The immigration judge ulti‐\nmately concluded that Ruderman was statutorily inadmissi‐\nble because of his two convictions. The judge also denied \nRuderman’s applications for a waiver of inadmissibility, ad‐\njustment of status under the Lautenberg Amendment, cancel‐\nlation of removal, asylum, withholding of removal, and pro‐\ntection under the Convention Against Torture. \n Ruderman appealed the immigration judge’s decision in \nan extensive pro se brief and later in a second brief filed by \npro bono counsel. The counseled brief supplemented certain \narguments that Ruderman had made in his initial brief but \nconceded others. Significantly, the later brief conceded that \n“[Ruderman’s] convictions for two crimes with an aggregate \nprison sentence of five years make him ‘inadmissible.’” That \nconcession contradicted Ruderman’s pro se argument that the \n\fNo. 17‐1689 5 \n\ninadmissibility statute applies only when two or more convic‐\ntions each result in a sentence to confinement, and so Ruder‐\nman’s sole sentence to confinement—which imposed five \nyears in prison—did not make him inadmissible. \n The Board dismissed Ruderman’s appeal. First, it noted in \npassing that Ruderman “ha[d] not raised any meaningful \nchallenges” to his inadmissibility, and thus the issue was \n“waived.” Second, the Board adopted and aﬃrmed the immi‐\ngration judge’s denial of Ruderman’s applications for cancel‐\nlation of removal, withholding of removal, and protection un‐\nder the Convention Against Torture. Finally, the Board af‐\nfirmed the denial of Ruderman’s request for a waiver of inad‐\nmissibility and adjustment of status under the Lautenberg \nAmendment. The Board bypassed Ruderman’s argument that \nthe immigration judge had applied the wrong standard to de‐\ntermine whether Ruderman was eligible for a waiver of inad‐\nmissibility and instead aﬃrmed the judge’s conclusion that, \neven if Ruderman were eligible to be considered for a waiver, \nshe would exercise her discretion to deny him relief. \n II. \n Ruderman petitions us for review of the Board’s decision. \nHe takes issue with the Board’s conclusion that he waived his \nopportunity to challenge his inadmissibility, and he argues \nthat the application of the wrong standard for determining his \neligibility for a waiver of inadmissibility contaminated the im‐\nmigration judge’s discretionary denial of a waiver. He also \nclaims that the judge erred by holding—and the Board erred \nby aﬃrming—both that his negligent homicide was “particu‐\nlarly serious” and that he failed to show a “substantial risk” \nthat he would be tortured in Belarus. \n\f6 No. 17‐1689 \n\n Because the Board provided its own analysis and also af‐\nfirmed the immigration judge’s decision, we review both de‐\ncisions. Sobaleva v. Holder, 760 F.3d 592, 596 (7th Cir. 2014). \n A. \n Ruderman argued in his pro se brief that he is not inad‐\nmissible under § 212(a)(2)(B) of the Immigration and Nation‐\nality Act, 8 U.S.C. § 1182(a)(2)(B), because he has only ever re‐\nceived one sentence to confinement. The Act states that an im‐\nmigrant is inadmissible to receive a visa or to be admitted to \nthe United States if he is convicted of “2 or more of‐\nfenses … for which the aggregate sentences to confinement \nwere 5 years or more.” Id. Ruderman interprets “sentences to \nconfinement” to require more than one custodial sentence. He \nsupports this reading by pointing to the word “aggregate,” \nwhich he argues would be superfluous if the statute could be \nsatisfied by a single sentence to confinement. Id. Because his \nfirst conviction—for driving under the influence—did not re‐\nsult in confinement, he concludes that he is not inadmissible. \nHis pro bono counsel, however, conceded Ruderman’s inad‐\nmissibility in a later‐filed brief. \n The Board did not address Ruderman’s inadmissibility ar‐\ngument, instead concluding that he had failed to raise any \nmeaningful challenges to his inadmissibility and so had \nwaived the issue. It appears likely that the Board reached that \nconclusion on the basis of Ruderman’s counsel’s concession, \nbecause Ruderman did raise the argument in several places—\nincluding his notice of appeal and pro se brief, both of which \nremained on the record. But the Board’s opinion did not oth‐\nerwise indicate whether the counseled brief superseded the \npro se brief. \n\fNo. 17‐1689 7 \n\n A later‐in‐time concession waives an issue in federal \ncourt—but we do not know whether that is true before the \nBoard as well. On this record it is unclear why the Board con‐\ncluded that Ruderman waived his challenge, and the Board’s \nfailure to explain inhibits our review of the issue. See SEC v. \nChenery Corp., 332 U.S. 194, 196 (1947) (“[A] reviewing court, \nin dealing with a determination or judgment which an admin‐\nistrative agency alone is authorized to make, must judge the \npropriety of such action solely by the grounds invoked by the \nagency. If those grounds are inadequate or improper, the \ncourt is powerless to aﬃrm the administrative action by sub‐\nstituting what it considers to be a more adequate or proper \nbasis.”). We grant Ruderman’s petition and remand this issue \nto the Board to clarify why it did not address Ruderman’s in‐\nadmissibility argument. \n B. \n If on remand the Board confirms that Ruderman is inad‐\nmissible, his application for a waiver of inadmissibility should \nbe reviewed under the correct legal standard. The immigra‐\ntion judge concluded that Ruderman was statutorily ineligi‐\nble for a waiver because he did not show that his removal \nwould cause “extreme hardship” to his U.S.‐citizen wife. 8 \nU.S.C. § 1182(h)(1)(B). When a waiver is sought in conjunction \nwith an application for a status adjustment under the Lauten‐\nberg Amendment, however, there is no threshold eligibility \nrequirement; a waiver may be granted simply “for humani‐\ntarian purposes, to assure family unity, or when it is other‐\nwise in the public interest.” 8 U.S.C. 1255 note; see also 8 C.F.R. \n§ 1245.7(d). The immigration judge erred by not considering \nRuderman’s application under this less stringent standard. \n\f8 No. 17‐1689 \n\n The Board concluded that this error was harmless because \nthe immigration judge held in the alternative that she would \nexercise her discretion to deny Ruderman relief if he were el‐\nigible to be considered for it. The assumption seems to be that \nthe judge would have made the same discretionary denial of \na waiver under the Lautenberg Amendment as she made un‐\nder § 1182(h). But, as we have already noted, the former pro‐\nvides discretion to grant a waiver for humanitarian purposes, \nto assure family unity, or when it is otherwise in the public \ninterest; the latter entails a potentially more complex consid‐\neration of the ground for exclusion at issue, past immigration \nviolations or criminal history, evidence of rehabilitation, gen‐\neral evidence of good or bad character, strength of family ties, \nduration of residence in the United States, and evidence of \nvalue to the community. See In re Mendez‐Moralez, 21 I. & N. \nDec. 296, 301 (BIA 1996). Because these statutes, along with \nthe cases and regulations interpreting them, articulate distinct \nfactors to be considered in deciding whether to grant a discre‐\ntionary waiver of inadmissibility, the Board cannot simply \nsubstitute one standard for another and assume that the out‐\ncome would be the same. If the Board confirms Ruderman’s \ninadmissibility on remand, it should consider his application \nfor a waiver under the proper framework. \n C. \n Ruderman’s other arguments go nowhere. First, he claims \nthat he is eligible for asylum and withholding of removal be‐\ncause he did not commit a “particularly serious crime.” 8 \nU.S.C. §§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii). Ruderman com‐\nmitted homicide by negligent operation of a vehicle, Wis. Stat. \n§ 940.10(1); he argues that Congress did not intend for crimi‐\n\fNo. 17‐1689 9 \n\nnal negligence like his to qualify as particularly serious. Gen‐\nerally, classification of a crime as “particularly serious” is \nwithin the discretion of the Attorney General—exercised here \nby the Board. Petrov v. Gonzales, 464 F.3d 800, 802 (7th Cir. \n2006). Our review of these classifications is confined to consti‐\ntutional and legal questions. 8 U.S.C. § 1252(a)(2); see also Es‐\ntrada‐Martinez v. Lynch, 809 F.3d 886, 892 (7th Cir. 2015). And \nwhen those legal questions implicate ambiguous statutory \nprovisions, we give deference. See Chevron U.S.A., Inc. v. Nat. \nRes. Def. Council, Inc., 467 U.S. 837, 842–44 (1984). \n We considered the meaning of “particularly serious \ncrime” in some depth in Ali v. Achim, 468 F.3d 462 (7th Cir. \n2006). In that case, the petitioner argued that the Board could \nnot hold that his conviction for “substantial battery with a \ndangerous weapon,” a nonaggravated felony, was a particu‐\nlarly serious crime under § 1158(b)(2) and § 1231(b)(3) be‐\ncause it did not fall within the two categories of crimes iden‐\ntified as per se “particularly serious” in § 1158(b)(2): aggra‐\nvated felonies and other crimes that the Attorney General des‐\nignates by regulation. Id. at 468–69. We disagreed, explaining \nthat the presence of these categories does not cabin the \nBoard’s discretion to determine that nonaggravated felonies \nare particularly serious on a case‐by‐case basis. Id. at 469. In \nthe same way, the Board is not precluded from determining \nthat some crimes of negligence are particularly serious. \n Nor does the Immigration and Nationality Act’s separate \ndefinition of “serious criminal offense” undermine the \nBoard’s interpretation. The Act identifies “driving while in‐\ntoxicated or under the influence of alcohol” as a serious crim‐\ninal offense if it “involves personal injury to another.” 8 U.S.C. \n§ 1101(h)(3). Ruderman argues that “particularly serious \n\f10 No. 17‐1689 \n\ncrime” must be interpreted to require more. Maybe so. But \neven if he’s right, criminally negligent homicide entails more \nthan mere “personal injury,” so the argument is a dead end. \n Finally, even if § 1158(b)(2)(A)(ii) and § 1231(b)(3)(B)(ii) \nwere ambiguous as to whether crimes of negligence could be \n“particularly serious,” Ruderman has not shown that the \nBoard’s interpretation is too unreasonable to merit deference \nunder Chevron. See Ali, 468 F.3d at 470. Nor has he shown that \nthe Board’s interpretation is so likely to conflict with the Con‐\nstitution or international law that we need to consider \nwhether some other interpretation is warranted. \n D. \n Finally, Ruderman contends that the Board should have \ngranted him protection under the Convention Against Tor‐\nture, 8 C.F.R. §§ 1208.16–18. The Convention forbids the re‐\nturn of “a person to another State where there are substantial \ngrounds for believing that he would be in danger of being \nsubjected to torture.” Convention Against Torture and Other \nCruel, Inhuman or Degrading Treatment or Punishment art. \n3(1), Dec. 10, 1984, S. Treaty Doc. No. 100‐20 (1990), 1465 \nU.N.T.S. 85. Federal regulations define torture as requiring \n“the consent or acquiescence of a public oﬃcial.” 8 C.F.R \n§ 1208.18(a)(1). Immigration judges must withhold or defer \nremoval if an applicant demonstrates that “it is more likely \nthan not that he or she would be tortured if removed.” 8 \nC.F.R. § 1208.16(c)(2). We have explained that “more likely \nthan not” means that there is a “substantial risk” that the alien \nwill be tortured. Rodriguez‐Molinero v. Lynch, 808 F.3d 1134, \n1135–36 (7th Cir. 2015); see also Perez‐Montes v. Sessions, 880 \nF.3d 849, 850 (7th Cir. 2018). \n\fNo. 17‐1689 11 \n\n Ruderman argues that the immigration judge both misun‐\nderstood and misapplied the “substantial risk” standard. But \nthere is no evidence of the former; the immigration judge \ncited our decision in Rodriguez‐Molinero and proceeded to an‐\nalyze whether there was a substantial risk that Ruderman \nwould be subject to torture inflicted by or with the consent of \na public oﬃcial if he returned to Belarus. See 8 C.F.R. \n§ 1208.18(a)(1)–(2). And Ruderman fails to establish the latter. \nWe review the Board’s conclusion that there was no substan‐\ntial risk of torture under the “highly deferential substantial \nevidence test,” which mandates denying the petition unless \n“the record evidence compels a contrary conclusion.” Lopez v. \nLynch, 810 F.3d 484, 492 (7th Cir. 2016) (citation omitted). \n The record evidence does not compel a contrary conclu‐\nsion. To be sure, certain findings from the immigration judge \ngive us pause. For one, the judge concluded that there was no \nsubstantial risk of torture for Jews in Belarus because, despite \n“widespread anti‐Semitism in Belarus,” incidents targeting \nJews have been declining. While it is true that the raw number \nof anti‐Jewish incidents in Belarus has declined, so has the \nJewish population. In this context, an absolute decrease in in‐\ncidents does not necessary equate to a relative increase in \nsafety for any individual. Nor does the evidence of Ruder‐\nman’s mother’s safe travel to and from Belarus mean that \nRuderman will be equally safe. His mother has a Christian \nname that is not associated with her late husband, whereas \nRuderman’s patronymic clearly signals that he is both Jewish \nand the son of a known political activist whom the KGB may \nhave tortured and killed. But on the other hand, there is evi‐\ndence that Ruderman became less susceptible to physical at‐\ntacks as he grew and became better able to defend himself, \nthat no one in his family has been threatened in Belarus, and \n\f12 No. 17‐1689 \n\nthat he lived in Belarus for eight years following his father’s \ndeath without any threat of torture on account of his relation‐\nship to his father. Considering all the evidence, the record \ndoes not compel the conclusion that there is a substantial risk \nthat Ruderman would be tortured if he returned to Belarus. \n * * * \n Ruderman’s petition for review is GRANTED.\n[END_CASE]", "role": "user" } ]
4,585,624		United States v. Scott Books	2019-01-29	17-3493	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before BAUER, BRENNAN, and SCUDDER, Circuit Judges.", "parties": "", "opinions": [{"author": "SCUDDER, Circuit Judge", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-3493\nUNITED STATES OF AMERICA,\n Plaintiff-Appellee,\n v.\n\nSCOTT BOOKS,\n Defendant-Appellant.\n ____________________\n\n Appeal from the United States District Court for the\n Central District of Illinois.\n No. 1:16-cr-10037 — Michael M. Mihm, Judge.\n ____________________\n\n ARGUED NOVEMBER 9, 2018 — DECIDED JANUARY 29, 2019\n ____________________\n\n Before BAUER, BRENNAN, and SCUDDER, Circuit Judges.\n SCUDDER, Circuit Judge. On trial for bank robbery, Scott\nBooks chose not to testify in his own defense and was found\nguilty and sentenced to 180 months’ imprisonment. He now\nchallenges two pretrial decisions by the district court. The\nfirst allowed eyewitness testimony at trial from the two bank\ntellers that Books alleged based their identification of him as\nthe robber not on personal knowledge, but rather on infor-\nmation improperly supplied by a police detective. The sec-\n\f2 No. 17-3493\n\nond ruling would have allowed the government, had Books\nchosen to testify at trial, to impeach him with physical evi-\ndence directly tying him to the robbery—evidence the police\nlearned of (and then recovered) only as a result of a confes-\nsion the district court separately had determined was unlaw-\nfully coerced.\n Neither challenge succeeds. The district court did not err\nin finding the eyewitness identifications reflected the tellers’\nfirsthand knowledge of Books, and thus allowing their tes-\ntimony at trial was entirely proper. Nor can we conclude\nthat the district court’s conditional impeachment ruling,\neven if wrong on the law, mandates reversal in light of the\noverwhelming weight of evidence against Books. So we\naﬃrm.\n I\n A\n On July 28, 2016 a man robbed the Land of Lincoln Credit\nUnion in Normal, Illinois. Dressed in a black hooded sweat-\nshirt, wearing a mask and neon gloves, the robber ap-\nproached the counter and, while motioning toward the\ndrawer with what appeared to be a black handgun, de-\nmanded “all the money.” The robbery lasted all but 20 sec-\nonds, with the oﬀender making oﬀ with $18,000 and fleeing\nin a Buick SUV.\n Two tellers recognized the robber’s voice and manner-\nisms and immediately identified him as Scott Books—a long-\ntime customer of the credit union. Holly Bateman told her\nsupervisor (and later the police) she was 99% certain Books\nwas the robber because she had interacted with him on at\nleast six prior occasions. The second teller, Susan Phelps,\n\fNo. 17-3493 3\n\nagreed with Bateman’s identification of Books as the oﬀend-\ner. A third witness, James Teidman, was driving by the bank\nwhen he saw the robber running from the bank with a gun,\nonly then to speed away in a Buick SUV.\n The police arrested Books the next day. After waiving his\nMiranda rights and agreeing to an interview, he confessed to\nthe robbery, while also telling the police where they could\nfind the gloves, clothing, and fake gun he used. The police\nfound these items exactly where Books described, and in\ntime a grand jury indicted Books for the robbery.\n B\n The district court held a series of pretrial hearings to de-\ntermine the admissibility of evidence contested by Books.\nThree of those rulings are significant to this appeal.\n First, the district court suppressed Books’s confession,\nfinding that the police oﬃcers overstepped and overcame\nBooks’s will by threatening to arrest his wife and take his\nchildren into custody if he did not own up to his role in the\nrobbery—rendering the confession involuntary. The court\nsuppressed both the confession and its physical fruits—\nspecifically, the clothing, gloves, and fake gun the police re-\ncovered based upon Books telling them where to look.\n Second, the district court denied Books’s motion to pre-\nvent the two bank tellers (Bateman and Phelps) from testify-\ning at trial. Books had sought to exclude their testimony on\nthe basis that the police detective who investigated the rob-\nbery improperly tainted their identifications when, a day af-\nter the robbery, he allegedly told both witnesses that Books\nhad confessed to the crime. The government disagreed, tak-\ning the position that the detective in no way revealed\n\f4 No. 17-3493\n\nBooks’s confession and thus in no way influenced the tellers’\nclear and definitive identification of Books as the robber. The\ndistrict court held a hearing, received testimony from the\ntellers and detective, and found it “clear from th[e] record\nthat [both tellers] have a truly independent source of identi-\nfication of [Books] other than any suggestion that would\nhave been put in their mind by the oﬃcer.” Accordingly, the\ndistrict court permitted the tellers to testify at trial.\n Third, the district court considered but reserved defini-\ntively ruling until trial on the government’s motion for per-\nmission to impeach Books with the fruits of his confession in\nthe event he chose to testify. Books opposed the motion and\nurged the district court to hold that the price for the police\nunlawfully coercing his confession should be the suppres-\nsion of all incriminating evidence (his admission and the\nphysical fruits) for all purposes, including impeachment. The\ndistrict court said it was inclined to allow some impeach-\nment but reserved a final ruling unless and until Books\nchose to testify and the government sought to impeach him\non cross-examination with his prior statements describing\nthe whereabouts of the clothing he wore during the robbery.\nThe district court cast its ruling this way: “[I]f and when we\nget to that point [of the trial], any questions that the gov-\nernment wished to ask the defendant if he testifies, I would\nhave to hear exactly what the questions are outside the pres-\nence of the jury so there could be specific objections.”\n\fNo. 17-3493 5\n\n C\n In the end, Books chose not to testify at trial, and thus\nneither his coerced confession nor the resulting physical\nfruits came into evidence. The government nonetheless pre-\nsented a strong case, including testimony from these wit-\nnesses:\n  Bank teller Holly Bateman identified Books\n as the robber. She testified that she knew\n Books from her work at the credit union\n and immediately recognized him as the\n robber—so much so that she almost said\n “Scott, can you remove your mask?”\n Bateman told the jury that she “instantly”\n recognized Books’s voice and likewise\n knew it was Books from his distinct\n mannerisms. Asked at trial about her\n confidence level that Books committed the\n robbery, Bateman testified that she was\n 110% sure because the incident had\n replayed over and over in her mind.\n  Susan Phelps, the second bank teller, also\n identified Books as the robber. While not as\n fast as Bateman to recognize Books during\n the robbery, Phelps testified she was confi-\n dent Books was the oﬀender based on his\n unique mannerisms, including his walk and\n jittery disposition.\n  Phillip Meyer, a friend and former cowork-\n er of Books, testified that he had received a\n text message from Books on the day of the\n\f6 No. 17-3493\n\n robbery or the day before asking, “I wonder\n what bank I should rob today?”\n  Todd Hogan, the bank’s vice president, tes-\n tified that he remembered teller Holly\n Bateman calling him immediately after the\n robbery to tell him she was 99% sure the\n robber was Books. Hogan also explained\n that Books’s business account had been\n flagged in the bank’s system on multiple\n occasions due to attempts to deposit checks\n backed by insuﬃcient funds.\n  James Teidman testified that he was driving\n by the credit union when the robbery oc-\n curred and saw a Buick SUV, the same\n model later tracked to Books’s residence,\n flee the scene.\n While Books chose not to testify, his counsel vigorously\ncross-examined the government’s witnesses. When it came\nto tellers Bateman and Phelps, defense counsel challenged\ntheir recollection of the robbery, probed the reliability of\ntheir identifications of Books and the getaway car, and exam-\nined their memory of the robber’s dress, voice, and manner-\nisms—all in an eﬀort to question their overall confidence\nthat Books was the oﬀender. At no point during the trial did\nBooks’s counsel or the government refer to Books’s confes-\nsion or to the police detective’s (allegedly impermissible) in-\nteraction with the two tellers. The jury returned a guilty ver-\ndict.\n\fNo. 17-3493 7\n\n II\n A\n Books challenges the district court’s pretrial ruling deny-\ning his motion to preclude the two tellers from testifying at\ntrial on the basis that the police detective allegedly tainted\ntheir eyewitness identifications by telling them that he had\nconfessed to the robbery. This misconduct, Books contends,\nviolated his Fifth Amendment right against self-\nincrimination. He further argues that the district court’s pre-\ntrial ruling too circumscribed his Sixth Amendment right to\ncross-examine the tellers at trial. The facts belie both conten-\ntions.\n While all agree that our review of legal issues is de novo,\nthe parties dispute the legal standard that governs the ad-\nmission at trial of the bank tellers’ identification testimony.\nBooks invites us to follow Kastigar v. United States, and\nthereby place the burden on the government to show that\nthe tellers’ testimony was “derived from legitimate inde-\npendent sources” and, as a result, not unduly influenced by\nthe police detective. See 406 U.S. 441, 461–62 (1972). The\ngovernment, on the other hand, urges us to read Kastigar as\nmore narrowly applying to, and not beyond, the setting that\ngave rise to its holding—circumstances in which a witness\ntestifies pursuant to a grant of immunity. See id. The gov-\nernment instead asks us to employ the less onerous, due-\nprocess based standard found in cases like Neil v. Biggers,\n409 U.S. 188 (1972), where the focus is more simply on the\nreliability of in-court identification testimony with the de-\nfendant (not the government) bearing the initial burden of\nshowing that the government did something to taint the\nidentification. See also, e.g., United States v. L’Allier, 838 F.2d\n\f8 No. 17-3493\n\n234, 239 (7th Cir. 1988) (explaining that the defendant bears\nthe burden of showing that the challenged identification was\nunduly suggestive).\n The proper reach and application of the Kastigar rule has\nnot gone unnoticed by other courts. See, e.g., United States v.\nAllen, 864 F.3d 63, 90 n.121 (2d Cir. 2017) (“[I]t is not clear\nwhether all involuntary statements or all compelled\nstatements should be subjected to the strong medicine\nprescribed in Kastigar, or whether some other doctrine\nshould govern in certain circumstances.”); United States v.\nJones, 542 F.2d 186, 199 n.24 (4th Cir. 1976) (discussing\nuncertainty over Kastigar’s application to coerced\nconfessions).\n We have not had a case requiring us to choose sides, and\nthis appeal does not either. We can comfortably resolve the\ncase on narrower grounds, because under either Kastigar or\nBiggers (or hybrids of either standard), the evidence was\nmore than suﬃcient to show that the two tellers, Bateman\nand Phelps, identified Books based on their prior dealings\nand first-hand familiarity with him, without regard to any\ninformation supplied by the police detective. At no point did\nthe tellers, and most especially Holly Bateman, ever waiver\nin their confidence that Books was the robber. So, whether\nassessed under Kastigar or a lesser standard, Books’s chal-\nlenge to the district court’s admission of the tellers’ testimo-\nny cannot succeed.\n Books fares no better when contending that the district\ncourt’s ruling on the tellers’ testimony also violated the Sixth\nAmendment by limiting his ability to confront and cross-\nexamine these witnesses. A fulsome cross-examination,\nBooks posits, would have entailed questioning how the wit-\n\fNo. 17-3493 9\n\nnesses arrived at their identification testimony—a line of\nquestioning, as Books sees it, that necessarily would have\nexposed that the police improperly told both tellers that he\nhad confessed to the robbery. We cannot agree, as Books’s\nposition misfires on the law and facts.\n A defendant’s Sixth Amendment right to confront wit-\nnesses is not absolute, but instead subject to reasonable limi-\ntations imposed by the district court. See United States v.\nSaunders, 166 F.3d 907, 918 (7th Cir. 1999) (citing Delaware v.\nVan Arsdall, 475 U.S. 673, 679 (1986)). The limitation Books\nchallenges came from the district court’s pretrial ruling sup-\npressing his coerced confession. This ruling favored Books\nand, beyond precluding the government from using the con-\nfession as evidence, naturally limited how he would ap-\nproach cross-examining government witnesses, for he right-\nly wanted to avoid the jury learning that he had confessed to\nthe robbery. But accepting a necessary and proper limitation\non cross-examination does not, without more, run afoul of\nthe Confrontation Clause, especially where, as here, Books\nwas able as a practical matter to adequately, and indeed vig-\norously, cross-examine both bank tellers. See United States v.\nSasson, 62 F.3d 874, 882 (7th Cir. 1995) (explaining that the\nConfrontation Clause “guarantees only an opportunity for a\nthorough and eﬀective cross-examination, ‘not cross-\nexamination that is eﬀective in whatever way, and to what-\never extent, the defense might wish’”) (quoting Delaware v.\nFensterer, 474 U.S. 15, 20 (1985)). And Books was able to do\nso without ever insinuating, much less revealing, that he had\nconfessed to the robbery. The Confrontation Clause required\nno more.\n\f10 No. 17-3493\n\n B\n This brings us to Books’s Fifth Amendment challenge to\nthe district court’s pretrial impeachment ruling. Books ar-\ngues that the ruling—allowing the government, if he chose\nto testify, to cross-examine him with the fruits of his coerced\nconfession—created an unconstitutional predicament and\ncatch-22: he was forced to either forfeit his right to testify in\nhis own defense, or, if he did take the stand, face a surefire\nconviction once the government impeached him with the\nfruits of his confession.\n Books may be right in his contention that the district\ncourt, even though reserving a final ruling until after seeing\nwhether he chose to testify and what questions the govern-\nment wanted to ask on cross-examination, committed legal\nerror in concluding, however conditionally, that some im-\npeachment with the physical fruits of a coerced confession\nmay be permissible. While that proposition is not settled in\nthe law, Books’s position is not without some support. See,\ne.g., Chavez v. Martinez, 538 U.S. 760, 769 (2003) (plurality\nopinion) (emphasizing, albeit in dicta, that “those subjected\nto coercive police interrogations have an automatic protection\nfrom the use of their involuntary statements (or evidence de-\nrived from their statements) in any subsequent criminal tri-\nal”).\n The government urges us to avoid answering this ques-\ntion. Pointing to Luce v. United States, 469 U.S. 38 (1984), the\ngovernment says that Books waived any challenge to the dis-\ntrict court’s ruling by not testifying at trial. The govern-\nment’s position finds substantial, if not dispositive, support\nin our decision in United States v. Wilson, 307 F.3d 596, 600–\n01 (7th Cir. 2002), where the defendant chose not to testify at\n\fNo. 17-3493 11\n\ntrial and, as a result, we declined to review the merits of his\nclaim that a pretrial ruling on the admissibility of particular\nimpeachment testimony violated his Fifth Amendment right\nto remain silent.\n The whole point of the rule announced in Luce, which we\nextended to the domain of a Fifth Amendment claim in\nWilson, is that courts should refrain from reviewing claims\nthat a particular line of cross-examination would have\nviolated a defendant’s right against self-incrimination when\nthe defendant in fact never testified at trial and thus never\nunderwent cross-examination. Any other course, the\nreasoning runs, would require too much speculation on how\nthe testimony and related questioning would have played\nout at trial. See Wilson, 307 F.3d at 600–01.\n Even if we agreed with Books that Wilson should be read\nmore narrowly, our ensuing reasoning would not travel a\npath that resulted in an award of relief. Both parties agree\nthat the ultimate merits of Books’s Fifth Amendment claim is\nsubject to harmless error review. Indeed, the doctrine of\nharmless error finds straightforward application on the evi-\ndence presented at Books’s trial.\n Not every constitutional error automatically requires the\nreversal of a defendant’s conviction. Instead, as the Supreme\nCourt has explained, “if the government can show ‘beyond a\nreasonable doubt that the error complained of did not con-\ntribute to the verdict obtained,’ … then the error is deemed\nharmless and the defendant is not entitled to reversal.”\nWeaver v. Massachusetts, 137 S. Ct. 1899, 1907 (2017) (quoting\nChapman v. California, 386 U.S. 18, 24 (1967)). This precise\nstandard would apply if Books had testified and was sub-\njected to certain impermissible impeachment. See Arizona v.\n\f12 No. 17-3493\n\nFulminante, 499 U.S. 279, 306 (1991) (holding that the doc-\ntrine of harmless error applies to the violation of the defend-\nant’s Fifth Amendment right against self-incrimination\nthrough the admission at trial of an involuntary confession).\nAnd the same analysis would apply if we accept Books’s\ncontention that the district court’s ruling constructively fore-\nclosed his decision to take the stand. See Ortega v. O’Leary,\n843 F.2d 258, 262 (7th Cir. 1988) (applying harmless error\nanalysis to the denial of the right to testify); Alicea v. Ganon,\n675 F.2d 913, 925 (7th Cir. 1982) (reaching the same conclu-\nsion).\n In reviewing the trial record, our obligation is to deter-\nmine whether any error was harmless beyond a reasonable\ndoubt, and we do so in no small part by evaluating the over-\nall strength of the prosecution’s case. See Jones v. Basinger,\n635 F.3d 1030, 1052 (7th Cir. 2011). On this front, Books faces\nan insurmountable burden because the evidence against him\nat trial was overwhelming: the eyewitness testimony of the\ntwo bank tellers, the text message to a friend indicating his\ndesire to rob a bank, the identification of his car as the geta-\nway vehicle, and the testimony of over a dozen other wit-\nnesses—all in the broader context of his financial diﬃculties\nand prior disputes with the Land of Lincoln Credit Union.\nOn this record, any error in the district court’s pretrial ruling\non the scope of permissible impeachment was harmless be-\nyond a reasonable doubt.\n III\n Two other matters warrant attention. First, relying on\nBrooks v. Tennessee, 406 U.S. 605 (1972), Books argues that the\ndistrict court’s impeachment ruling deprived him of the\n“guiding hand of counsel” by undermining his attorney’s\n\fNo. 17-3493 13\n\nability to make informed and independent decisions about\nthe best trial strategy, including whether Books should take\nthe stand in his own defense. Id. at 612. But Brooks provides\nno refuge, for there the Supreme Court considered a state\nstatute that required a defendant, if he chose to put on a de-\nfense at trial, to be the first defense witness to testify, forcing\na preemptive decision to take the stand absent “a full survey\nof all the case.” Id. at 608. Books, in contrast, faced only the\nuncertainty that often accompanies an unfavorable (and\nperhaps even incorrect) pretrial ruling on the scope of im-\npeachment. Whatever limitations this may have imposed on\nthe strategic choices of Books’s defense, they were far afield\nfrom the extreme circumstances defense counsel confronted\nin Brooks.\n Finally, we reject Books’s invitation to overturn his con-\nviction on the basis of cumulative error. We have reviewed\nthe record carefully and cannot get anywhere near conclud-\ning that there are “multiple errors [that] so infected the jury’s\ndeliberation that they denied the petitioner a fundamentally\nfair trial.” United States v. Allen, 269 F.3d 842, 847 (7th Cir.\n2001). The bottom line is that Books’s cumulative error ar-\ngument cannot overcome the overwhelming evidence pre-\nsented against him at trial.\n For these reasons, we AFFIRM.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4362877/", "author_raw": "SCUDDER, Circuit Judge"}]}	BAUER	BRENNAN	SCUDDER	1		{"BAUER": ", Circuit", "BRENNAN": ", Circuit", "SCUDDER": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4585624/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: United States v. Scott Books\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-29\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-3493\nUNITED STATES OF AMERICA,\n Plaintiff-Appellee,\n v.\n\nSCOTT BOOKS,\n Defendant-Appellant.\n ____________________\n\n Appeal from the United States District Court for the\n Central District of Illinois.\n No. 1:16-cr-10037 — Michael M. Mihm, Judge.\n ____________________\n\n ARGUED NOVEMBER 9, 2018 — DECIDED JANUARY 29, 2019\n ____________________\n\n Before BAUER, BRENNAN, and SCUDDER, Circuit Judges.\n SCUDDER, Circuit Judge. On trial for bank robbery, Scott\nBooks chose not to testify in his own defense and was found\nguilty and sentenced to 180 months’ imprisonment. He now\nchallenges two pretrial decisions by the district court. The\nfirst allowed eyewitness testimony at trial from the two bank\ntellers that Books alleged based their identification of him as\nthe robber not on personal knowledge, but rather on infor-\nmation improperly supplied by a police detective. The sec-\n\f2 No. 17-3493\n\nond ruling would have allowed the government, had Books\nchosen to testify at trial, to impeach him with physical evi-\ndence directly tying him to the robbery—evidence the police\nlearned of (and then recovered) only as a result of a confes-\nsion the district court separately had determined was unlaw-\nfully coerced.\n Neither challenge succeeds. The district court did not err\nin finding the eyewitness identifications reflected the tellers’\nfirsthand knowledge of Books, and thus allowing their tes-\ntimony at trial was entirely proper. Nor can we conclude\nthat the district court’s conditional impeachment ruling,\neven if wrong on the law, mandates reversal in light of the\noverwhelming weight of evidence against Books. So we\naﬃrm.\n I\n A\n On July 28, 2016 a man robbed the Land of Lincoln Credit\nUnion in Normal, Illinois. Dressed in a black hooded sweat-\nshirt, wearing a mask and neon gloves, the robber ap-\nproached the counter and, while motioning toward the\ndrawer with what appeared to be a black handgun, de-\nmanded “all the money.” The robbery lasted all but 20 sec-\nonds, with the oﬀender making oﬀ with $18,000 and fleeing\nin a Buick SUV.\n Two tellers recognized the robber’s voice and manner-\nisms and immediately identified him as Scott Books—a long-\ntime customer of the credit union. Holly Bateman told her\nsupervisor (and later the police) she was 99% certain Books\nwas the robber because she had interacted with him on at\nleast six prior occasions. The second teller, Susan Phelps,\n\fNo. 17-3493 3\n\nagreed with Bateman’s identification of Books as the oﬀend-\ner. A third witness, James Teidman, was driving by the bank\nwhen he saw the robber running from the bank with a gun,\nonly then to speed away in a Buick SUV.\n The police arrested Books the next day. After waiving his\nMiranda rights and agreeing to an interview, he confessed to\nthe robbery, while also telling the police where they could\nfind the gloves, clothing, and fake gun he used. The police\nfound these items exactly where Books described, and in\ntime a grand jury indicted Books for the robbery.\n B\n The district court held a series of pretrial hearings to de-\ntermine the admissibility of evidence contested by Books.\nThree of those rulings are significant to this appeal.\n First, the district court suppressed Books’s confession,\nfinding that the police oﬃcers overstepped and overcame\nBooks’s will by threatening to arrest his wife and take his\nchildren into custody if he did not own up to his role in the\nrobbery—rendering the confession involuntary. The court\nsuppressed both the confession and its physical fruits—\nspecifically, the clothing, gloves, and fake gun the police re-\ncovered based upon Books telling them where to look.\n Second, the district court denied Books’s motion to pre-\nvent the two bank tellers (Bateman and Phelps) from testify-\ning at trial. Books had sought to exclude their testimony on\nthe basis that the police detective who investigated the rob-\nbery improperly tainted their identifications when, a day af-\nter the robbery, he allegedly told both witnesses that Books\nhad confessed to the crime. The government disagreed, tak-\ning the position that the detective in no way revealed\n\f4 No. 17-3493\n\nBooks’s confession and thus in no way influenced the tellers’\nclear and definitive identification of Books as the robber. The\ndistrict court held a hearing, received testimony from the\ntellers and detective, and found it “clear from th[e] record\nthat [both tellers] have a truly independent source of identi-\nfication of [Books] other than any suggestion that would\nhave been put in their mind by the oﬃcer.” Accordingly, the\ndistrict court permitted the tellers to testify at trial.\n Third, the district court considered but reserved defini-\ntively ruling until trial on the government’s motion for per-\nmission to impeach Books with the fruits of his confession in\nthe event he chose to testify. Books opposed the motion and\nurged the district court to hold that the price for the police\nunlawfully coercing his confession should be the suppres-\nsion of all incriminating evidence (his admission and the\nphysical fruits) for all purposes, including impeachment. The\ndistrict court said it was inclined to allow some impeach-\nment but reserved a final ruling unless and until Books\nchose to testify and the government sought to impeach him\non cross-examination with his prior statements describing\nthe whereabouts of the clothing he wore during the robbery.\nThe district court cast its ruling this way: “[I]f and when we\nget to that point [of the trial], any questions that the gov-\nernment wished to ask the defendant if he testifies, I would\nhave to hear exactly what the questions are outside the pres-\nence of the jury so there could be specific objections.”\n\fNo. 17-3493 5\n\n C\n In the end, Books chose not to testify at trial, and thus\nneither his coerced confession nor the resulting physical\nfruits came into evidence. The government nonetheless pre-\nsented a strong case, including testimony from these wit-\nnesses:\n  Bank teller Holly Bateman identified Books\n as the robber. She testified that she knew\n Books from her work at the credit union\n and immediately recognized him as the\n robber—so much so that she almost said\n “Scott, can you remove your mask?”\n Bateman told the jury that she “instantly”\n recognized Books’s voice and likewise\n knew it was Books from his distinct\n mannerisms. Asked at trial about her\n confidence level that Books committed the\n robbery, Bateman testified that she was\n 110% sure because the incident had\n replayed over and over in her mind.\n  Susan Phelps, the second bank teller, also\n identified Books as the robber. While not as\n fast as Bateman to recognize Books during\n the robbery, Phelps testified she was confi-\n dent Books was the oﬀender based on his\n unique mannerisms, including his walk and\n jittery disposition.\n  Phillip Meyer, a friend and former cowork-\n er of Books, testified that he had received a\n text message from Books on the day of the\n\f6 No. 17-3493\n\n robbery or the day before asking, “I wonder\n what bank I should rob today?”\n  Todd Hogan, the bank’s vice president, tes-\n tified that he remembered teller Holly\n Bateman calling him immediately after the\n robbery to tell him she was 99% sure the\n robber was Books. Hogan also explained\n that Books’s business account had been\n flagged in the bank’s system on multiple\n occasions due to attempts to deposit checks\n backed by insuﬃcient funds.\n  James Teidman testified that he was driving\n by the credit union when the robbery oc-\n curred and saw a Buick SUV, the same\n model later tracked to Books’s residence,\n flee the scene.\n While Books chose not to testify, his counsel vigorously\ncross-examined the government’s witnesses. When it came\nto tellers Bateman and Phelps, defense counsel challenged\ntheir recollection of the robbery, probed the reliability of\ntheir identifications of Books and the getaway car, and exam-\nined their memory of the robber’s dress, voice, and manner-\nisms—all in an eﬀort to question their overall confidence\nthat Books was the oﬀender. At no point during the trial did\nBooks’s counsel or the government refer to Books’s confes-\nsion or to the police detective’s (allegedly impermissible) in-\nteraction with the two tellers. The jury returned a guilty ver-\ndict.\n\fNo. 17-3493 7\n\n II\n A\n Books challenges the district court’s pretrial ruling deny-\ning his motion to preclude the two tellers from testifying at\ntrial on the basis that the police detective allegedly tainted\ntheir eyewitness identifications by telling them that he had\nconfessed to the robbery. This misconduct, Books contends,\nviolated his Fifth Amendment right against self-\nincrimination. He further argues that the district court’s pre-\ntrial ruling too circumscribed his Sixth Amendment right to\ncross-examine the tellers at trial. The facts belie both conten-\ntions.\n While all agree that our review of legal issues is de novo,\nthe parties dispute the legal standard that governs the ad-\nmission at trial of the bank tellers’ identification testimony.\nBooks invites us to follow Kastigar v. United States, and\nthereby place the burden on the government to show that\nthe tellers’ testimony was “derived from legitimate inde-\npendent sources” and, as a result, not unduly influenced by\nthe police detective. See 406 U.S. 441, 461–62 (1972). The\ngovernment, on the other hand, urges us to read Kastigar as\nmore narrowly applying to, and not beyond, the setting that\ngave rise to its holding—circumstances in which a witness\ntestifies pursuant to a grant of immunity. See id. The gov-\nernment instead asks us to employ the less onerous, due-\nprocess based standard found in cases like Neil v. Biggers,\n409 U.S. 188 (1972), where the focus is more simply on the\nreliability of in-court identification testimony with the de-\nfendant (not the government) bearing the initial burden of\nshowing that the government did something to taint the\nidentification. See also, e.g., United States v. L’Allier, 838 F.2d\n\f8 No. 17-3493\n\n234, 239 (7th Cir. 1988) (explaining that the defendant bears\nthe burden of showing that the challenged identification was\nunduly suggestive).\n The proper reach and application of the Kastigar rule has\nnot gone unnoticed by other courts. See, e.g., United States v.\nAllen, 864 F.3d 63, 90 n.121 (2d Cir. 2017) (“[I]t is not clear\nwhether all involuntary statements or all compelled\nstatements should be subjected to the strong medicine\nprescribed in Kastigar, or whether some other doctrine\nshould govern in certain circumstances.”); United States v.\nJones, 542 F.2d 186, 199 n.24 (4th Cir. 1976) (discussing\nuncertainty over Kastigar’s application to coerced\nconfessions).\n We have not had a case requiring us to choose sides, and\nthis appeal does not either. We can comfortably resolve the\ncase on narrower grounds, because under either Kastigar or\nBiggers (or hybrids of either standard), the evidence was\nmore than suﬃcient to show that the two tellers, Bateman\nand Phelps, identified Books based on their prior dealings\nand first-hand familiarity with him, without regard to any\ninformation supplied by the police detective. At no point did\nthe tellers, and most especially Holly Bateman, ever waiver\nin their confidence that Books was the robber. So, whether\nassessed under Kastigar or a lesser standard, Books’s chal-\nlenge to the district court’s admission of the tellers’ testimo-\nny cannot succeed.\n Books fares no better when contending that the district\ncourt’s ruling on the tellers’ testimony also violated the Sixth\nAmendment by limiting his ability to confront and cross-\nexamine these witnesses. A fulsome cross-examination,\nBooks posits, would have entailed questioning how the wit-\n\fNo. 17-3493 9\n\nnesses arrived at their identification testimony—a line of\nquestioning, as Books sees it, that necessarily would have\nexposed that the police improperly told both tellers that he\nhad confessed to the robbery. We cannot agree, as Books’s\nposition misfires on the law and facts.\n A defendant’s Sixth Amendment right to confront wit-\nnesses is not absolute, but instead subject to reasonable limi-\ntations imposed by the district court. See United States v.\nSaunders, 166 F.3d 907, 918 (7th Cir. 1999) (citing Delaware v.\nVan Arsdall, 475 U.S. 673, 679 (1986)). The limitation Books\nchallenges came from the district court’s pretrial ruling sup-\npressing his coerced confession. This ruling favored Books\nand, beyond precluding the government from using the con-\nfession as evidence, naturally limited how he would ap-\nproach cross-examining government witnesses, for he right-\nly wanted to avoid the jury learning that he had confessed to\nthe robbery. But accepting a necessary and proper limitation\non cross-examination does not, without more, run afoul of\nthe Confrontation Clause, especially where, as here, Books\nwas able as a practical matter to adequately, and indeed vig-\norously, cross-examine both bank tellers. See United States v.\nSasson, 62 F.3d 874, 882 (7th Cir. 1995) (explaining that the\nConfrontation Clause “guarantees only an opportunity for a\nthorough and eﬀective cross-examination, ‘not cross-\nexamination that is eﬀective in whatever way, and to what-\never extent, the defense might wish’”) (quoting Delaware v.\nFensterer, 474 U.S. 15, 20 (1985)). And Books was able to do\nso without ever insinuating, much less revealing, that he had\nconfessed to the robbery. The Confrontation Clause required\nno more.\n\f10 No. 17-3493\n\n B\n This brings us to Books’s Fifth Amendment challenge to\nthe district court’s pretrial impeachment ruling. Books ar-\ngues that the ruling—allowing the government, if he chose\nto testify, to cross-examine him with the fruits of his coerced\nconfession—created an unconstitutional predicament and\ncatch-22: he was forced to either forfeit his right to testify in\nhis own defense, or, if he did take the stand, face a surefire\nconviction once the government impeached him with the\nfruits of his confession.\n Books may be right in his contention that the district\ncourt, even though reserving a final ruling until after seeing\nwhether he chose to testify and what questions the govern-\nment wanted to ask on cross-examination, committed legal\nerror in concluding, however conditionally, that some im-\npeachment with the physical fruits of a coerced confession\nmay be permissible. While that proposition is not settled in\nthe law, Books’s position is not without some support. See,\ne.g., Chavez v. Martinez, 538 U.S. 760, 769 (2003) (plurality\nopinion) (emphasizing, albeit in dicta, that “those subjected\nto coercive police interrogations have an automatic protection\nfrom the use of their involuntary statements (or evidence de-\nrived from their statements) in any subsequent criminal tri-\nal”).\n The government urges us to avoid answering this ques-\ntion. Pointing to Luce v. United States, 469 U.S. 38 (1984), the\ngovernment says that Books waived any challenge to the dis-\ntrict court’s ruling by not testifying at trial. The govern-\nment’s position finds substantial, if not dispositive, support\nin our decision in United States v. Wilson, 307 F.3d 596, 600–\n01 (7th Cir. 2002), where the defendant chose not to testify at\n\fNo. 17-3493 11\n\ntrial and, as a result, we declined to review the merits of his\nclaim that a pretrial ruling on the admissibility of particular\nimpeachment testimony violated his Fifth Amendment right\nto remain silent.\n The whole point of the rule announced in Luce, which we\nextended to the domain of a Fifth Amendment claim in\nWilson, is that courts should refrain from reviewing claims\nthat a particular line of cross-examination would have\nviolated a defendant’s right against self-incrimination when\nthe defendant in fact never testified at trial and thus never\nunderwent cross-examination. Any other course, the\nreasoning runs, would require too much speculation on how\nthe testimony and related questioning would have played\nout at trial. See Wilson, 307 F.3d at 600–01.\n Even if we agreed with Books that Wilson should be read\nmore narrowly, our ensuing reasoning would not travel a\npath that resulted in an award of relief. Both parties agree\nthat the ultimate merits of Books’s Fifth Amendment claim is\nsubject to harmless error review. Indeed, the doctrine of\nharmless error finds straightforward application on the evi-\ndence presented at Books’s trial.\n Not every constitutional error automatically requires the\nreversal of a defendant’s conviction. Instead, as the Supreme\nCourt has explained, “if the government can show ‘beyond a\nreasonable doubt that the error complained of did not con-\ntribute to the verdict obtained,’ … then the error is deemed\nharmless and the defendant is not entitled to reversal.”\nWeaver v. Massachusetts, 137 S. Ct. 1899, 1907 (2017) (quoting\nChapman v. California, 386 U.S. 18, 24 (1967)). This precise\nstandard would apply if Books had testified and was sub-\njected to certain impermissible impeachment. See Arizona v.\n\f12 No. 17-3493\n\nFulminante, 499 U.S. 279, 306 (1991) (holding that the doc-\ntrine of harmless error applies to the violation of the defend-\nant’s Fifth Amendment right against self-incrimination\nthrough the admission at trial of an involuntary confession).\nAnd the same analysis would apply if we accept Books’s\ncontention that the district court’s ruling constructively fore-\nclosed his decision to take the stand. See Ortega v. O’Leary,\n843 F.2d 258, 262 (7th Cir. 1988) (applying harmless error\nanalysis to the denial of the right to testify); Alicea v. Ganon,\n675 F.2d 913, 925 (7th Cir. 1982) (reaching the same conclu-\nsion).\n In reviewing the trial record, our obligation is to deter-\nmine whether any error was harmless beyond a reasonable\ndoubt, and we do so in no small part by evaluating the over-\nall strength of the prosecution’s case. See Jones v. Basinger,\n635 F.3d 1030, 1052 (7th Cir. 2011). On this front, Books faces\nan insurmountable burden because the evidence against him\nat trial was overwhelming: the eyewitness testimony of the\ntwo bank tellers, the text message to a friend indicating his\ndesire to rob a bank, the identification of his car as the geta-\nway vehicle, and the testimony of over a dozen other wit-\nnesses—all in the broader context of his financial diﬃculties\nand prior disputes with the Land of Lincoln Credit Union.\nOn this record, any error in the district court’s pretrial ruling\non the scope of permissible impeachment was harmless be-\nyond a reasonable doubt.\n III\n Two other matters warrant attention. First, relying on\nBrooks v. Tennessee, 406 U.S. 605 (1972), Books argues that the\ndistrict court’s impeachment ruling deprived him of the\n“guiding hand of counsel” by undermining his attorney’s\n\fNo. 17-3493 13\n\nability to make informed and independent decisions about\nthe best trial strategy, including whether Books should take\nthe stand in his own defense. Id. at 612. But Brooks provides\nno refuge, for there the Supreme Court considered a state\nstatute that required a defendant, if he chose to put on a de-\nfense at trial, to be the first defense witness to testify, forcing\na preemptive decision to take the stand absent “a full survey\nof all the case.” Id. at 608. Books, in contrast, faced only the\nuncertainty that often accompanies an unfavorable (and\nperhaps even incorrect) pretrial ruling on the scope of im-\npeachment. Whatever limitations this may have imposed on\nthe strategic choices of Books’s defense, they were far afield\nfrom the extreme circumstances defense counsel confronted\nin Brooks.\n Finally, we reject Books’s invitation to overturn his con-\nviction on the basis of cumulative error. We have reviewed\nthe record carefully and cannot get anywhere near conclud-\ning that there are “multiple errors [that] so infected the jury’s\ndeliberation that they denied the petitioner a fundamentally\nfair trial.” United States v. Allen, 269 F.3d 842, 847 (7th Cir.\n2001). The bottom line is that Books’s cumulative error ar-\ngument cannot overcome the overwhelming evidence pre-\nsented against him at trial.\n For these reasons, we AFFIRM.\n[END_CASE]", "role": "user" } ]
4,585,676		United States v. Scott Books	2019-01-29	17-3493	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before BAUER, BRENNAN, and SCUDDER, Circuit Judges.", "parties": "", "opinions": [{"author": "SCUDDER, Circuit Judge", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-3493\nUNITED STATES OF AMERICA,\n Plaintiff-Appellee,\n v.\n\nSCOTT BOOKS,\n Defendant-Appellant.\n ____________________\n\n Appeal from the United States District Court for the\n Central District of Illinois.\n No. 1:16-cr-10037 — Michael M. Mihm, Judge.\n ____________________\n\n ARGUED NOVEMBER 9, 2018 — DECIDED JANUARY 29, 2019\n ____________________\n\n Before BAUER, BRENNAN, and SCUDDER, Circuit Judges.\n SCUDDER, Circuit Judge. On trial for bank robbery, Scott\nBooks chose not to testify in his own defense and was found\nguilty and sentenced to 180 months’ imprisonment. He now\nchallenges two pretrial decisions by the district court. The\nfirst allowed eyewitness testimony at trial from the two bank\ntellers that Books alleged based their identification of him as\nthe robber not on personal knowledge, but rather on infor-\nmation improperly supplied by a police detective. The sec-\n\f2 No. 17-3493\n\nond ruling would have allowed the government, had Books\nchosen to testify at trial, to impeach him with physical evi-\ndence directly tying him to the robbery—evidence the police\nlearned of (and then recovered) only as a result of a confes-\nsion the district court separately had determined was unlaw-\nfully coerced.\n Neither challenge succeeds. The district court did not err\nin finding the eyewitness identifications reflected the tellers’\nfirsthand knowledge of Books, and thus allowing their tes-\ntimony at trial was entirely proper. Nor can we conclude\nthat the district court’s conditional impeachment ruling,\neven if wrong on the law, mandates reversal in light of the\noverwhelming weight of evidence against Books. So we\naﬃrm.\n I\n A\n On July 28, 2016 a man robbed the Land of Lincoln Credit\nUnion in Normal, Illinois. Dressed in a black hooded sweat-\nshirt, wearing a mask and neon gloves, the robber ap-\nproached the counter and, while motioning toward the\ndrawer with what appeared to be a black handgun, de-\nmanded “all the money.” The robbery lasted all but 20 sec-\nonds, with the oﬀender making oﬀ with $18,000 and fleeing\nin a Buick SUV.\n Two tellers recognized the robber’s voice and manner-\nisms and immediately identified him as Scott Books—a long-\ntime customer of the credit union. Holly Bateman told her\nsupervisor (and later the police) she was 99% certain Books\nwas the robber because she had interacted with him on at\nleast six prior occasions. The second teller, Susan Phelps,\n\fNo. 17-3493 3\n\nagreed with Bateman’s identification of Books as the oﬀend-\ner. A third witness, James Teidman, was driving by the bank\nwhen he saw the robber running from the bank with a gun,\nonly then to speed away in a Buick SUV.\n The police arrested Books the next day. After waiving his\nMiranda rights and agreeing to an interview, he confessed to\nthe robbery, while also telling the police where they could\nfind the gloves, clothing, and fake gun he used. The police\nfound these items exactly where Books described, and in\ntime a grand jury indicted Books for the robbery.\n B\n The district court held a series of pretrial hearings to de-\ntermine the admissibility of evidence contested by Books.\nThree of those rulings are significant to this appeal.\n First, the district court suppressed Books’s confession,\nfinding that the police oﬃcers overstepped and overcame\nBooks’s will by threatening to arrest his wife and take his\nchildren into custody if he did not own up to his role in the\nrobbery—rendering the confession involuntary. The court\nsuppressed both the confession and its physical fruits—\nspecifically, the clothing, gloves, and fake gun the police re-\ncovered based upon Books telling them where to look.\n Second, the district court denied Books’s motion to pre-\nvent the two bank tellers (Bateman and Phelps) from testify-\ning at trial. Books had sought to exclude their testimony on\nthe basis that the police detective who investigated the rob-\nbery improperly tainted their identifications when, a day af-\nter the robbery, he allegedly told both witnesses that Books\nhad confessed to the crime. The government disagreed, tak-\ning the position that the detective in no way revealed\n\f4 No. 17-3493\n\nBooks’s confession and thus in no way influenced the tellers’\nclear and definitive identification of Books as the robber. The\ndistrict court held a hearing, received testimony from the\ntellers and detective, and found it “clear from th[e] record\nthat [both tellers] have a truly independent source of identi-\nfication of [Books] other than any suggestion that would\nhave been put in their mind by the oﬃcer.” Accordingly, the\ndistrict court permitted the tellers to testify at trial.\n Third, the district court considered but reserved defini-\ntively ruling until trial on the government’s motion for per-\nmission to impeach Books with the fruits of his confession in\nthe event he chose to testify. Books opposed the motion and\nurged the district court to hold that the price for the police\nunlawfully coercing his confession should be the suppres-\nsion of all incriminating evidence (his admission and the\nphysical fruits) for all purposes, including impeachment. The\ndistrict court said it was inclined to allow some impeach-\nment but reserved a final ruling unless and until Books\nchose to testify and the government sought to impeach him\non cross-examination with his prior statements describing\nthe whereabouts of the clothing he wore during the robbery.\nThe district court cast its ruling this way: “[I]f and when we\nget to that point [of the trial], any questions that the gov-\nernment wished to ask the defendant if he testifies, I would\nhave to hear exactly what the questions are outside the pres-\nence of the jury so there could be specific objections.”\n\fNo. 17-3493 5\n\n C\n In the end, Books chose not to testify at trial, and thus\nneither his coerced confession nor the resulting physical\nfruits came into evidence. The government nonetheless pre-\nsented a strong case, including testimony from these wit-\nnesses:\n  Bank teller Holly Bateman identified Books\n as the robber. She testified that she knew\n Books from her work at the credit union\n and immediately recognized him as the\n robber—so much so that she almost said\n “Scott, can you remove your mask?”\n Bateman told the jury that she “instantly”\n recognized Books’s voice and likewise\n knew it was Books from his distinct\n mannerisms. Asked at trial about her\n confidence level that Books committed the\n robbery, Bateman testified that she was\n 110% sure because the incident had\n replayed over and over in her mind.\n  Susan Phelps, the second bank teller, also\n identified Books as the robber. While not as\n fast as Bateman to recognize Books during\n the robbery, Phelps testified she was confi-\n dent Books was the oﬀender based on his\n unique mannerisms, including his walk and\n jittery disposition.\n  Phillip Meyer, a friend and former cowork-\n er of Books, testified that he had received a\n text message from Books on the day of the\n\f6 No. 17-3493\n\n robbery or the day before asking, “I wonder\n what bank I should rob today?”\n  Todd Hogan, the bank’s vice president, tes-\n tified that he remembered teller Holly\n Bateman calling him immediately after the\n robbery to tell him she was 99% sure the\n robber was Books. Hogan also explained\n that Books’s business account had been\n flagged in the bank’s system on multiple\n occasions due to attempts to deposit checks\n backed by insuﬃcient funds.\n  James Teidman testified that he was driving\n by the credit union when the robbery oc-\n curred and saw a Buick SUV, the same\n model later tracked to Books’s residence,\n flee the scene.\n While Books chose not to testify, his counsel vigorously\ncross-examined the government’s witnesses. When it came\nto tellers Bateman and Phelps, defense counsel challenged\ntheir recollection of the robbery, probed the reliability of\ntheir identifications of Books and the getaway car, and exam-\nined their memory of the robber’s dress, voice, and manner-\nisms—all in an eﬀort to question their overall confidence\nthat Books was the oﬀender. At no point during the trial did\nBooks’s counsel or the government refer to Books’s confes-\nsion or to the police detective’s (allegedly impermissible) in-\nteraction with the two tellers. The jury returned a guilty ver-\ndict.\n\fNo. 17-3493 7\n\n II\n A\n Books challenges the district court’s pretrial ruling deny-\ning his motion to preclude the two tellers from testifying at\ntrial on the basis that the police detective allegedly tainted\ntheir eyewitness identifications by telling them that he had\nconfessed to the robbery. This misconduct, Books contends,\nviolated his Fifth Amendment right against self-\nincrimination. He further argues that the district court’s pre-\ntrial ruling too circumscribed his Sixth Amendment right to\ncross-examine the tellers at trial. The facts belie both conten-\ntions.\n While all agree that our review of legal issues is de novo,\nthe parties dispute the legal standard that governs the ad-\nmission at trial of the bank tellers’ identification testimony.\nBooks invites us to follow Kastigar v. United States, and\nthereby place the burden on the government to show that\nthe tellers’ testimony was “derived from legitimate inde-\npendent sources” and, as a result, not unduly influenced by\nthe police detective. See 406 U.S. 441, 461–62 (1972). The\ngovernment, on the other hand, urges us to read Kastigar as\nmore narrowly applying to, and not beyond, the setting that\ngave rise to its holding—circumstances in which a witness\ntestifies pursuant to a grant of immunity. See id. The gov-\nernment instead asks us to employ the less onerous, due-\nprocess based standard found in cases like Neil v. Biggers,\n409 U.S. 188 (1972), where the focus is more simply on the\nreliability of in-court identification testimony with the de-\nfendant (not the government) bearing the initial burden of\nshowing that the government did something to taint the\nidentification. See also, e.g., United States v. L’Allier, 838 F.2d\n\f8 No. 17-3493\n\n234, 239 (7th Cir. 1988) (explaining that the defendant bears\nthe burden of showing that the challenged identification was\nunduly suggestive).\n The proper reach and application of the Kastigar rule has\nnot gone unnoticed by other courts. See, e.g., United States v.\nAllen, 864 F.3d 63, 90 n.121 (2d Cir. 2017) (“[I]t is not clear\nwhether all involuntary statements or all compelled\nstatements should be subjected to the strong medicine\nprescribed in Kastigar, or whether some other doctrine\nshould govern in certain circumstances.”); United States v.\nJones, 542 F.2d 186, 199 n.24 (4th Cir. 1976) (discussing\nuncertainty over Kastigar’s application to coerced\nconfessions).\n We have not had a case requiring us to choose sides, and\nthis appeal does not either. We can comfortably resolve the\ncase on narrower grounds, because under either Kastigar or\nBiggers (or hybrids of either standard), the evidence was\nmore than suﬃcient to show that the two tellers, Bateman\nand Phelps, identified Books based on their prior dealings\nand first-hand familiarity with him, without regard to any\ninformation supplied by the police detective. At no point did\nthe tellers, and most especially Holly Bateman, ever waiver\nin their confidence that Books was the robber. So, whether\nassessed under Kastigar or a lesser standard, Books’s chal-\nlenge to the district court’s admission of the tellers’ testimo-\nny cannot succeed.\n Books fares no better when contending that the district\ncourt’s ruling on the tellers’ testimony also violated the Sixth\nAmendment by limiting his ability to confront and cross-\nexamine these witnesses. A fulsome cross-examination,\nBooks posits, would have entailed questioning how the wit-\n\fNo. 17-3493 9\n\nnesses arrived at their identification testimony—a line of\nquestioning, as Books sees it, that necessarily would have\nexposed that the police improperly told both tellers that he\nhad confessed to the robbery. We cannot agree, as Books’s\nposition misfires on the law and facts.\n A defendant’s Sixth Amendment right to confront wit-\nnesses is not absolute, but instead subject to reasonable limi-\ntations imposed by the district court. See United States v.\nSaunders, 166 F.3d 907, 918 (7th Cir. 1999) (citing Delaware v.\nVan Arsdall, 475 U.S. 673, 679 (1986)). The limitation Books\nchallenges came from the district court’s pretrial ruling sup-\npressing his coerced confession. This ruling favored Books\nand, beyond precluding the government from using the con-\nfession as evidence, naturally limited how he would ap-\nproach cross-examining government witnesses, for he right-\nly wanted to avoid the jury learning that he had confessed to\nthe robbery. But accepting a necessary and proper limitation\non cross-examination does not, without more, run afoul of\nthe Confrontation Clause, especially where, as here, Books\nwas able as a practical matter to adequately, and indeed vig-\norously, cross-examine both bank tellers. See United States v.\nSasson, 62 F.3d 874, 882 (7th Cir. 1995) (explaining that the\nConfrontation Clause “guarantees only an opportunity for a\nthorough and eﬀective cross-examination, ‘not cross-\nexamination that is eﬀective in whatever way, and to what-\never extent, the defense might wish’”) (quoting Delaware v.\nFensterer, 474 U.S. 15, 20 (1985)). And Books was able to do\nso without ever insinuating, much less revealing, that he had\nconfessed to the robbery. The Confrontation Clause required\nno more.\n\f10 No. 17-3493\n\n B\n This brings us to Books’s Fifth Amendment challenge to\nthe district court’s pretrial impeachment ruling. Books ar-\ngues that the ruling—allowing the government, if he chose\nto testify, to cross-examine him with the fruits of his coerced\nconfession—created an unconstitutional predicament and\ncatch-22: he was forced to either forfeit his right to testify in\nhis own defense, or, if he did take the stand, face a surefire\nconviction once the government impeached him with the\nfruits of his confession.\n Books may be right in his contention that the district\ncourt, even though reserving a final ruling until after seeing\nwhether he chose to testify and what questions the govern-\nment wanted to ask on cross-examination, committed legal\nerror in concluding, however conditionally, that some im-\npeachment with the physical fruits of a coerced confession\nmay be permissible. While that proposition is not settled in\nthe law, Books’s position is not without some support. See,\ne.g., Chavez v. Martinez, 538 U.S. 760, 769 (2003) (plurality\nopinion) (emphasizing, albeit in dicta, that “those subjected\nto coercive police interrogations have an automatic protection\nfrom the use of their involuntary statements (or evidence de-\nrived from their statements) in any subsequent criminal tri-\nal”).\n The government urges us to avoid answering this ques-\ntion. Pointing to Luce v. United States, 469 U.S. 38 (1984), the\ngovernment says that Books waived any challenge to the dis-\ntrict court’s ruling by not testifying at trial. The govern-\nment’s position finds substantial, if not dispositive, support\nin our decision in United States v. Wilson, 307 F.3d 596, 600–\n01 (7th Cir. 2002), where the defendant chose not to testify at\n\fNo. 17-3493 11\n\ntrial and, as a result, we declined to review the merits of his\nclaim that a pretrial ruling on the admissibility of particular\nimpeachment testimony violated his Fifth Amendment right\nto remain silent.\n The whole point of the rule announced in Luce, which we\nextended to the domain of a Fifth Amendment claim in\nWilson, is that courts should refrain from reviewing claims\nthat a particular line of cross-examination would have\nviolated a defendant’s right against self-incrimination when\nthe defendant in fact never testified at trial and thus never\nunderwent cross-examination. Any other course, the\nreasoning runs, would require too much speculation on how\nthe testimony and related questioning would have played\nout at trial. See Wilson, 307 F.3d at 600–01.\n Even if we agreed with Books that Wilson should be read\nmore narrowly, our ensuing reasoning would not travel a\npath that resulted in an award of relief. Both parties agree\nthat the ultimate merits of Books’s Fifth Amendment claim is\nsubject to harmless error review. Indeed, the doctrine of\nharmless error finds straightforward application on the evi-\ndence presented at Books’s trial.\n Not every constitutional error automatically requires the\nreversal of a defendant’s conviction. Instead, as the Supreme\nCourt has explained, “if the government can show ‘beyond a\nreasonable doubt that the error complained of did not con-\ntribute to the verdict obtained,’ … then the error is deemed\nharmless and the defendant is not entitled to reversal.”\nWeaver v. Massachusetts, 137 S. Ct. 1899, 1907 (2017) (quoting\nChapman v. California, 386 U.S. 18, 24 (1967)). This precise\nstandard would apply if Books had testified and was sub-\njected to certain impermissible impeachment. See Arizona v.\n\f12 No. 17-3493\n\nFulminante, 499 U.S. 279, 306 (1991) (holding that the doc-\ntrine of harmless error applies to the violation of the defend-\nant’s Fifth Amendment right against self-incrimination\nthrough the admission at trial of an involuntary confession).\nAnd the same analysis would apply if we accept Books’s\ncontention that the district court’s ruling constructively fore-\nclosed his decision to take the stand. See Ortega v. O’Leary,\n843 F.2d 258, 262 (7th Cir. 1988) (applying harmless error\nanalysis to the denial of the right to testify); Alicea v. Ganon,\n675 F.2d 913, 925 (7th Cir. 1982) (reaching the same conclu-\nsion).\n In reviewing the trial record, our obligation is to deter-\nmine whether any error was harmless beyond a reasonable\ndoubt, and we do so in no small part by evaluating the over-\nall strength of the prosecution’s case. See Jones v. Basinger,\n635 F.3d 1030, 1052 (7th Cir. 2011). On this front, Books faces\nan insurmountable burden because the evidence against him\nat trial was overwhelming: the eyewitness testimony of the\ntwo bank tellers, the text message to a friend indicating his\ndesire to rob a bank, the identification of his car as the geta-\nway vehicle, and the testimony of over a dozen other wit-\nnesses—all in the broader context of his financial diﬃculties\nand prior disputes with the Land of Lincoln Credit Union.\nOn this record, any error in the district court’s pretrial ruling\non the scope of permissible impeachment was harmless be-\nyond a reasonable doubt.\n III\n Two other matters warrant attention. First, relying on\nBrooks v. Tennessee, 406 U.S. 605 (1972), Books argues that the\ndistrict court’s impeachment ruling deprived him of the\n“guiding hand of counsel” by undermining his attorney’s\n\fNo. 17-3493 13\n\nability to make informed and independent decisions about\nthe best trial strategy, including whether Books should take\nthe stand in his own defense. Id. at 612. But Brooks provides\nno refuge, for there the Supreme Court considered a state\nstatute that required a defendant, if he chose to put on a de-\nfense at trial, to be the first defense witness to testify, forcing\na preemptive decision to take the stand absent “a full survey\nof all the case.” Id. at 608. Books, in contrast, faced only the\nuncertainty that often accompanies an unfavorable (and\nperhaps even incorrect) pretrial ruling on the scope of im-\npeachment. Whatever limitations this may have imposed on\nthe strategic choices of Books’s defense, they were far afield\nfrom the extreme circumstances defense counsel confronted\nin Brooks.\n Finally, we reject Books’s invitation to overturn his con-\nviction on the basis of cumulative error. We have reviewed\nthe record carefully and cannot get anywhere near conclud-\ning that there are “multiple errors [that] so infected the jury’s\ndeliberation that they denied the petitioner a fundamentally\nfair trial.” United States v. Allen, 269 F.3d 842, 847 (7th Cir.\n2001). The bottom line is that Books’s cumulative error ar-\ngument cannot overcome the overwhelming evidence pre-\nsented against him at trial.\n For these reasons, we AFFIRM.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4362929/", "author_raw": "SCUDDER, Circuit Judge"}]}	BAUER	BRENNAN	SCUDDER	1		{"BAUER": ", Circuit", "BRENNAN": ", Circuit", "SCUDDER": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4585676/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: United States v. Scott Books\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-29\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIn the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-3493\nUNITED STATES OF AMERICA,\n Plaintiff-Appellee,\n v.\n\nSCOTT BOOKS,\n Defendant-Appellant.\n ____________________\n\n Appeal from the United States District Court for the\n Central District of Illinois.\n No. 1:16-cr-10037 — Michael M. Mihm, Judge.\n ____________________\n\n ARGUED NOVEMBER 9, 2018 — DECIDED JANUARY 29, 2019\n ____________________\n\n Before BAUER, BRENNAN, and SCUDDER, Circuit Judges.\n SCUDDER, Circuit Judge. On trial for bank robbery, Scott\nBooks chose not to testify in his own defense and was found\nguilty and sentenced to 180 months’ imprisonment. He now\nchallenges two pretrial decisions by the district court. The\nfirst allowed eyewitness testimony at trial from the two bank\ntellers that Books alleged based their identification of him as\nthe robber not on personal knowledge, but rather on infor-\nmation improperly supplied by a police detective. The sec-\n\f2 No. 17-3493\n\nond ruling would have allowed the government, had Books\nchosen to testify at trial, to impeach him with physical evi-\ndence directly tying him to the robbery—evidence the police\nlearned of (and then recovered) only as a result of a confes-\nsion the district court separately had determined was unlaw-\nfully coerced.\n Neither challenge succeeds. The district court did not err\nin finding the eyewitness identifications reflected the tellers’\nfirsthand knowledge of Books, and thus allowing their tes-\ntimony at trial was entirely proper. Nor can we conclude\nthat the district court’s conditional impeachment ruling,\neven if wrong on the law, mandates reversal in light of the\noverwhelming weight of evidence against Books. So we\naﬃrm.\n I\n A\n On July 28, 2016 a man robbed the Land of Lincoln Credit\nUnion in Normal, Illinois. Dressed in a black hooded sweat-\nshirt, wearing a mask and neon gloves, the robber ap-\nproached the counter and, while motioning toward the\ndrawer with what appeared to be a black handgun, de-\nmanded “all the money.” The robbery lasted all but 20 sec-\nonds, with the oﬀender making oﬀ with $18,000 and fleeing\nin a Buick SUV.\n Two tellers recognized the robber’s voice and manner-\nisms and immediately identified him as Scott Books—a long-\ntime customer of the credit union. Holly Bateman told her\nsupervisor (and later the police) she was 99% certain Books\nwas the robber because she had interacted with him on at\nleast six prior occasions. The second teller, Susan Phelps,\n\fNo. 17-3493 3\n\nagreed with Bateman’s identification of Books as the oﬀend-\ner. A third witness, James Teidman, was driving by the bank\nwhen he saw the robber running from the bank with a gun,\nonly then to speed away in a Buick SUV.\n The police arrested Books the next day. After waiving his\nMiranda rights and agreeing to an interview, he confessed to\nthe robbery, while also telling the police where they could\nfind the gloves, clothing, and fake gun he used. The police\nfound these items exactly where Books described, and in\ntime a grand jury indicted Books for the robbery.\n B\n The district court held a series of pretrial hearings to de-\ntermine the admissibility of evidence contested by Books.\nThree of those rulings are significant to this appeal.\n First, the district court suppressed Books’s confession,\nfinding that the police oﬃcers overstepped and overcame\nBooks’s will by threatening to arrest his wife and take his\nchildren into custody if he did not own up to his role in the\nrobbery—rendering the confession involuntary. The court\nsuppressed both the confession and its physical fruits—\nspecifically, the clothing, gloves, and fake gun the police re-\ncovered based upon Books telling them where to look.\n Second, the district court denied Books’s motion to pre-\nvent the two bank tellers (Bateman and Phelps) from testify-\ning at trial. Books had sought to exclude their testimony on\nthe basis that the police detective who investigated the rob-\nbery improperly tainted their identifications when, a day af-\nter the robbery, he allegedly told both witnesses that Books\nhad confessed to the crime. The government disagreed, tak-\ning the position that the detective in no way revealed\n\f4 No. 17-3493\n\nBooks’s confession and thus in no way influenced the tellers’\nclear and definitive identification of Books as the robber. The\ndistrict court held a hearing, received testimony from the\ntellers and detective, and found it “clear from th[e] record\nthat [both tellers] have a truly independent source of identi-\nfication of [Books] other than any suggestion that would\nhave been put in their mind by the oﬃcer.” Accordingly, the\ndistrict court permitted the tellers to testify at trial.\n Third, the district court considered but reserved defini-\ntively ruling until trial on the government’s motion for per-\nmission to impeach Books with the fruits of his confession in\nthe event he chose to testify. Books opposed the motion and\nurged the district court to hold that the price for the police\nunlawfully coercing his confession should be the suppres-\nsion of all incriminating evidence (his admission and the\nphysical fruits) for all purposes, including impeachment. The\ndistrict court said it was inclined to allow some impeach-\nment but reserved a final ruling unless and until Books\nchose to testify and the government sought to impeach him\non cross-examination with his prior statements describing\nthe whereabouts of the clothing he wore during the robbery.\nThe district court cast its ruling this way: “[I]f and when we\nget to that point [of the trial], any questions that the gov-\nernment wished to ask the defendant if he testifies, I would\nhave to hear exactly what the questions are outside the pres-\nence of the jury so there could be specific objections.”\n\fNo. 17-3493 5\n\n C\n In the end, Books chose not to testify at trial, and thus\nneither his coerced confession nor the resulting physical\nfruits came into evidence. The government nonetheless pre-\nsented a strong case, including testimony from these wit-\nnesses:\n  Bank teller Holly Bateman identified Books\n as the robber. She testified that she knew\n Books from her work at the credit union\n and immediately recognized him as the\n robber—so much so that she almost said\n “Scott, can you remove your mask?”\n Bateman told the jury that she “instantly”\n recognized Books’s voice and likewise\n knew it was Books from his distinct\n mannerisms. Asked at trial about her\n confidence level that Books committed the\n robbery, Bateman testified that she was\n 110% sure because the incident had\n replayed over and over in her mind.\n  Susan Phelps, the second bank teller, also\n identified Books as the robber. While not as\n fast as Bateman to recognize Books during\n the robbery, Phelps testified she was confi-\n dent Books was the oﬀender based on his\n unique mannerisms, including his walk and\n jittery disposition.\n  Phillip Meyer, a friend and former cowork-\n er of Books, testified that he had received a\n text message from Books on the day of the\n\f6 No. 17-3493\n\n robbery or the day before asking, “I wonder\n what bank I should rob today?”\n  Todd Hogan, the bank’s vice president, tes-\n tified that he remembered teller Holly\n Bateman calling him immediately after the\n robbery to tell him she was 99% sure the\n robber was Books. Hogan also explained\n that Books’s business account had been\n flagged in the bank’s system on multiple\n occasions due to attempts to deposit checks\n backed by insuﬃcient funds.\n  James Teidman testified that he was driving\n by the credit union when the robbery oc-\n curred and saw a Buick SUV, the same\n model later tracked to Books’s residence,\n flee the scene.\n While Books chose not to testify, his counsel vigorously\ncross-examined the government’s witnesses. When it came\nto tellers Bateman and Phelps, defense counsel challenged\ntheir recollection of the robbery, probed the reliability of\ntheir identifications of Books and the getaway car, and exam-\nined their memory of the robber’s dress, voice, and manner-\nisms—all in an eﬀort to question their overall confidence\nthat Books was the oﬀender. At no point during the trial did\nBooks’s counsel or the government refer to Books’s confes-\nsion or to the police detective’s (allegedly impermissible) in-\nteraction with the two tellers. The jury returned a guilty ver-\ndict.\n\fNo. 17-3493 7\n\n II\n A\n Books challenges the district court’s pretrial ruling deny-\ning his motion to preclude the two tellers from testifying at\ntrial on the basis that the police detective allegedly tainted\ntheir eyewitness identifications by telling them that he had\nconfessed to the robbery. This misconduct, Books contends,\nviolated his Fifth Amendment right against self-\nincrimination. He further argues that the district court’s pre-\ntrial ruling too circumscribed his Sixth Amendment right to\ncross-examine the tellers at trial. The facts belie both conten-\ntions.\n While all agree that our review of legal issues is de novo,\nthe parties dispute the legal standard that governs the ad-\nmission at trial of the bank tellers’ identification testimony.\nBooks invites us to follow Kastigar v. United States, and\nthereby place the burden on the government to show that\nthe tellers’ testimony was “derived from legitimate inde-\npendent sources” and, as a result, not unduly influenced by\nthe police detective. See 406 U.S. 441, 461–62 (1972). The\ngovernment, on the other hand, urges us to read Kastigar as\nmore narrowly applying to, and not beyond, the setting that\ngave rise to its holding—circumstances in which a witness\ntestifies pursuant to a grant of immunity. See id. The gov-\nernment instead asks us to employ the less onerous, due-\nprocess based standard found in cases like Neil v. Biggers,\n409 U.S. 188 (1972), where the focus is more simply on the\nreliability of in-court identification testimony with the de-\nfendant (not the government) bearing the initial burden of\nshowing that the government did something to taint the\nidentification. See also, e.g., United States v. L’Allier, 838 F.2d\n\f8 No. 17-3493\n\n234, 239 (7th Cir. 1988) (explaining that the defendant bears\nthe burden of showing that the challenged identification was\nunduly suggestive).\n The proper reach and application of the Kastigar rule has\nnot gone unnoticed by other courts. See, e.g., United States v.\nAllen, 864 F.3d 63, 90 n.121 (2d Cir. 2017) (“[I]t is not clear\nwhether all involuntary statements or all compelled\nstatements should be subjected to the strong medicine\nprescribed in Kastigar, or whether some other doctrine\nshould govern in certain circumstances.”); United States v.\nJones, 542 F.2d 186, 199 n.24 (4th Cir. 1976) (discussing\nuncertainty over Kastigar’s application to coerced\nconfessions).\n We have not had a case requiring us to choose sides, and\nthis appeal does not either. We can comfortably resolve the\ncase on narrower grounds, because under either Kastigar or\nBiggers (or hybrids of either standard), the evidence was\nmore than suﬃcient to show that the two tellers, Bateman\nand Phelps, identified Books based on their prior dealings\nand first-hand familiarity with him, without regard to any\ninformation supplied by the police detective. At no point did\nthe tellers, and most especially Holly Bateman, ever waiver\nin their confidence that Books was the robber. So, whether\nassessed under Kastigar or a lesser standard, Books’s chal-\nlenge to the district court’s admission of the tellers’ testimo-\nny cannot succeed.\n Books fares no better when contending that the district\ncourt’s ruling on the tellers’ testimony also violated the Sixth\nAmendment by limiting his ability to confront and cross-\nexamine these witnesses. A fulsome cross-examination,\nBooks posits, would have entailed questioning how the wit-\n\fNo. 17-3493 9\n\nnesses arrived at their identification testimony—a line of\nquestioning, as Books sees it, that necessarily would have\nexposed that the police improperly told both tellers that he\nhad confessed to the robbery. We cannot agree, as Books’s\nposition misfires on the law and facts.\n A defendant’s Sixth Amendment right to confront wit-\nnesses is not absolute, but instead subject to reasonable limi-\ntations imposed by the district court. See United States v.\nSaunders, 166 F.3d 907, 918 (7th Cir. 1999) (citing Delaware v.\nVan Arsdall, 475 U.S. 673, 679 (1986)). The limitation Books\nchallenges came from the district court’s pretrial ruling sup-\npressing his coerced confession. This ruling favored Books\nand, beyond precluding the government from using the con-\nfession as evidence, naturally limited how he would ap-\nproach cross-examining government witnesses, for he right-\nly wanted to avoid the jury learning that he had confessed to\nthe robbery. But accepting a necessary and proper limitation\non cross-examination does not, without more, run afoul of\nthe Confrontation Clause, especially where, as here, Books\nwas able as a practical matter to adequately, and indeed vig-\norously, cross-examine both bank tellers. See United States v.\nSasson, 62 F.3d 874, 882 (7th Cir. 1995) (explaining that the\nConfrontation Clause “guarantees only an opportunity for a\nthorough and eﬀective cross-examination, ‘not cross-\nexamination that is eﬀective in whatever way, and to what-\never extent, the defense might wish’”) (quoting Delaware v.\nFensterer, 474 U.S. 15, 20 (1985)). And Books was able to do\nso without ever insinuating, much less revealing, that he had\nconfessed to the robbery. The Confrontation Clause required\nno more.\n\f10 No. 17-3493\n\n B\n This brings us to Books’s Fifth Amendment challenge to\nthe district court’s pretrial impeachment ruling. Books ar-\ngues that the ruling—allowing the government, if he chose\nto testify, to cross-examine him with the fruits of his coerced\nconfession—created an unconstitutional predicament and\ncatch-22: he was forced to either forfeit his right to testify in\nhis own defense, or, if he did take the stand, face a surefire\nconviction once the government impeached him with the\nfruits of his confession.\n Books may be right in his contention that the district\ncourt, even though reserving a final ruling until after seeing\nwhether he chose to testify and what questions the govern-\nment wanted to ask on cross-examination, committed legal\nerror in concluding, however conditionally, that some im-\npeachment with the physical fruits of a coerced confession\nmay be permissible. While that proposition is not settled in\nthe law, Books’s position is not without some support. See,\ne.g., Chavez v. Martinez, 538 U.S. 760, 769 (2003) (plurality\nopinion) (emphasizing, albeit in dicta, that “those subjected\nto coercive police interrogations have an automatic protection\nfrom the use of their involuntary statements (or evidence de-\nrived from their statements) in any subsequent criminal tri-\nal”).\n The government urges us to avoid answering this ques-\ntion. Pointing to Luce v. United States, 469 U.S. 38 (1984), the\ngovernment says that Books waived any challenge to the dis-\ntrict court’s ruling by not testifying at trial. The govern-\nment’s position finds substantial, if not dispositive, support\nin our decision in United States v. Wilson, 307 F.3d 596, 600–\n01 (7th Cir. 2002), where the defendant chose not to testify at\n\fNo. 17-3493 11\n\ntrial and, as a result, we declined to review the merits of his\nclaim that a pretrial ruling on the admissibility of particular\nimpeachment testimony violated his Fifth Amendment right\nto remain silent.\n The whole point of the rule announced in Luce, which we\nextended to the domain of a Fifth Amendment claim in\nWilson, is that courts should refrain from reviewing claims\nthat a particular line of cross-examination would have\nviolated a defendant’s right against self-incrimination when\nthe defendant in fact never testified at trial and thus never\nunderwent cross-examination. Any other course, the\nreasoning runs, would require too much speculation on how\nthe testimony and related questioning would have played\nout at trial. See Wilson, 307 F.3d at 600–01.\n Even if we agreed with Books that Wilson should be read\nmore narrowly, our ensuing reasoning would not travel a\npath that resulted in an award of relief. Both parties agree\nthat the ultimate merits of Books’s Fifth Amendment claim is\nsubject to harmless error review. Indeed, the doctrine of\nharmless error finds straightforward application on the evi-\ndence presented at Books’s trial.\n Not every constitutional error automatically requires the\nreversal of a defendant’s conviction. Instead, as the Supreme\nCourt has explained, “if the government can show ‘beyond a\nreasonable doubt that the error complained of did not con-\ntribute to the verdict obtained,’ … then the error is deemed\nharmless and the defendant is not entitled to reversal.”\nWeaver v. Massachusetts, 137 S. Ct. 1899, 1907 (2017) (quoting\nChapman v. California, 386 U.S. 18, 24 (1967)). This precise\nstandard would apply if Books had testified and was sub-\njected to certain impermissible impeachment. See Arizona v.\n\f12 No. 17-3493\n\nFulminante, 499 U.S. 279, 306 (1991) (holding that the doc-\ntrine of harmless error applies to the violation of the defend-\nant’s Fifth Amendment right against self-incrimination\nthrough the admission at trial of an involuntary confession).\nAnd the same analysis would apply if we accept Books’s\ncontention that the district court’s ruling constructively fore-\nclosed his decision to take the stand. See Ortega v. O’Leary,\n843 F.2d 258, 262 (7th Cir. 1988) (applying harmless error\nanalysis to the denial of the right to testify); Alicea v. Ganon,\n675 F.2d 913, 925 (7th Cir. 1982) (reaching the same conclu-\nsion).\n In reviewing the trial record, our obligation is to deter-\nmine whether any error was harmless beyond a reasonable\ndoubt, and we do so in no small part by evaluating the over-\nall strength of the prosecution’s case. See Jones v. Basinger,\n635 F.3d 1030, 1052 (7th Cir. 2011). On this front, Books faces\nan insurmountable burden because the evidence against him\nat trial was overwhelming: the eyewitness testimony of the\ntwo bank tellers, the text message to a friend indicating his\ndesire to rob a bank, the identification of his car as the geta-\nway vehicle, and the testimony of over a dozen other wit-\nnesses—all in the broader context of his financial diﬃculties\nand prior disputes with the Land of Lincoln Credit Union.\nOn this record, any error in the district court’s pretrial ruling\non the scope of permissible impeachment was harmless be-\nyond a reasonable doubt.\n III\n Two other matters warrant attention. First, relying on\nBrooks v. Tennessee, 406 U.S. 605 (1972), Books argues that the\ndistrict court’s impeachment ruling deprived him of the\n“guiding hand of counsel” by undermining his attorney’s\n\fNo. 17-3493 13\n\nability to make informed and independent decisions about\nthe best trial strategy, including whether Books should take\nthe stand in his own defense. Id. at 612. But Brooks provides\nno refuge, for there the Supreme Court considered a state\nstatute that required a defendant, if he chose to put on a de-\nfense at trial, to be the first defense witness to testify, forcing\na preemptive decision to take the stand absent “a full survey\nof all the case.” Id. at 608. Books, in contrast, faced only the\nuncertainty that often accompanies an unfavorable (and\nperhaps even incorrect) pretrial ruling on the scope of im-\npeachment. Whatever limitations this may have imposed on\nthe strategic choices of Books’s defense, they were far afield\nfrom the extreme circumstances defense counsel confronted\nin Brooks.\n Finally, we reject Books’s invitation to overturn his con-\nviction on the basis of cumulative error. We have reviewed\nthe record carefully and cannot get anywhere near conclud-\ning that there are “multiple errors [that] so infected the jury’s\ndeliberation that they denied the petitioner a fundamentally\nfair trial.” United States v. Allen, 269 F.3d 842, 847 (7th Cir.\n2001). The bottom line is that Books’s cumulative error ar-\ngument cannot overcome the overwhelming evidence pre-\nsented against him at trial.\n For these reasons, we AFFIRM.\n[END_CASE]", "role": "user" } ]
8,443,857	Juan CERVANTES v. ARDAGH GROUP	Cervantes v. Ardagh Grp.	2019-01-29	No. 17-3536	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Barrett, Ripple, Wood", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415284/", "author_raw": ""}]}	BARRETT	RIPPLE	WOOD	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/8443857/	Published	0	1	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Juan CERVANTES v. ARDAGH GROUP\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-29\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]", "role": "user" } ]
8,443,858	Aleksey Arkadyevich RUDERMAN v. Matthew G. WHITAKER, Acting Attorney General of the United States	Ruderman v. Whitaker	2019-01-29	No. 17-1689	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Barrett, Easterbrook, Wood", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415285/", "author_raw": ""}]}	BARRETT	EASTERBROOK	WOOD	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/8443858/	Published	0	1	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Aleksey Arkadyevich RUDERMAN v. Matthew G. WHITAKER, Acting Attorney General of the United States\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-29\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]", "role": "user" } ]
8,443,866	ABS GLOBAL, INC., Plaintiff/Counterclaim and Genus PLC, Counterclaim v. INGURAN, LLC, Doing Business as Sexing Technologies, Defendant/Counterclaim and XY, LLC, Intervening Defendant/Counterclaim	ABS Global, Inc. v. Inguran, LLC	2019-01-29	No. 17-1873	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Barrett, Easterbrook, Wood", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415293/", "author_raw": ""}]}	BARRETT	EASTERBROOK	WOOD	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/8443866/	Published	0	1	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: ABS GLOBAL, INC., Plaintiff/Counterclaim and Genus PLC, Counterclaim v. INGURAN, LLC, Doing Business as Sexing Technologies, Defendant/Counterclaim and XY, LLC, Intervening Defendant/Counterclaim\nCourt: U.S. Court of Appeals for the Seventh Circuit\nDate decided: 2019-01-29\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]", "role": "user" } ]
4,578,284	Matthew Wade PARRISH, Plaintiff - Appellant v. Jason DINGMAN, Individually and in His Official Capacity as Hamilton County Jailer; Dennis Hagenson, Individually and in His Official Capacity as Hamilton County Sheriff; Hamilton County, Iowa, Defendants - Appellees	Matthew Parrish v. Jason Dingman	2019-01-02	17-3705	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Wollman, Colloton, Benton", "parties": "", "opinions": [{"author": "BENTON, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3705\n ___________________________\n\n Matthew Wade Parrish\n\n lllllllllllllllllllllPlaintiff - Appellant\n\n v.\n\n Jason Dingman, Individually and in his Official Capacity as Hamilton County\n Jailer; Dennis Hagenson, Individually and in his Official Capacity as Hamilton\n County Sheriff; Hamilton County, Iowa\n\n lllllllllllllllllllllDefendants - Appellees\n ____________\n\n Appeal from United States District Court\n for the Northern District of Iowa - Ft. Dodge\n ____________\n\n Submitted: October 17, 2018\n Filed: January 2, 2019\n ____________\n\nBefore WOLLMAN, COLLOTON, and BENTON, Circuit Judges.\n ____________\n\nBENTON, Circuit Judge.\n\n Matthew Wade Parrish sued jailer Jason D. Dingman, Sheriff Dennis\nHagenson, and Hamilton County under 42 U.S.C. § 1983 and Iowa law. The district\n\fcourt1 granted qualified immunity to Dingman and summary judgment to the\ndefendants. Parrish v. Dingman, 2017 WL 5560280 (N.D. Iowa Nov. 17, 2017).\nHaving jurisdiction under 28 U.S.C. § 1291, this court affirms.\n\n I.\n\n An Iowa state trooper stopped Parrish at a checkpoint. After testing for\nsobriety and finding marijuana in the vehicle, police transported him to the Hamilton\nCounty Jail. Dingman conducted the booking procedure.\n\n During booking, Parrish told Dingman he had several physical impairments\nfrom breaking his right femur and right arm in a motorcycle accident five years\nearlier. Dingman had heard about the accident and knew Parrish had significant\ninjuries. Parrish walked with a limp. He told Dingman that he wears prescription\nglasses for double vision and special orthotic shoes because his right leg is shorter\nthan his left. Dingman let him keep his shoes and glasses in the holding cell. Parrish\nalso asked for an isolated cell due to his physical impairments. After completing\nintake, Dingman gave Parrish a mattress to make him more comfortable and escorted\nhim to the male holding cell. During booking and intake, Parrish was cooperative.\n\n Surveillance video captured what happened next. Parrish walked through the\ncell door holding the mattress in front of his chest. Dingman was behind him. Seeing\nanother inmate in the cell, Parrish turned to face Dingman and asked again for an\nisolated cell. Dingman shook his head no. Parrish then stepped forward toward the\nopen cell door “to get the doorway open to get [Dingman’s] answer.” The mattress\nprotruded through the cell door.\n\n\n\n\n 1\n The Honorable Leonard T. Strand, Chief Judge, United States District\nCourt for the Northern District of Iowa.\n\n -2-\n\f Dingman believed Parrish was attacking him and trying to leave the holding\ncell. He was concerned Parrish could use the mattress as a shield. Dingman then\nstepped into the cell, pushed Parrish into the wall, leveraged him to the floor with his\nhands on Parrish’s arm and neck, and handcuffed him. Parrish’s right wrist was\nswollen and bruised from the handcuffs. He later received chiropractic treatment for\nlower back pain and four injured ribs. He also sought mental health treatment.\n\n Parrish sued Dingman, Hagenson, and Hamilton County under federal and state\nlaw. The officers and the County invoked qualified and statutory immunity. The\ndistrict court granted them summary judgment. Parrish appeals his claims against\nDingman for excessive force and assault and battery, and his claim against the County\nfor respondeat superior liability.\n\n II.\n\n This court reviews de novo the grant of summary judgment on the basis of\nqualified immunity, “viewing the record in the light most favorable to the nonmoving\nparty and drawing all reasonable inferences in that party’s favor.” Chambers v.\nPennycook, 641 F.3d 898, 904 (8th Cir. 2011). Qualified immunity shields Dingman\nfrom liability in this § 1983 action unless Parrish can show: (1) that Dingman\n“violated a statutory or constitutional right, and (2) that the right was ‘clearly\nestablished’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S.\n731, 735 (2011), quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).\n\n Parrish’s excessive-force claim is governed by the Fourth Amendment’s\nobjective reasonableness standard. Hicks v. Norwood, 640 F.3d 839, 842 (8th Cir.\n2011) (“It is settled in this circuit that the Fourth Amendment’s ‘objective\nreasonableness’ standard for arrestees governs excessive-force claims arising during\nthe booking process.”). To prove a constitutional violation, Parrish must show that\nDingman’s use of force was not objectively reasonable under the particular\n\n\n -3-\n\fcircumstances. Brown v. City of Golden Valley, 574 F.3d 491, 496 (8th Cir. 2009).\nObjective reasonableness is “judged from the perspective of a reasonable officer on\nthe scene, rather than with the 20/20 vision of hindsight.” Graham v. Connor, 490\nU.S. 386, 396 (1989). In determining objective reasonableness, a court may look to\n“the relationship between the need for the use of force and the amount of force used;\nthe extent of the plaintiff’s injury; any effort made by the officer to temper or to limit\nthe amount of force; the severity of the security problem at issue; the threat\nreasonably perceived by the officer; and whether the plaintiff was actively resisting.”\nZubrod v. Hoch, 907 F.3d 568, 577 (8th Cir. 2018), quoting Kingsley v.\nHendrickson, 135 S. Ct. 2466, 2473 (2015). A court must also consider the\n“legitimate interests in managing a jail” and give “deference to policies and practices\nneeded to maintain order and institutional security.” Kingsley, 135 S. Ct. at 2474.\n\n Parrish argues the use of any force was unreasonable because no reasonable\nofficer would think he was actively resisting or posing any threat—he was unarmed,\nhad significant physical impairments, and was cooperative during booking. See\nBrown, 574 F.3d at 499 (“[F]orce is least justified against nonviolent misdemeanants\nwho do not flee or actively resist arrest and pose little or no threat to the security of\nthe officers or the public.”). He contends this case is similar to Shekleton, where the\nuse of force against a suspect with known disabilities was not objectively reasonable.\nShekleton v. Eichenberger, 677 F.3d 361, 366 (8th Cir. 2012). Shekleton, however,\nis factually distinguishable. The suspect was not in jail and posed no threat to the\nofficer. Id. The officer used a taser—more intrusive force than Dingman\nused—despite knowing that Shekleton’s physical disabilities prevented him from\ncomplying with orders to place his hands behind his back. Id.\n\n Parrish was in jail. Jailers like Dingman have an important interest in\nmaintaining order and institutional security within the jail. See Kingsley, 135 S. Ct.\nat 2474. After Dingman refused to give him an isolated cell, Parrish stepped forward\ntoward the open cell door. A reasonable officer could believe Parrish was trying to\n\n\n -4-\n\fleave the holding cell, justifying force to maintain order and security in the jail. Id.\nBy holding the mattress in front of his chest and pushing it through the open door,\nParrish limited Dingman’s ability to close the door and to stop Parrish from leaving\nthe cell. It was reasonable for Dingman to view this as passive resistance and a threat\nto his safety, further justifying the use of force. See Hicks, 640 F.3d at 842\n(explaining the use of force is justified where the officer has a reasonable belief a\ndetainee constitutes a threat to his safety); Wertish v. Krueger, 433 F.3d 1062,\n1066–67 (8th Cir. 2006) (“When a suspect is passively resistant, somewhat more\nforce may reasonably be required.”).\n\n Parrish further contends that the amount of force used was unreasonable.\n“[O]fficers are often forced to make split-second judgments—in circumstances that\nare tense, uncertain, and rapidly evolving—about the amount of force that is\nnecessary in a particular situation.” Graham, 490 U.S. at 397. Dingman was forced\nto make a split-second judgment when Parrish suddenly moved toward an open cell\ndoor holding the mattress. To restrain and handcuff him, Dingman forced him into\nthe wall and leveraged him to the ground. This is a common technique to restrain\nindividuals and was proportional to the need for force. See Blazek v. City of Iowa\nCity, 761 F.3d 920, 923 (8th Cir. 2014) (describing a similar handcuffing technique\nas a “relatively common and ordinarily accepted non-excessive way to detain an\narrestee,” quoting Rodriguez v. Farrell, 280 F.3d 1341, 1351 (11th Cir. 2002));\nHosea v. City of St. Paul, 867 F.3d 949, 958–59 (8th Cir. 2017) (finding no\nconstitutional violation where an officer tackled a suspect after he began complying\nwith orders to lower himself to the ground); Hicks, 640 F.3d at 842 (holding the\nofficer’s use of an arm-bar maneuver to restrain a resistant detainee objectively\nreasonable). Cf. Cravener v. Shuster, 885 F.3d 1135, 1140 (8th Cir. 2018)\n(“Unarmed, passively resisting subjects can pose a threat necessitating the use of taser\nforce.”). Dingman’s handcuffing also complied with Hamilton County Jail policy\nauthorizing the use of “hands” and “compliance holds” against a passively resistant\n\n\n\n -5-\n\finmate. See Kingsley, 135 S. Ct. at 2474 (recognizing courts’ “deference to policies\nand practices needed to maintain order and institutional security is appropriate”).\n\n Due to the need to maintain order and institutional security and Dingman’s\nreasonable belief that Parrish posed a security threat, the amount of force used was\nobjectively reasonable. Because he did not violate Parrish’s constitutional rights,\nDingman is entitled to qualified immunity.\n\n III.\n\n Parrish also appeals the grant of summary judgment on the Iowa state-law\nclaims for assault and battery and respondeat superior liability. To prevent an\narrested person from escaping, Iowa law permits police to use the amount of force\nthat the officer “would be justified in using if the officer . . . were arresting such\nperson.” Iowa Code § 804.13. To make an arrest, police can use “any force which\nthe . . . officer reasonably believes to be necessary to effect the arrest.” Id. § 804.8.\nIowa courts apply an objective reasonableness standard to an officer’s use of force\nunder these statutes. See Chelf v. Civil Serv. Comm’n of Davenport, 515 N.W.2d\n353, 355–56 (Iowa Ct. App. 1994). See also Lawyer v. City of Council Bluffs, 240\nF. Supp. 2d 941, 953 (S.D. Iowa 2002). Because Dingman’s use of force was\nobjectively reasonable, summary judgment was appropriate for the assault and battery\nand respondeat superior claims. See Iowa Code § 670.4(1)(c) (no municipal liability\nwhere the employee “exercis[es] due care[] in the execution of a statute”); Dickens\nv. Associated Anesthesiologists, P.C., 709 N.W.2d 122, 125 (Iowa 2006) (“One of\nthe limitations of the [respondeat superior] doctrine is that the employer has no\nliability unless the employee is liable.”).\n\n *******\n\n The judgment is affirmed.\n\n\n -6-\n\fWOLLMAN, Circuit Judge, concurs in the result.\n ______________________________\n\n\n\n\n -7-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4355537/", "author_raw": "BENTON, Circuit Judge."}]}	WOLLMAN	COLLOTON	BENTON	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4578284/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Matthew Wade PARRISH, Plaintiff - Appellant v. Jason DINGMAN, Individually and in His Official Capacity as Hamilton County Jailer; Dennis Hagenson, Individually and in His Official Capacity as Hamilton County Sheriff; Hamilton County, Iowa, Defendants - Appellees\nCourt: U.S. Court of Appeals for the Eighth Circuit\nDate decided: 2019-01-02\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3705\n ___________________________\n\n Matthew Wade Parrish\n\n lllllllllllllllllllllPlaintiff - Appellant\n\n v.\n\n Jason Dingman, Individually and in his Official Capacity as Hamilton County\n Jailer; Dennis Hagenson, Individually and in his Official Capacity as Hamilton\n County Sheriff; Hamilton County, Iowa\n\n lllllllllllllllllllllDefendants - Appellees\n ____________\n\n Appeal from United States District Court\n for the Northern District of Iowa - Ft. Dodge\n ____________\n\n Submitted: October 17, 2018\n Filed: January 2, 2019\n ____________\n\nBefore WOLLMAN, COLLOTON, and BENTON, Circuit Judges.\n ____________\n\nBENTON, Circuit Judge.\n\n Matthew Wade Parrish sued jailer Jason D. Dingman, Sheriff Dennis\nHagenson, and Hamilton County under 42 U.S.C. § 1983 and Iowa law. The district\n\fcourt1 granted qualified immunity to Dingman and summary judgment to the\ndefendants. Parrish v. Dingman, 2017 WL 5560280 (N.D. Iowa Nov. 17, 2017).\nHaving jurisdiction under 28 U.S.C. § 1291, this court affirms.\n\n I.\n\n An Iowa state trooper stopped Parrish at a checkpoint. After testing for\nsobriety and finding marijuana in the vehicle, police transported him to the Hamilton\nCounty Jail. Dingman conducted the booking procedure.\n\n During booking, Parrish told Dingman he had several physical impairments\nfrom breaking his right femur and right arm in a motorcycle accident five years\nearlier. Dingman had heard about the accident and knew Parrish had significant\ninjuries. Parrish walked with a limp. He told Dingman that he wears prescription\nglasses for double vision and special orthotic shoes because his right leg is shorter\nthan his left. Dingman let him keep his shoes and glasses in the holding cell. Parrish\nalso asked for an isolated cell due to his physical impairments. After completing\nintake, Dingman gave Parrish a mattress to make him more comfortable and escorted\nhim to the male holding cell. During booking and intake, Parrish was cooperative.\n\n Surveillance video captured what happened next. Parrish walked through the\ncell door holding the mattress in front of his chest. Dingman was behind him. Seeing\nanother inmate in the cell, Parrish turned to face Dingman and asked again for an\nisolated cell. Dingman shook his head no. Parrish then stepped forward toward the\nopen cell door “to get the doorway open to get [Dingman’s] answer.” The mattress\nprotruded through the cell door.\n\n\n\n\n 1\n The Honorable Leonard T. Strand, Chief Judge, United States District\nCourt for the Northern District of Iowa.\n\n -2-\n\f Dingman believed Parrish was attacking him and trying to leave the holding\ncell. He was concerned Parrish could use the mattress as a shield. Dingman then\nstepped into the cell, pushed Parrish into the wall, leveraged him to the floor with his\nhands on Parrish’s arm and neck, and handcuffed him. Parrish’s right wrist was\nswollen and bruised from the handcuffs. He later received chiropractic treatment for\nlower back pain and four injured ribs. He also sought mental health treatment.\n\n Parrish sued Dingman, Hagenson, and Hamilton County under federal and state\nlaw. The officers and the County invoked qualified and statutory immunity. The\ndistrict court granted them summary judgment. Parrish appeals his claims against\nDingman for excessive force and assault and battery, and his claim against the County\nfor respondeat superior liability.\n\n II.\n\n This court reviews de novo the grant of summary judgment on the basis of\nqualified immunity, “viewing the record in the light most favorable to the nonmoving\nparty and drawing all reasonable inferences in that party’s favor.” Chambers v.\nPennycook, 641 F.3d 898, 904 (8th Cir. 2011). Qualified immunity shields Dingman\nfrom liability in this § 1983 action unless Parrish can show: (1) that Dingman\n“violated a statutory or constitutional right, and (2) that the right was ‘clearly\nestablished’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S.\n731, 735 (2011), quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).\n\n Parrish’s excessive-force claim is governed by the Fourth Amendment’s\nobjective reasonableness standard. Hicks v. Norwood, 640 F.3d 839, 842 (8th Cir.\n2011) (“It is settled in this circuit that the Fourth Amendment’s ‘objective\nreasonableness’ standard for arrestees governs excessive-force claims arising during\nthe booking process.”). To prove a constitutional violation, Parrish must show that\nDingman’s use of force was not objectively reasonable under the particular\n\n\n -3-\n\fcircumstances. Brown v. City of Golden Valley, 574 F.3d 491, 496 (8th Cir. 2009).\nObjective reasonableness is “judged from the perspective of a reasonable officer on\nthe scene, rather than with the 20/20 vision of hindsight.” Graham v. Connor, 490\nU.S. 386, 396 (1989). In determining objective reasonableness, a court may look to\n“the relationship between the need for the use of force and the amount of force used;\nthe extent of the plaintiff’s injury; any effort made by the officer to temper or to limit\nthe amount of force; the severity of the security problem at issue; the threat\nreasonably perceived by the officer; and whether the plaintiff was actively resisting.”\nZubrod v. Hoch, 907 F.3d 568, 577 (8th Cir. 2018), quoting Kingsley v.\nHendrickson, 135 S. Ct. 2466, 2473 (2015). A court must also consider the\n“legitimate interests in managing a jail” and give “deference to policies and practices\nneeded to maintain order and institutional security.” Kingsley, 135 S. Ct. at 2474.\n\n Parrish argues the use of any force was unreasonable because no reasonable\nofficer would think he was actively resisting or posing any threat—he was unarmed,\nhad significant physical impairments, and was cooperative during booking. See\nBrown, 574 F.3d at 499 (“[F]orce is least justified against nonviolent misdemeanants\nwho do not flee or actively resist arrest and pose little or no threat to the security of\nthe officers or the public.”). He contends this case is similar to Shekleton, where the\nuse of force against a suspect with known disabilities was not objectively reasonable.\nShekleton v. Eichenberger, 677 F.3d 361, 366 (8th Cir. 2012). Shekleton, however,\nis factually distinguishable. The suspect was not in jail and posed no threat to the\nofficer. Id. The officer used a taser—more intrusive force than Dingman\nused—despite knowing that Shekleton’s physical disabilities prevented him from\ncomplying with orders to place his hands behind his back. Id.\n\n Parrish was in jail. Jailers like Dingman have an important interest in\nmaintaining order and institutional security within the jail. See Kingsley, 135 S. Ct.\nat 2474. After Dingman refused to give him an isolated cell, Parrish stepped forward\ntoward the open cell door. A reasonable officer could believe Parrish was trying to\n\n\n -4-\n\fleave the holding cell, justifying force to maintain order and security in the jail. Id.\nBy holding the mattress in front of his chest and pushing it through the open door,\nParrish limited Dingman’s ability to close the door and to stop Parrish from leaving\nthe cell. It was reasonable for Dingman to view this as passive resistance and a threat\nto his safety, further justifying the use of force. See Hicks, 640 F.3d at 842\n(explaining the use of force is justified where the officer has a reasonable belief a\ndetainee constitutes a threat to his safety); Wertish v. Krueger, 433 F.3d 1062,\n1066–67 (8th Cir. 2006) (“When a suspect is passively resistant, somewhat more\nforce may reasonably be required.”).\n\n Parrish further contends that the amount of force used was unreasonable.\n“[O]fficers are often forced to make split-second judgments—in circumstances that\nare tense, uncertain, and rapidly evolving—about the amount of force that is\nnecessary in a particular situation.” Graham, 490 U.S. at 397. Dingman was forced\nto make a split-second judgment when Parrish suddenly moved toward an open cell\ndoor holding the mattress. To restrain and handcuff him, Dingman forced him into\nthe wall and leveraged him to the ground. This is a common technique to restrain\nindividuals and was proportional to the need for force. See Blazek v. City of Iowa\nCity, 761 F.3d 920, 923 (8th Cir. 2014) (describing a similar handcuffing technique\nas a “relatively common and ordinarily accepted non-excessive way to detain an\narrestee,” quoting Rodriguez v. Farrell, 280 F.3d 1341, 1351 (11th Cir. 2002));\nHosea v. City of St. Paul, 867 F.3d 949, 958–59 (8th Cir. 2017) (finding no\nconstitutional violation where an officer tackled a suspect after he began complying\nwith orders to lower himself to the ground); Hicks, 640 F.3d at 842 (holding the\nofficer’s use of an arm-bar maneuver to restrain a resistant detainee objectively\nreasonable). Cf. Cravener v. Shuster, 885 F.3d 1135, 1140 (8th Cir. 2018)\n(“Unarmed, passively resisting subjects can pose a threat necessitating the use of taser\nforce.”). Dingman’s handcuffing also complied with Hamilton County Jail policy\nauthorizing the use of “hands” and “compliance holds” against a passively resistant\n\n\n\n -5-\n\finmate. See Kingsley, 135 S. Ct. at 2474 (recognizing courts’ “deference to policies\nand practices needed to maintain order and institutional security is appropriate”).\n\n Due to the need to maintain order and institutional security and Dingman’s\nreasonable belief that Parrish posed a security threat, the amount of force used was\nobjectively reasonable. Because he did not violate Parrish’s constitutional rights,\nDingman is entitled to qualified immunity.\n\n III.\n\n Parrish also appeals the grant of summary judgment on the Iowa state-law\nclaims for assault and battery and respondeat superior liability. To prevent an\narrested person from escaping, Iowa law permits police to use the amount of force\nthat the officer “would be justified in using if the officer . . . were arresting such\nperson.” Iowa Code § 804.13. To make an arrest, police can use “any force which\nthe . . . officer reasonably believes to be necessary to effect the arrest.” Id. § 804.8.\nIowa courts apply an objective reasonableness standard to an officer’s use of force\nunder these statutes. See Chelf v. Civil Serv. Comm’n of Davenport, 515 N.W.2d\n353, 355–56 (Iowa Ct. App. 1994). See also Lawyer v. City of Council Bluffs, 240\nF. Supp. 2d 941, 953 (S.D. Iowa 2002). Because Dingman’s use of force was\nobjectively reasonable, summary judgment was appropriate for the assault and battery\nand respondeat superior claims. See Iowa Code § 670.4(1)(c) (no municipal liability\nwhere the employee “exercis[es] due care[] in the execution of a statute”); Dickens\nv. Associated Anesthesiologists, P.C., 709 N.W.2d 122, 125 (Iowa 2006) (“One of\nthe limitations of the [respondeat superior] doctrine is that the employer has no\nliability unless the employee is liable.”).\n\n *******\n\n The judgment is affirmed.\n\n\n -6-\n\fWOLLMAN, Circuit Judge, concurs in the result.\n ______________________________\n\n\n\n\n -7-\n[END_CASE]", "role": "user" } ]
4,578,576	Eva Angelica LUCKE, Plaintiff - Appellant v. Andrew SOLSVIG, Individually and in His Capacity as Director, Minot International Airport ; City of Minot, a North Dakota Municipal Corporation, Defendants - Appellees	Eva Angelica Lucke v. Andrew Solsvig	2019-01-03	17-3618	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Shepherd, Kelly, Stras", "parties": "", "opinions": [{"author": "SHEPHERD, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3618\n ___________________________\n\n Eva Angelica Lucke\n\n lllllllllllllllllllllPlaintiff - Appellant\n\n v.\n\nAndrew Solsvig, individually and in his capacity as Director, Minot International\n Airport; City of Minot, a North Dakota Municipal Corporation\n\n lllllllllllllllllllllDefendants - Appellees\n ____________\n\n Appeal from United States District Court\n for the District of North Dakota - Bismarck\n ____________\n\n Submitted: October 17, 2018\n Filed: January 3, 2019\n ____________\n\nBefore SHEPHERD, KELLY, and STRAS, Circuit Judges.\n ____________\n\nSHEPHERD, Circuit Judge.\n\n Appellant, Eva Lucke, owns a building located on property leased from the\nMinot International Airport in Minot, North Dakota. She filed suit against Appellees,\nthe City of Minot and Minot International Airport Director Andrew Solsvig, in his\nindividual and official capacities, alleging racial discrimination in violation of 42\nU.S.C. §§ 1981 and 1983, Title VI of the Civil Rights Act of 1964, and the Equal\n\fProtection Clause of the Fourteenth Amendment. The district court1 granted summary\njudgment in favor of Appellees on all claims. Ms. Lucke appeals. Having\njurisdiction under 28 U.S.C. § 1291, we affirm.\n\n I.\n\n Ms. Lucke, a Hispanic woman, purchased a building on airport property in\n1983 and opened Minot Aviation, an aviation-themed hobby shop, in 1985. She\noriginally ran a crop-spraying business and offered flight lessons out of the remainder\nof the building, but discontinued such operations sometime prior to 2001. Ms. Lucke\nnow leases the majority of her building to her ex-husband, Stewart Lucke, to\nconstruct experimental aircraft.\n\n Ms. Lucke’s most recent written lease with the City of Minot ran from March\n2003 until September 2013. In 2006, the City commenced an unlawful detainer\naction against her, which was dismissed. When her lease ended, she held over as a\nmonth-to-month tenant until December 2015, when the City offered her the lease at\nissue here. The new lease offered Ms. Lucke an 18-month initial term, renewable on\na year-to-year basis with mutual consent, at a rate of $0.30 per square foot per annum.\nFred Anderson, a Caucasian man who owns an inactive crop-spraying business\nlocated on airport property, was offered a lease with identical terms.\n\n After requesting and receiving copies of new leases offered to other tenants\naround the same time, Ms. Lucke determined her offered lease terms compared\nunfavorably to those presented to another tenant, PS Properties, LLP. PS Properties\nwas offered a new lease with an initial term of 20 months, an option to renew for 20\nyears with mutual consent, and an initial rent rate of $0.30 per square foot per year,\n\n\n 1\n The Honorable Daniel L. Hovland, Chief Judge, United States District Court\nfor the District of North Dakota.\n\n -2-\n\fto be adjusted after the first five years. When Ms. Lucke asked Director Solsvig why\nshe was offered different lease terms, Director Solsvig cited the airport’s need for\nflexibility as it redeveloped, as well as concerns about the physical state of Ms.\nLucke’s building and whether her hobby shop qualified as an aeronautical use under\nFAA regulations.\n\n Considering the lease terms offered to her inferior to those offered to PS\nProperties due to the differences in the leases’ initial durations and renewal options,\nMs. Lucke filed suit. She alleged that Appellees presented her with these unfavorable\nlease terms because of her race. Appellees moved for summary judgment. The\ndistrict court granted Appellees’ motion, finding that Ms. Lucke had not presented\nsufficient evidence to establish a prima facie case and that, even if she had, Appellees\npresented legitimate, nondiscriminatory reasons for the differing lease terms and Ms.\nLucke could not establish those reasons were merely pretextual. Ms. Lucke then\nappealed to this Court.\n\n II.\n\n Ms. Lucke argues on appeal that the district court erred in granting Appellees’\nmotion for summary judgment when it concluded that she failed to meet her burden\nof establishing an inference of unlawful discrimination. “We review de novo a grant\nof summary judgment, considering the facts in the light most favorable to the\nnonmoving party.” Meuir v. Greene Cnty. Jail Emps., 487 F.3d 1115, 1118 (8th Cir.\n2007). Summary judgment is appropriate when “there is no genuine dispute as to any\nmaterial fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.\nP. 56(a); see also Doe ex rel. Thomas v. Tsai, 648 F.3d 584, 587 (8th Cir. 2011). The\nnonmoving party must cite to specific facts in the record demonstrating a genuine\nissue of fact for trial and may not rely solely on allegations. Fed. R. Civ. P. 56(c);\nMosley v. City of Northwoods, 415 F.3d 908, 910 (8th Cir. 2005).\n\n\n\n -3-\n\f A plaintiff may prove unlawful racial discrimination through either direct or\ncircumstantial evidence. Young v. Builders Steel Co., 754 F.3d 573, 577 (8th Cir.\n2014). If she presents circumstantial evidence, she must proceed under the\nframework laid out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).\nUnder McDonnell Douglas, a plaintiff may establish a prima facie case of racial\ndiscrimination through evidence giving rise to an inference that she has been\nintentionally discriminated against because of her race. Young, 754 F.3d at 577. She\nmay do so by showing that a similarly-situated person of another race received more\nfavorable treatment. Id. at 578. That person must be “similarly situated in all\nrelevant respects.” Id. (quoting Chappell v. Bilco Co., 675 F.3d 1110, 1119 (8th Cir.\n2012)).\n\n A person is similarly situated to the plaintiff if he or she possesses all the\nrelevant characteristics the plaintiff possesses except for the characteristic about\nwhich the plaintiff alleges discrimination. See Barstad v. Murray Cnty., 420 F.3d\n880, 886-87 (8th Cir. 2005) (landowners denied a permit to build an RV campground\non their land were not similarly situated to successor landowner who received a\npermit to build a dock and two cabins because, even though they sought to improve\nthe same parcel of land, they did not seek to institute the same improvements);\nMeyers v. Ford Motor Co., 659 F.2d 91, 93-94 (8th Cir. 1981) (white male car\ndealership operator who voluntarily terminated his dealership contract without\nnegotiating was not similarly situated to his black male predecessor because the\npredecessor had a long-term relationship with the car company and received a more\nfavorable termination package by negotiating for one). What constitutes a “relevant\nrespect” or characteristic varies based on the context. See Barstad, 420 F.3d at 884-\n85 (land use context); Chappell, 675 F.3d at 1119 (employment context). The\nplaintiff has the burden of locating similarly-situated comparators. Harvey v.\nAnheuser-Busch, Inc., 38 F.3d 968, 972 (8th Cir. 1994).\n\n\n\n\n -4-\n\f If a plaintiff succeeds in establishing her prima facie case, the defendant must\nthen show a “legitimate, non-discriminatory reason” for the challenged conduct.\nYoung, 754 F.3d at 577-78. Legitimate, non-discriminatory reasons must be “clear\nand reasonably specific.” Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 258\n(1981). Examples include that the defendant’s actions stemmed from economic\nmotivations rather than racial animus, see Meyers, 659 F.2d at 94, or, in the\nemployment context, that the plaintiff violated a workplace rule or policy, see\nChappell, 675 F.3d at 1119, or demonstrated poor work performance. Fiero v. CSG\nSys., Inc., 759 F.3d 874, 878 (8th Cir. 2014). Should the defendant articulate such\na reason, the burden shifts back to the plaintiff to show that the offered reason is\npretextual. Young, 754 F.3d at 578. This requires more than merely disputing the\nreason; the plaintiff must present evidence “that the reason was false, and that\ndiscrimination was the real reason.” Ryther v. KARE 11, 108 F.3d 832, 838 n.5 (8th\nCir. 1997) (emphasis omitted) (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,\n515 (1993)).\n\n The plaintiff may show pretext either through discrediting the proffered reasons\nor through showing “that a discriminatory reason more likely motivated the\n[defendant] . . . .” White v. McDonnell Douglas Corp., 985 F.2d 434, 436 (8th Cir.\n1993) (quoting Burdine, 450 U.S. at 256). In this Court, “the applicable standard\n. . . on summary judgment . . . ‘require[s] only that [the] plaintiff adduce enough\nadmissible evidence to raise a genuine doubt as to the legitimacy of the defendant’s\nmotive, even if that evidence [does] not directly contradict or disprove [the]\ndefendant’s articulated reasons for its actions.’” Strate v. Midwest Bankcentre, Inc.,\n398 F.3d 1011, 1021 (8th Cir. 2005) (alterations in original) (emphasis omitted)\n(quoting Davenport v. Riverview Gardens Sch. Dist., 30 F.3d 940, 945 n.8 (8th Cir.\n1994)). However, “[t]he ultimate burden of persuading the trier of fact that the\ndefendant intentionally discriminated against the plaintiff remains at all times with\nthe plaintiff.” Burdine, 450 U.S. at 253.\n\n\n\n -5-\n\f While McDonnell Douglas itself dealt with racial discrimination under Title\nVII of the Civil Rights Act of 1964, see 411 U.S. at 802, we apply its burden-shifting\nframework when analyzing racial discrimination claims in a host of other contexts.\nSee Wimbley v. Cashion, 588 F.3d 959, 961-62 (8th Cir. 2009) (Fourteenth\nAmendment claims); Freeman v. Fahey, 374 F.3d 663, 666 (8th Cir. 2004) (Title VI\nclaims); Richmond v. Bd. of Regents of Univ. of Minn., 957 F.2d 595, 598 (8th Cir.\n1992) (§ 1981 and § 1983 claims). Ms. Lucke relies solely on circumstantial\nevidence in making her claims. Each of her four claims thus falls under the\nMcDonnell Douglas analysis.\n\n The district court found that Ms. Lucke failed to make out a prima facie case\nof discrimination because she did not identify a similarly-situated individual of\nanother race who received more favorable treatment. Ms. Lucke argues that PS\nProperties is similarly situated because she, like PS Properties, operates out of a large\npermanent building with a concrete foundation. However, Appellees counter that PS\nProperties holds ten airport leases and runs an entirely different form of business than\nMs. Lucke runs. They point to Fred Anderson, a male Caucasian, as a similarly-\nsituated individual because, like Ms. Lucke, Anderson owns an inactive crop-\nspraying business and uses his hangar for aircraft storage. Because Anderson\nreceived new lease terms identical to those offered Ms. Lucke, Appellees contend Ms.\nLucke cannot show her new lease terms constitute intentional discrimination against\nher because of her race. See Henry v. Hobbs, 824 F.3d 735, 740 (8th Cir. 2016)\n(“[D]efendants have provided evidence that a similarly-situated Caucasian employee\nwas subject to the same treatment . . . . Thus, the only evidence in the record\nconcerning a similarly situated Caucasian employee undermines [plaintiff]’s claim\nthat his termination was motivated by race.”).\n\n However, even assuming Ms. Lucke successfully states a prima facie case, she\ncannot survive summary judgment because she fails to rebut the nondiscriminatory\nreasons Appellees offered for their conduct. Appellees presented the district court\n\n -6-\n\fwith three legitimate, nondiscriminatory reasons for the differing lease terms: (1) the\nairport’s need for flexibility in its redevelopment efforts; (2) concern over the\nphysical state of Ms. Lucke’s building, and (3) concern over whether a hobby shop\nis an FAA-approved aeronautical use. Ms. Lucke does not dispute on appeal that\nthese reasons are both legitimate and nondiscriminatory. Despite this fact, she does\nnot present evidence showing that an impermissible, discriminatory reason more\nlikely motivated Appellees. See White, 985 F.2d at 436. Ms. Lucke argues only that\nAppellees’ concern over the nature of her business is unjustified and pretextual. Her\nbrief mentions the airport’s need for flexibility only in passing and does not reference\nthe physical state of her building at all. Even though Ms. Lucke is not required to\ndirectly contradict each of Appellees’ stated reasons through evidence, see Strate, 398\nF.3d at 1021, by introducing no evidence at all against either of these arguments, she\ndoes not even raise a genuine doubt as to their legitimacy. Id. Because Ms. Lucke\ncannot discredit Appellees’ proffered reasons, see White, 985 F.2d at 436, and has not\npresented other evidence that raises a genuine doubt as to the legitimacy of\nAppellees’ motives, see Strate, 398 F.3d 1021, she cannot meet her burden under\nMcDonnell Douglas to show discriminatory intent. We therefore find Ms. Lucke\ncannot prevail on her claims.\n\n The district court’s grant of summary judgment is affirmed.\n ______________________________\n\n\n\n\n -7-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4355829/", "author_raw": "SHEPHERD, Circuit Judge."}]}	SHEPHERD	KELLY	STRAS	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4578576/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Eva Angelica LUCKE, Plaintiff - Appellant v. Andrew SOLSVIG, Individually and in His Capacity as Director, Minot International Airport ; City of Minot, a North Dakota Municipal Corporation, Defendants - Appellees\nCourt: U.S. Court of Appeals for the Eighth Circuit\nDate decided: 2019-01-03\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3618\n ___________________________\n\n Eva Angelica Lucke\n\n lllllllllllllllllllllPlaintiff - Appellant\n\n v.\n\nAndrew Solsvig, individually and in his capacity as Director, Minot International\n Airport; City of Minot, a North Dakota Municipal Corporation\n\n lllllllllllllllllllllDefendants - Appellees\n ____________\n\n Appeal from United States District Court\n for the District of North Dakota - Bismarck\n ____________\n\n Submitted: October 17, 2018\n Filed: January 3, 2019\n ____________\n\nBefore SHEPHERD, KELLY, and STRAS, Circuit Judges.\n ____________\n\nSHEPHERD, Circuit Judge.\n\n Appellant, Eva Lucke, owns a building located on property leased from the\nMinot International Airport in Minot, North Dakota. She filed suit against Appellees,\nthe City of Minot and Minot International Airport Director Andrew Solsvig, in his\nindividual and official capacities, alleging racial discrimination in violation of 42\nU.S.C. §§ 1981 and 1983, Title VI of the Civil Rights Act of 1964, and the Equal\n\fProtection Clause of the Fourteenth Amendment. The district court1 granted summary\njudgment in favor of Appellees on all claims. Ms. Lucke appeals. Having\njurisdiction under 28 U.S.C. § 1291, we affirm.\n\n I.\n\n Ms. Lucke, a Hispanic woman, purchased a building on airport property in\n1983 and opened Minot Aviation, an aviation-themed hobby shop, in 1985. She\noriginally ran a crop-spraying business and offered flight lessons out of the remainder\nof the building, but discontinued such operations sometime prior to 2001. Ms. Lucke\nnow leases the majority of her building to her ex-husband, Stewart Lucke, to\nconstruct experimental aircraft.\n\n Ms. Lucke’s most recent written lease with the City of Minot ran from March\n2003 until September 2013. In 2006, the City commenced an unlawful detainer\naction against her, which was dismissed. When her lease ended, she held over as a\nmonth-to-month tenant until December 2015, when the City offered her the lease at\nissue here. The new lease offered Ms. Lucke an 18-month initial term, renewable on\na year-to-year basis with mutual consent, at a rate of $0.30 per square foot per annum.\nFred Anderson, a Caucasian man who owns an inactive crop-spraying business\nlocated on airport property, was offered a lease with identical terms.\n\n After requesting and receiving copies of new leases offered to other tenants\naround the same time, Ms. Lucke determined her offered lease terms compared\nunfavorably to those presented to another tenant, PS Properties, LLP. PS Properties\nwas offered a new lease with an initial term of 20 months, an option to renew for 20\nyears with mutual consent, and an initial rent rate of $0.30 per square foot per year,\n\n\n 1\n The Honorable Daniel L. Hovland, Chief Judge, United States District Court\nfor the District of North Dakota.\n\n -2-\n\fto be adjusted after the first five years. When Ms. Lucke asked Director Solsvig why\nshe was offered different lease terms, Director Solsvig cited the airport’s need for\nflexibility as it redeveloped, as well as concerns about the physical state of Ms.\nLucke’s building and whether her hobby shop qualified as an aeronautical use under\nFAA regulations.\n\n Considering the lease terms offered to her inferior to those offered to PS\nProperties due to the differences in the leases’ initial durations and renewal options,\nMs. Lucke filed suit. She alleged that Appellees presented her with these unfavorable\nlease terms because of her race. Appellees moved for summary judgment. The\ndistrict court granted Appellees’ motion, finding that Ms. Lucke had not presented\nsufficient evidence to establish a prima facie case and that, even if she had, Appellees\npresented legitimate, nondiscriminatory reasons for the differing lease terms and Ms.\nLucke could not establish those reasons were merely pretextual. Ms. Lucke then\nappealed to this Court.\n\n II.\n\n Ms. Lucke argues on appeal that the district court erred in granting Appellees’\nmotion for summary judgment when it concluded that she failed to meet her burden\nof establishing an inference of unlawful discrimination. “We review de novo a grant\nof summary judgment, considering the facts in the light most favorable to the\nnonmoving party.” Meuir v. Greene Cnty. Jail Emps., 487 F.3d 1115, 1118 (8th Cir.\n2007). Summary judgment is appropriate when “there is no genuine dispute as to any\nmaterial fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.\nP. 56(a); see also Doe ex rel. Thomas v. Tsai, 648 F.3d 584, 587 (8th Cir. 2011). The\nnonmoving party must cite to specific facts in the record demonstrating a genuine\nissue of fact for trial and may not rely solely on allegations. Fed. R. Civ. P. 56(c);\nMosley v. City of Northwoods, 415 F.3d 908, 910 (8th Cir. 2005).\n\n\n\n -3-\n\f A plaintiff may prove unlawful racial discrimination through either direct or\ncircumstantial evidence. Young v. Builders Steel Co., 754 F.3d 573, 577 (8th Cir.\n2014). If she presents circumstantial evidence, she must proceed under the\nframework laid out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).\nUnder McDonnell Douglas, a plaintiff may establish a prima facie case of racial\ndiscrimination through evidence giving rise to an inference that she has been\nintentionally discriminated against because of her race. Young, 754 F.3d at 577. She\nmay do so by showing that a similarly-situated person of another race received more\nfavorable treatment. Id. at 578. That person must be “similarly situated in all\nrelevant respects.” Id. (quoting Chappell v. Bilco Co., 675 F.3d 1110, 1119 (8th Cir.\n2012)).\n\n A person is similarly situated to the plaintiff if he or she possesses all the\nrelevant characteristics the plaintiff possesses except for the characteristic about\nwhich the plaintiff alleges discrimination. See Barstad v. Murray Cnty., 420 F.3d\n880, 886-87 (8th Cir. 2005) (landowners denied a permit to build an RV campground\non their land were not similarly situated to successor landowner who received a\npermit to build a dock and two cabins because, even though they sought to improve\nthe same parcel of land, they did not seek to institute the same improvements);\nMeyers v. Ford Motor Co., 659 F.2d 91, 93-94 (8th Cir. 1981) (white male car\ndealership operator who voluntarily terminated his dealership contract without\nnegotiating was not similarly situated to his black male predecessor because the\npredecessor had a long-term relationship with the car company and received a more\nfavorable termination package by negotiating for one). What constitutes a “relevant\nrespect” or characteristic varies based on the context. See Barstad, 420 F.3d at 884-\n85 (land use context); Chappell, 675 F.3d at 1119 (employment context). The\nplaintiff has the burden of locating similarly-situated comparators. Harvey v.\nAnheuser-Busch, Inc., 38 F.3d 968, 972 (8th Cir. 1994).\n\n\n\n\n -4-\n\f If a plaintiff succeeds in establishing her prima facie case, the defendant must\nthen show a “legitimate, non-discriminatory reason” for the challenged conduct.\nYoung, 754 F.3d at 577-78. Legitimate, non-discriminatory reasons must be “clear\nand reasonably specific.” Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 258\n(1981). Examples include that the defendant’s actions stemmed from economic\nmotivations rather than racial animus, see Meyers, 659 F.2d at 94, or, in the\nemployment context, that the plaintiff violated a workplace rule or policy, see\nChappell, 675 F.3d at 1119, or demonstrated poor work performance. Fiero v. CSG\nSys., Inc., 759 F.3d 874, 878 (8th Cir. 2014). Should the defendant articulate such\na reason, the burden shifts back to the plaintiff to show that the offered reason is\npretextual. Young, 754 F.3d at 578. This requires more than merely disputing the\nreason; the plaintiff must present evidence “that the reason was false, and that\ndiscrimination was the real reason.” Ryther v. KARE 11, 108 F.3d 832, 838 n.5 (8th\nCir. 1997) (emphasis omitted) (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,\n515 (1993)).\n\n The plaintiff may show pretext either through discrediting the proffered reasons\nor through showing “that a discriminatory reason more likely motivated the\n[defendant] . . . .” White v. McDonnell Douglas Corp., 985 F.2d 434, 436 (8th Cir.\n1993) (quoting Burdine, 450 U.S. at 256). In this Court, “the applicable standard\n. . . on summary judgment . . . ‘require[s] only that [the] plaintiff adduce enough\nadmissible evidence to raise a genuine doubt as to the legitimacy of the defendant’s\nmotive, even if that evidence [does] not directly contradict or disprove [the]\ndefendant’s articulated reasons for its actions.’” Strate v. Midwest Bankcentre, Inc.,\n398 F.3d 1011, 1021 (8th Cir. 2005) (alterations in original) (emphasis omitted)\n(quoting Davenport v. Riverview Gardens Sch. Dist., 30 F.3d 940, 945 n.8 (8th Cir.\n1994)). However, “[t]he ultimate burden of persuading the trier of fact that the\ndefendant intentionally discriminated against the plaintiff remains at all times with\nthe plaintiff.” Burdine, 450 U.S. at 253.\n\n\n\n -5-\n\f While McDonnell Douglas itself dealt with racial discrimination under Title\nVII of the Civil Rights Act of 1964, see 411 U.S. at 802, we apply its burden-shifting\nframework when analyzing racial discrimination claims in a host of other contexts.\nSee Wimbley v. Cashion, 588 F.3d 959, 961-62 (8th Cir. 2009) (Fourteenth\nAmendment claims); Freeman v. Fahey, 374 F.3d 663, 666 (8th Cir. 2004) (Title VI\nclaims); Richmond v. Bd. of Regents of Univ. of Minn., 957 F.2d 595, 598 (8th Cir.\n1992) (§ 1981 and § 1983 claims). Ms. Lucke relies solely on circumstantial\nevidence in making her claims. Each of her four claims thus falls under the\nMcDonnell Douglas analysis.\n\n The district court found that Ms. Lucke failed to make out a prima facie case\nof discrimination because she did not identify a similarly-situated individual of\nanother race who received more favorable treatment. Ms. Lucke argues that PS\nProperties is similarly situated because she, like PS Properties, operates out of a large\npermanent building with a concrete foundation. However, Appellees counter that PS\nProperties holds ten airport leases and runs an entirely different form of business than\nMs. Lucke runs. They point to Fred Anderson, a male Caucasian, as a similarly-\nsituated individual because, like Ms. Lucke, Anderson owns an inactive crop-\nspraying business and uses his hangar for aircraft storage. Because Anderson\nreceived new lease terms identical to those offered Ms. Lucke, Appellees contend Ms.\nLucke cannot show her new lease terms constitute intentional discrimination against\nher because of her race. See Henry v. Hobbs, 824 F.3d 735, 740 (8th Cir. 2016)\n(“[D]efendants have provided evidence that a similarly-situated Caucasian employee\nwas subject to the same treatment . . . . Thus, the only evidence in the record\nconcerning a similarly situated Caucasian employee undermines [plaintiff]’s claim\nthat his termination was motivated by race.”).\n\n However, even assuming Ms. Lucke successfully states a prima facie case, she\ncannot survive summary judgment because she fails to rebut the nondiscriminatory\nreasons Appellees offered for their conduct. Appellees presented the district court\n\n -6-\n\fwith three legitimate, nondiscriminatory reasons for the differing lease terms: (1) the\nairport’s need for flexibility in its redevelopment efforts; (2) concern over the\nphysical state of Ms. Lucke’s building, and (3) concern over whether a hobby shop\nis an FAA-approved aeronautical use. Ms. Lucke does not dispute on appeal that\nthese reasons are both legitimate and nondiscriminatory. Despite this fact, she does\nnot present evidence showing that an impermissible, discriminatory reason more\nlikely motivated Appellees. See White, 985 F.2d at 436. Ms. Lucke argues only that\nAppellees’ concern over the nature of her business is unjustified and pretextual. Her\nbrief mentions the airport’s need for flexibility only in passing and does not reference\nthe physical state of her building at all. Even though Ms. Lucke is not required to\ndirectly contradict each of Appellees’ stated reasons through evidence, see Strate, 398\nF.3d at 1021, by introducing no evidence at all against either of these arguments, she\ndoes not even raise a genuine doubt as to their legitimacy. Id. Because Ms. Lucke\ncannot discredit Appellees’ proffered reasons, see White, 985 F.2d at 436, and has not\npresented other evidence that raises a genuine doubt as to the legitimacy of\nAppellees’ motives, see Strate, 398 F.3d 1021, she cannot meet her burden under\nMcDonnell Douglas to show discriminatory intent. We therefore find Ms. Lucke\ncannot prevail on her claims.\n\n The district court’s grant of summary judgment is affirmed.\n ______________________________\n\n\n\n\n -7-\n[END_CASE]", "role": "user" } ]
4,578,577	E. D., a Minor, BY AND THROUGH His Parents and Next Friends Anthony DOUGHERTY and Katherine D. Dougherty; Anthony Dougherty, Individually and as Parent of E.D.; Katherine D. Dougherty, Individually and as Parent of E.D. Plaintiffs - Appellants v. PALMYRA R-I SCHOOL DISTRICT Defendant - Appellee	E. Dougherty D. v. Palmyra R-I Sch. Dist.	2019-01-03	18-1095	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Smith, Melloy, Stras", "parties": "", "opinions": [{"author": "STRAS, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 18-1095\n ___________________________\n\n E. D., a Minor, by and through his Parents and Next Friends Anthony Dougherty\n and Katherine D. Dougherty; Anthony Dougherty, individually and as Parent of\n E.D.; Katherine D. Dougherty, individually and as Parent of E.D.\n\n Plaintiffs - Appellants\n\n v.\n\n Palmyra R-I School District\n\n Defendant - Appellee\n\n ____________\n\n Appeal from the United States District Court\n for the Eastern District of Missouri - Hannibal\n ____________\n\n Submitted: September 26, 2018\n Filed: January 3, 2019\n ____________\n\nBefore SMITH, Chief Judge, MELLOY and STRAS, Circuit Judges.\n ____________\n\nSTRAS, Circuit Judge.\n\n At issue here is what parents must do if they decide to sue a school district\nafter refusing special-education services for their child under the Individuals with\nDisabilities Education Act (“IDEA”). Even if they bring a lawsuit under a\ndifferent disability-discrimination law, we conclude that they still must exhaust\ntheir administrative remedies if the relief they seek is “also available” under the\n\fIDEA. 20 U.S.C. § 1415(l). Accordingly, we affirm the district court’s1 grant of\nsummary judgment to Palmyra R-I School District.\n\n I.\n\n E.D. has Down Syndrome. Before he began kindergarten at Palmyra\nElementary School, his mother informed the school that she was seeking\naccommodations for his disability. E.D.’s parents had some specific\naccommodations in mind, though, and made clear that they wanted E.D. placed in a\nregular classroom without special-education instruction.\n\n They sought what they referred to as a “section 504 plan”—after section 504\nof the Rehabilitation Act—which would have provided E.D. with some of the\neducational accommodations otherwise available under the IDEA but without the\nspecialized classes. All they wanted was for E.D. to be able to use an iPad “to\ncompensate for his speech and fine motor delays” and for his teachers to integrate\nhis iPad into their lessons.\n\n The negotiations between E.D.’s parents and the school lasted for\napproximately a year. Twice the school offered an IDEA plan—more commonly\nknown as an Individualized Education Program or “IEP”—instead of the\nsection 504 plan his parents envisioned. The IEPs would have provided all the\niPad-related accommodations his parents sought but would have required him to\nattend special-education classes. E.D.’s parents rejected both IEPs. The second\ntime, they reiterated their desire for a section 504 plan. Palmyra again refused, and\nwith no resolution in sight, E.D.’s parents pulled him out of school just two weeks\nafter he started first grade.\n\n Not long thereafter, the dispute landed in court. E.D.’s parents sued and\nalleged that Palmyra had violated section 504 of the Rehabilitation Act, Title II of\n 1\n The Honorable Catherine D. Perry, United States District Judge for the Eastern\nDistrict of Missouri.\n -2-\n\fthe Americans with Disabilities Act, and the Fourteenth Amendment to the United\nStates Constitution. At the heart of their lawsuit was the claim that, by failing to\nprovide educational accommodations, Palmyra had denied E.D. “access to a free\npublic education.”\n\n In their complaint, E.D.’s parents sought what they had all along: for E.D. to\nuse an iPad to complete his classroom assignments and for his teachers to adapt\ntheir teaching methods to incorporate it. They also requested additional\naccommodations, including a change to the school’s testing formats to account for\nE.D.’s “speech [and] fine motor issues” and more time for him to complete his\n“assignments, tests[,] and homework.”\n\n Palmyra moved for summary judgment on the theory that E.D.’s parents had\nfailed to exhaust the IDEA’s administrative procedures. Even though E.D.’s\nparents had neither sued nor accepted services under the IDEA, Palmyra claimed\nthat they were still required to exhaust their administrative remedies because they\nwere seeking “relief that is also available under [the IDEA].” 20 U.S.C. § 1415(l).\nE.D.’s parents viewed their refusal to accept services as a total opt-out, excusing\nany failure to comply with the IDEA’s procedural requirements. The district court\ndisagreed and granted summary judgment to Palmyra. We now review de novo\nwhether E.D.’s parents had to exhaust their administrative remedies before suing.\nNelson v. Charles City Cmty. Sch. Dist., 900 F.3d 587, 591 (8th Cir. 2018).\n\n II.\n\n The IDEA requires schools receiving federal funds to provide a “free\nappropriate public education” to all children who have qualifying disabilities. 20\nU.S.C. § 1412(a)(1)(A). Because parents and schools do not always agree about\nthe best way to provide a child with a free appropriate public education, “the IDEA\nestablishes formal procedures for resolving disputes.” Fry v. Napoleon Cmty.\nSchs., 137 S. Ct. 743, 749 (2017). Included among them are a “due process\nhearing” before an impartial official and, in certain circumstances, an appeal to a\n\n -3-\n\fstate agency. 20 U.S.C. § 1415(f)(1)(A), (g)(1). Only after parents have exhausted\nthese administrative procedures can they sue in court. Id. § 1415(i)(2)(A).\n\n Other federal laws, including the Americans with Disabilities Act and\nsection 504 of the Rehabilitation Act, also protect children with disabilities from\ndiscrimination at school. Although these laws focus more broadly on ensuring\n“non-discriminatory access to public institutions,” to the extent the discrimination\noccurs in schools, “[t]he same conduct [can] violate all three statutes.” Fry, 137 S.\nCt. at 756; see also id. at 749–50. The IDEA itself recognizes that parents may\npursue relief under multiple statutes, but it requires parents to exhaust their\nadministrative remedies first. See id. at 750. Specifically, it provides that\n\n [n]othing in [the IDEA] shall be construed to restrict or limit the\n rights, procedures, and remedies available under the Constitution, the\n Americans with Disabilities Act of 1990, [or section 504] of the\n Rehabilitation Act of 1973, . . . except that before the filing of a civil\n action under such laws seeking relief that is also available under [the\n IDEA], the [IDEA’s administrative procedures] shall be exhausted to\n the same extent as would be required had the action been brought\n under [the IDEA].\n\n20 U.S.C. § 1415(l).\n\n The complaint in this case includes only claims expressly listed in the first\nhalf of the statute, so all that is in dispute here is the second half, and specifically\nwhether the relief sought “is also available” under the IDEA. E.D.’s parents would\nhave us recognize a categorical exception to the exhaustion requirement for parents\nwho refuse all IDEA services. We decline to do so.\n\n Section 1415(l)’s plain language precludes the exception they seek. All\nparents, not just those who have previously sought or accepted IDEA services,\nmust exhaust the IDEA’s administrative procedures if the relief they seek “is also\navailable under” the IDEA.\n\n\n -4-\n\f We have little trouble concluding that the relief E.D.’s parents seek is\navailable under the IDEA. IDEA exhaustion, as the Supreme Court has recently\nmade clear, “hinges on whether a lawsuit seeks relief for a denial of a free\nappropriate public education.” Fry, 137 S. Ct. at 754. If it does, then exhaustion\nmust occur first. Id. If, however, the lawsuit seeks relief “for simple\ndiscrimination,” only tangentially related to education because the discriminatory\nacts just happened to take place in a school, then exhaustion is unnecessary. See\nid. at 754–56 (explaining that a “simple discrimination” claim would include “a\nwheelchair-bound child [who] sues his school for discrimination . . . because the\nbuilding lacks access ramps”).\n\n “[A] pair of hypothetical questions” is critical to determining whether the\n“gravamen” of the complaint is “the denial of a free appropriate public education”:\n\n First, could the plaintiff have brought essentially the same claim if the\n alleged conduct had occurred at a public facility that was not a\n school—say, a public theater or library? And second, could an adult\n at the school—say, an employee or visitor—have pressed essentially\n the same grievance? . . . [W]hen the answer [to both questions] is no,\n then the complaint probably does concern a [free appropriate public\n education], even if it does not explicitly say so . . . .\n\nId. at 754, 756; see also Nelson, 900 F.3d at 592 (stating that these hypothetical\nquestions are fact-intensive and should not be “approach[ed] . . . at a high[] level of\ngenerality”).\n\n In this case, the answer to both questions is no. E.D. and his parents could\nnot have sued a public theater, public library, or any other public facility for any of\nthe relief they seek—whether it is greater incorporation of his iPad into the\nclassroom or additional time to complete his assignments. Cf. Fry, 137 S. Ct. at\n756–56 (explaining that “a student with a learning disability” who alleged that his\nschool discriminated against him by “failing to provide remedial tutoring in\nmathematics” would be seeking relief for the denial of a free appropriate public\n\n -5-\n\feducation). Nor could any of the claims have been brought by a visitor or\nemployee of the school. E.D.’s parents should have, in other words, exhausted.\n\n It makes no difference that they refused all services under the IDEA. Opting\nout of IDEA services does not unlock a pathway around exhaustion. Indeed, the\nstatute on which E.D.’s parents most heavily rely, 20 U.S.C. § 1414(a)(1)(D), says\nonly that the school must get the parents’ informed consent before providing\nservices under the IDEA, not that a lack of consent will permit them to blow past\nthe exhaustion requirement. See id. § 1414(a)(1)(D)(i)(II), (ii)(II). Accordingly,\nwe conclude that Palmyra was entitled to summary judgment.\n\n III.\n\n We affirm the judgment of the district court.\n ______________________________\n\n\n\n\n -6-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4355830/", "author_raw": "STRAS, Circuit Judge."}]}	SMITH	MELLOY	STRAS	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4578577/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: E. D., a Minor, BY AND THROUGH His Parents and Next Friends Anthony DOUGHERTY and Katherine D. Dougherty; Anthony Dougherty, Individually and as Parent of E.D.; Katherine D. Dougherty, Individually and as Parent of E.D. Plaintiffs - Appellants v. PALMYRA R-I SCHOOL DISTRICT Defendant - Appellee\nCourt: U.S. Court of Appeals for the Eighth Circuit\nDate decided: 2019-01-03\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 18-1095\n ___________________________\n\n E. D., a Minor, by and through his Parents and Next Friends Anthony Dougherty\n and Katherine D. Dougherty; Anthony Dougherty, individually and as Parent of\n E.D.; Katherine D. Dougherty, individually and as Parent of E.D.\n\n Plaintiffs - Appellants\n\n v.\n\n Palmyra R-I School District\n\n Defendant - Appellee\n\n ____________\n\n Appeal from the United States District Court\n for the Eastern District of Missouri - Hannibal\n ____________\n\n Submitted: September 26, 2018\n Filed: January 3, 2019\n ____________\n\nBefore SMITH, Chief Judge, MELLOY and STRAS, Circuit Judges.\n ____________\n\nSTRAS, Circuit Judge.\n\n At issue here is what parents must do if they decide to sue a school district\nafter refusing special-education services for their child under the Individuals with\nDisabilities Education Act (“IDEA”). Even if they bring a lawsuit under a\ndifferent disability-discrimination law, we conclude that they still must exhaust\ntheir administrative remedies if the relief they seek is “also available” under the\n\fIDEA. 20 U.S.C. § 1415(l). Accordingly, we affirm the district court’s1 grant of\nsummary judgment to Palmyra R-I School District.\n\n I.\n\n E.D. has Down Syndrome. Before he began kindergarten at Palmyra\nElementary School, his mother informed the school that she was seeking\naccommodations for his disability. E.D.’s parents had some specific\naccommodations in mind, though, and made clear that they wanted E.D. placed in a\nregular classroom without special-education instruction.\n\n They sought what they referred to as a “section 504 plan”—after section 504\nof the Rehabilitation Act—which would have provided E.D. with some of the\neducational accommodations otherwise available under the IDEA but without the\nspecialized classes. All they wanted was for E.D. to be able to use an iPad “to\ncompensate for his speech and fine motor delays” and for his teachers to integrate\nhis iPad into their lessons.\n\n The negotiations between E.D.’s parents and the school lasted for\napproximately a year. Twice the school offered an IDEA plan—more commonly\nknown as an Individualized Education Program or “IEP”—instead of the\nsection 504 plan his parents envisioned. The IEPs would have provided all the\niPad-related accommodations his parents sought but would have required him to\nattend special-education classes. E.D.’s parents rejected both IEPs. The second\ntime, they reiterated their desire for a section 504 plan. Palmyra again refused, and\nwith no resolution in sight, E.D.’s parents pulled him out of school just two weeks\nafter he started first grade.\n\n Not long thereafter, the dispute landed in court. E.D.’s parents sued and\nalleged that Palmyra had violated section 504 of the Rehabilitation Act, Title II of\n 1\n The Honorable Catherine D. Perry, United States District Judge for the Eastern\nDistrict of Missouri.\n -2-\n\fthe Americans with Disabilities Act, and the Fourteenth Amendment to the United\nStates Constitution. At the heart of their lawsuit was the claim that, by failing to\nprovide educational accommodations, Palmyra had denied E.D. “access to a free\npublic education.”\n\n In their complaint, E.D.’s parents sought what they had all along: for E.D. to\nuse an iPad to complete his classroom assignments and for his teachers to adapt\ntheir teaching methods to incorporate it. They also requested additional\naccommodations, including a change to the school’s testing formats to account for\nE.D.’s “speech [and] fine motor issues” and more time for him to complete his\n“assignments, tests[,] and homework.”\n\n Palmyra moved for summary judgment on the theory that E.D.’s parents had\nfailed to exhaust the IDEA’s administrative procedures. Even though E.D.’s\nparents had neither sued nor accepted services under the IDEA, Palmyra claimed\nthat they were still required to exhaust their administrative remedies because they\nwere seeking “relief that is also available under [the IDEA].” 20 U.S.C. § 1415(l).\nE.D.’s parents viewed their refusal to accept services as a total opt-out, excusing\nany failure to comply with the IDEA’s procedural requirements. The district court\ndisagreed and granted summary judgment to Palmyra. We now review de novo\nwhether E.D.’s parents had to exhaust their administrative remedies before suing.\nNelson v. Charles City Cmty. Sch. Dist., 900 F.3d 587, 591 (8th Cir. 2018).\n\n II.\n\n The IDEA requires schools receiving federal funds to provide a “free\nappropriate public education” to all children who have qualifying disabilities. 20\nU.S.C. § 1412(a)(1)(A). Because parents and schools do not always agree about\nthe best way to provide a child with a free appropriate public education, “the IDEA\nestablishes formal procedures for resolving disputes.” Fry v. Napoleon Cmty.\nSchs., 137 S. Ct. 743, 749 (2017). Included among them are a “due process\nhearing” before an impartial official and, in certain circumstances, an appeal to a\n\n -3-\n\fstate agency. 20 U.S.C. § 1415(f)(1)(A), (g)(1). Only after parents have exhausted\nthese administrative procedures can they sue in court. Id. § 1415(i)(2)(A).\n\n Other federal laws, including the Americans with Disabilities Act and\nsection 504 of the Rehabilitation Act, also protect children with disabilities from\ndiscrimination at school. Although these laws focus more broadly on ensuring\n“non-discriminatory access to public institutions,” to the extent the discrimination\noccurs in schools, “[t]he same conduct [can] violate all three statutes.” Fry, 137 S.\nCt. at 756; see also id. at 749–50. The IDEA itself recognizes that parents may\npursue relief under multiple statutes, but it requires parents to exhaust their\nadministrative remedies first. See id. at 750. Specifically, it provides that\n\n [n]othing in [the IDEA] shall be construed to restrict or limit the\n rights, procedures, and remedies available under the Constitution, the\n Americans with Disabilities Act of 1990, [or section 504] of the\n Rehabilitation Act of 1973, . . . except that before the filing of a civil\n action under such laws seeking relief that is also available under [the\n IDEA], the [IDEA’s administrative procedures] shall be exhausted to\n the same extent as would be required had the action been brought\n under [the IDEA].\n\n20 U.S.C. § 1415(l).\n\n The complaint in this case includes only claims expressly listed in the first\nhalf of the statute, so all that is in dispute here is the second half, and specifically\nwhether the relief sought “is also available” under the IDEA. E.D.’s parents would\nhave us recognize a categorical exception to the exhaustion requirement for parents\nwho refuse all IDEA services. We decline to do so.\n\n Section 1415(l)’s plain language precludes the exception they seek. All\nparents, not just those who have previously sought or accepted IDEA services,\nmust exhaust the IDEA’s administrative procedures if the relief they seek “is also\navailable under” the IDEA.\n\n\n -4-\n\f We have little trouble concluding that the relief E.D.’s parents seek is\navailable under the IDEA. IDEA exhaustion, as the Supreme Court has recently\nmade clear, “hinges on whether a lawsuit seeks relief for a denial of a free\nappropriate public education.” Fry, 137 S. Ct. at 754. If it does, then exhaustion\nmust occur first. Id. If, however, the lawsuit seeks relief “for simple\ndiscrimination,” only tangentially related to education because the discriminatory\nacts just happened to take place in a school, then exhaustion is unnecessary. See\nid. at 754–56 (explaining that a “simple discrimination” claim would include “a\nwheelchair-bound child [who] sues his school for discrimination . . . because the\nbuilding lacks access ramps”).\n\n “[A] pair of hypothetical questions” is critical to determining whether the\n“gravamen” of the complaint is “the denial of a free appropriate public education”:\n\n First, could the plaintiff have brought essentially the same claim if the\n alleged conduct had occurred at a public facility that was not a\n school—say, a public theater or library? And second, could an adult\n at the school—say, an employee or visitor—have pressed essentially\n the same grievance? . . . [W]hen the answer [to both questions] is no,\n then the complaint probably does concern a [free appropriate public\n education], even if it does not explicitly say so . . . .\n\nId. at 754, 756; see also Nelson, 900 F.3d at 592 (stating that these hypothetical\nquestions are fact-intensive and should not be “approach[ed] . . . at a high[] level of\ngenerality”).\n\n In this case, the answer to both questions is no. E.D. and his parents could\nnot have sued a public theater, public library, or any other public facility for any of\nthe relief they seek—whether it is greater incorporation of his iPad into the\nclassroom or additional time to complete his assignments. Cf. Fry, 137 S. Ct. at\n756–56 (explaining that “a student with a learning disability” who alleged that his\nschool discriminated against him by “failing to provide remedial tutoring in\nmathematics” would be seeking relief for the denial of a free appropriate public\n\n -5-\n\feducation). Nor could any of the claims have been brought by a visitor or\nemployee of the school. E.D.’s parents should have, in other words, exhausted.\n\n It makes no difference that they refused all services under the IDEA. Opting\nout of IDEA services does not unlock a pathway around exhaustion. Indeed, the\nstatute on which E.D.’s parents most heavily rely, 20 U.S.C. § 1414(a)(1)(D), says\nonly that the school must get the parents’ informed consent before providing\nservices under the IDEA, not that a lack of consent will permit them to blow past\nthe exhaustion requirement. See id. § 1414(a)(1)(D)(i)(II), (ii)(II). Accordingly,\nwe conclude that Palmyra was entitled to summary judgment.\n\n III.\n\n We affirm the judgment of the district court.\n ______________________________\n\n\n\n\n -6-\n[END_CASE]", "role": "user" } ]
4,578,578	AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Plaintiff - Appellee v. VEIN CENTERS FOR EXCELLENCE, INC., Defendant St. Louis Heart Center, Inc., Defendant - Appellant	American Family Mutual Ins. Co v. St. Louis Heart Center, Inc.	2019-01-03	17-3266	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Colloton, Beam, Grasz", "parties": "", "opinions": [{"author": "GRASZ, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3266\n ___________________________\n\n American Family Mutual Insurance Company\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n v.\n\n Vein Centers for Excellence, Inc.\n\n lllllllllllllllllllllDefendant\n\n St. Louis Heart Center, Inc.\n\n lllllllllllllllllllllDefendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the Eastern District of Missouri - Eastern Division\n ____________\n\n Submitted: September 26, 2018\n Filed: January 3, 2019\n ____________\n\nBefore COLLOTON, BEAM, and GRASZ, Circuit Judges.\n ____________\n\nGRASZ, Circuit Judge.\n\f American Family Mutual Insurance Company (“American Family”) filed a\ncomplaint for declaratory judgment against its insured, Vein Centers for Excellence,\nInc. (“Vein Centers”), disputing American Family’s duty under certain policies to\ndefend and indemnify Vein Centers in a class action lawsuit. St. Louis Heart Center,\nInc. (“St. Louis Heart”) was the class representative in the underlying suit against\nVein Centers and was later joined as a defendant in the declaratory action. The\ndistrict court1 concluded American Family’s insurance policies did not cover the\nclaims against Vein Centers in the class action lawsuit and awarded summary\njudgment in favor of American Family. On appeal, St. Louis Heart argues that\nsubject matter jurisdiction is lacking and that summary judgment in favor of\nAmerican Family was improper. We affirm.\n\n I. Background\n\n In 2011, St. Louis Heart filed a class action petition against Vein Centers for\nsending unsolicited advertisements via facsimile to multiple recipients, alleging a\nviolation of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227.2\nThe district court granted St. Louis Heart’s motion for class certification on\nDecember 11, 2013. Vein Centers subsequently moved to decertify the class and the\ndistrict court granted that motion in 2017.\n\n The merits of the class action are not the subject of this appeal. Rather, the\nissue presented is whether the insurance policies of Vein Centers obligated its\ninsurance provider, American Family, to defend and indemnify the lawsuit.\n\n\n 1\n The Honorable Jean C. Hamilton, United States District Judge for the Eastern\nDistrict of Missouri.\n 2\n The class action petition also included claims for common law conversion and\nviolations of the Missouri Merchandising Practices Act, which were voluntarily\ndismissed.\n\n -2-\n\f Vein Centers tendered the lawsuit to American Family for defense and\nindemnification under two insurance policies: a Businessowners Policy and a\nCommercial Liability Umbrella Policy. American Family agreed to provide a defense\nto Vein Centers subject to a full reservation of rights.\n\n Both policies contained an exclusion for the “Distribution of Material in\nViolation of Statutes.” Under the Businessowners Policy,3 the relevant portion of this\nexclusion barred coverage for:\n\n “Bodily injury”, “property damage”, or “personal and advertising injury”\n arising directly or indirectly out of any action or omission that violates\n or is alleged to violate:\n\n (1) The Telephone Consumer Protection Act (TCPA), including any\n amendment of or addition to such law[.]\n\n In 2015, American Family filed a complaint for declaratory judgment seeking\na declaration that coverage did not exist for the claims alleged in the underlying\nlawsuit. American Family later amended its complaint in 2016, adding St. Louis\nHeart as an additional defendant.\n\n St. Louis Heart moved to dismiss the declaratory action, claiming the district\ncourt lacked subject matter jurisdiction because the amount in controversy did not\nexceed $75,000 as required for diversity jurisdiction under 28 U.S.C. § 1332. St.\nLouis Heart contended the class members’ claims were improperly aggregated to\nsatisfy the amount-in-controversy threshold. The district court rejected this position\nand denied the motion to dismiss.\n\n\n\n\n 3\n The Umbrella Policy contained a substantially similar exclusion.\n\n -3-\n\f The parties filed cross-motions for summary judgment in 2017. American\nFamily argued that neither the Business nor Umbrella policies provided coverage for\nthe TCPA claim in part because both explicitly excluded coverage for violations of\nthe TCPA. St. Louis Heart conceded the TCPA exclusion was enforceable under the\nUmbrella Policy. However, St. Louis Heart contended the exclusion in the\nBusinessowners Policy never took effect because American Family failed to properly\nnotify Vein Centers of the provision’s addition when the policy was renewed. On this\nbasis, St. Louis Heart argued Missouri law dictated it was entitled to indemnification\nunder the Businessowners Policy.\n\n The district court awarded summary judgment in favor of American Family.\nSt. Louis Heart timely appealed both the district court’s denial of its motion to\ndismiss for lack of subject matter jurisdiction and the district court’s summary\njudgment order.\n\n II. Discussion\n\n We begin our discussion with the jurisdictional question raised in St. Louis\nHeart’s motion to dismiss.\n\nA. Subject Matter Jurisdiction\n\n Subject matter jurisdiction of the district courts where based on diversity of\ncitizenship of the parties is governed by 28 U.S.C. § 1332(a)(1), which provides:\n“The district courts shall have original jurisdiction of all civil actions where the\nmatter in controversy exceeds the sum or value of $75,000, exclusive of interest and\ncosts, and is between citizens of different States.”\n\n St. Louis Heart argues the district court lacked subject matter jurisdiction\nunder 28 U.S.C. § 1332 because the $75,000 amount-in-controversy requirement was\n\n -4-\n\fnot met. “The existence of subject-matter jurisdiction is a question of law that this\ncourt reviews de novo.” ABF Freight Sys., Inc. v. Int’l Bhd. of Teamsters, 645 F.3d\n954, 958 (8th Cir. 2011). However, we review the district court’s factual findings\nmade in conjunction with its amount-in-controversy ruling for clear error. Scottsdale\nIns. Co. v. Universal Crop Prot. All., LLC, 620 F.3d 926, 930–31 (8th Cir. 2010).\n\n Typically, complaints need only allege the jurisdictional amount in good faith\nand will be dismissed only if it “appear[s] to a legal certainty that the claim is really\nfor less than the jurisdictional amount.” Scottsdale, 620 F.3d at 931 (alteration in\noriginal) (quoting Kopp v. Kopp, 280 F.3d 883, 884 (8th Cir. 2002)). However, “[i]f\nthe defendant challenges the plaintiff’s allegations of the amount in controversy, then\nthe plaintiff must establish jurisdiction by a preponderance of the evidence.” Id.\n(quoting Kopp, 280 F.3d at 884–85).4 St. Louis Heart’s challenge required American\nFamily to prove, by a preponderance of evidence, that the amount in controversy did\nnot appear to a legal certainty to be $75,000 or less.\n\n “[T]he amount in controversy is measured by the value to the plaintiff of the\nright sought to be enforced.” Federated Mut. Ins. Co. v. Moody Station & Grocery,\n821 F.3d 973, 977 (8th Cir. 2016) (quoting Schubert v. Auto Owners Ins. Co., 649\nF.3d 817, 821 (8th Cir. 2011)). This value is assessed at the time of filing the action.\nScottsdale, 620 F.3d at 931. “Subsequent events reducing the amount in controversy\ndo not destroy diversity jurisdiction,” but they may “be relevant to prove the existence\nor nonexistence of diversity jurisdiction at the time of filing.” Id. In measuring the\n\n\n 4\n When deciding a motion to dismiss under Fed. R. Civ. P. 12(b)(6), courts\ntypically look only to the pleadings and determine whether they state a plausible\nclaim for relief. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 677–80 (2009); Bell Atl.\nCorp. v. Twombly, 550 U.S. 544, 554–56 (2007). But a motion to dismiss for lack of\nsubject matter jurisdiction under Fed. R. Civ. P. 12(b)(1) raises a factual challenge\nto the court’s jurisdiction, and courts may look to evidence outside the pleadings and\nmake factual findings. See Davis v. Anthony, Inc., 886 F.3d 674, 679 (8th Cir. 2018).\n\n -5-\n\fvalue of the plaintiff’s right to be enforced, this Court has recognized a “general rule\n[] that ‘individual class members’ distinct claims for actual damages may not be\naggregated to satisfy the . . . amount-in-controversy requirement for diversity\njurisdiction.’” Kessler v. Nat’l Enters., Inc., 347 F.3d 1076, 1078 (8th Cir. 2003)\n(omission in original) (quoting Crawford v. Hoffman–La Roche Ltd., 267 F.3d 760,\n765 (8th Cir. 2001)).\n\n Application of the foregoing legal standards convinces us the district court did\nnot err in concluding American Family satisfied its burden of establishing the\nminimum amount in controversy for the reasons set forth below.\n\n “In a declaratory judgment action such as this one, wherein an insurer sues an\ninsured to determine its obligation to defend and indemnify, the amount in\ncontroversy . . . ordinarily equals the probable costs of defense and indemnification\nof the underlying litigation less any applicable deductible.” Scottsdale, 620 F.3d at\n932. An adverse judgment against Vein Centers would have entitled St. Louis Heart\nto an award far exceeding the threshold, as evidenced by St. Louis Heart’s motion for\nsummary judgement requesting $17,605,500 plus prejudgment interest. American\nFamily’s insurance policies created the potential for a single indemnity obligation to\nVein Centers in the millions of dollars.5 While the coverage limit is not the measure\nof the amount in controversy, the indemnification amount is, and in this case that\namount clearly exceeds the jurisdictional threshold. And that is to say nothing of the\ncosts of defending the underlying action, which would have likely exceeded $75,000.\n\n On appeal, St. Louis Heart does not argue the potential indemnification was\ninaccurately calculated. Instead, it argues the cost of indemnification was only\n\n\n 5\n The Businessowners Policy contained a liability limit of $2,000,000 per\noccurrence and/or $4,000,000 in the aggregate, and the Umbrella Policy contained a\nliability limit of up to $1,000,000.\n\n -6-\n\farrived at by improperly aggregating the claims of all the class plaintiffs. It is true\nthat the class members here cannot aggregate the indemnification value of their\nclaims to satisfy diversity jurisdiction. “[W]here [plaintiffs’] interests are distinct,\nand their only relationship is that ‘they form a class of parties whose rights or\nliabilities arose out of the same transaction, or have a relation to a common fund or\nmass or property sought to be administered, such distinct demands or liabilities\ncannot be aggregated.’” Crenshaw v. Great Cent. Ins. Co., 482 F.2d 1255, 1259 (8th\nCir. 1973) (quoting Eagle Star Ins. Co. v. Maltes, 313 F.2d 778, 780 (3d Cir. 1963)).\nBut that is not what occurred here. “From [American Family’s] perspective, there is\nonly one claim—by its insured,” Vein Centers, “for the sum of defense and indemnity\ncosts.” Meridian Sec. Ins. Co. v. Sadowski, 441 F.3d 536, 539 (7th Cir. 2006).\n\n American Family relies only on its own potential indemnification liability and\ndefense costs to satisfy the jurisdictional threshold, which distinguishes this case from\nthe various cases cited by St. Louis Heart.6 As our sister circuit explained, “the anti-\naggregation rule does not apply to a federal declaratory-judgment action between a\nsingle plaintiff and a single defendant, just because the unitary controversy between\n\n 6\n See Crenshaw, 482 F.2d at 1259–60 (holding two separate and distinct\nplaintiffs could not aggregate their claims); Siding & Insulation Co., Inc. v. Acuity\nMut. Ins. Co., 754 F.3d 367, 368–69, 372–73 (6th Cir. 2014) (holding class members\ncould not aggregate their claims to satisfy the amount in controversy threshold in a\ndeclaratory judgment against an insurer); CE Design Ltd. v. Am. Econ. Ins. Co., 755\nF.3d 39, 44–45 (1st Cir. 2014) (holding class plaintiffs in an action alleging violation\nof the TCPA could not aggregate their claims or view the amount in controversy from\nthe perspective of the defendant insurer); Travelers Prop. Cas. v. Good, 689 F.3d 714\n(7th Cir. 2012) (holding diversity jurisdiction did not exist where the insured\ndefendant in a class lawsuit assigned its right to class plaintiffs, and the insurance\ncompanies in turn brought a declaratory action against the class claimants regarding\ncoverage obligations); Friedman v. New York Life Ins. Co., 410 F.3d 1350 (11th Cir.\n2005) (holding the district court did not have diversity jurisdiction over a class action\nbrought by insured class members because the insureds’ claims could not be\naggregated to satisfy the amount in controversy threshold).\n\n -7-\n\fthese parties reflects the sum of many smaller controversies. No more need be said\non this subject.” Meridian, 441 F.3d at 539.\n\n Subject matter jurisdiction over this action was proper under 28 U.S.C.\n§ 1332(a)(1).\n\nB. Summary Judgment\n\n We next address St. Louis Heart’s argument that summary judgment in favor\nof American Family was improper. The district court granted summary judgment\nafter concluding the “Distribution of Material in Violation of Statutes” provision was\na valid exclusion from the Businessowners Policy. St. Louis Heart appeals this\nconclusion, arguing the exclusion constituted a constructive nonrenewal of the\nBusinessowners Policy, for which American Family failed to provide notice.\nAmerican Family does not dispute their obligation to provide notice of the\nconstructive nonrenewal. Instead, they claim they sufficiently demonstrated\ncompliance with the notice obligation. We agree.\n\n “We . . . review de novo the district court’s resolution of cross-motions for\nsummary judgment viewing the evidence in the light most favorable to the\nnonmoving party and giving the nonmoving party the benefit of all reasonable\ninferences.” Fed. Ins. Co. v. Great Am. Ins. Co., 893 F.3d 1098, 1102 (8th Cir. 2018)\n(omission in original) (quoting LaCurtis v. Express Med. Transporters, Inc., 856 F.3d\n571, 576 (8th Cir. 2017)). “Summary judgment is required ‘if the movant shows that\nthere is no genuine dispute as to any material fact and the movant is entitled to\njudgment as a matter of law.’” Id. (quoting LaCurtis, 856 F.3d at 576–77).\n\n Under Missouri law, which both parties agree controls in this diversity case,\n“[n]o notice of nonrenewal of a commercial casualty insurance policy shall be\neffective unless mailed or delivered by the insurer to the named insured at least sixty\n\n -8-\n\fdays prior to the effective date of the nonrenewal.” Mo. Rev. Stat. § 379.883(2). An\ninsurer’s “tendering of a policy with a significant change in coverage constitute[s] a\nconstructive nonrenewal,” triggering notice requirements. Resolution Tr. Corp. v.\nAm. Cas. Co., 874 F. Supp. 961, 967 (E.D. Mo. 1995) (applying Missouri law).\n\n Missouri law recognizes a presumption as to receipt of mailed materials.\nSpecifically, “[t]here is a presumption that a letter duly mailed has been received by\nthe addressee.” Ins. Placements, Inc. v. Utica Mut. Ins. Co., 917 S.W.2d 592, 595\n(Mo. Ct. App. 1992) (citing Shelter Mut. Ins. Co. v. Flint, 837 S.W.2d 524, 528 (Mo.\nCt. App. 1992)). This presumption of receipt by the addressee can be triggered even\nin the absence of direct proof that a particular letter was mailed. See id. at 595–96\n(citing same). In circumstances where the customary volume of mail would render\nproof impractical or infeasible, the purported sender may rely on “evidence of the\nsettled custom and usage of the sender in the regular and systematic transaction of its\nbusiness” to establish the presumption. Id. at 595 (citing same).\n\n In light of this legal framework, American Family is entitled to the presumption\nthat Vein Centers received notice of the policy exclusion. To establish compliance\nwith the notice requirements under Missouri law, American Family offered the\ndeposition testimony of Ms. Deborah Woodcock, one of its corporate representatives.\nMs. Woodcock testified that American Family mailed a Coverage Summary Letter\n(“CSL”) to Vein Centers more than sixty days prior to the Businessowners Policy\nrenewal date. Ms. Woodcock further testified that it was American Family’s standard\nbusiness practice to include with the CSL a Policyholder Communication (“PLC”),\nwhich is a notification of changes made to an insured’s policy. Ms. Woodcock went\non to identify an internal communication sent to American Family agents and staff,\nwhich indicated current holders of the Businessowners Policy would be sent a PLC\nnotification setting forth the newly instituted “Distribution of Material in Violation\nof Statutes” exclusion. While Ms. Woodcock could not produce an actual copy of\nthis PLC addressed to Vein Centers, her testimony established it was likely mailed\n\n -9-\n\fto Vein Centers as part of American Family’s custom and procedure of transacting\nbusiness. This evidence creates the presumption that Vein Centers received notice\nof the exclusion.\n\n The presumption of a letter’s receipt is not unassailable. When a purported\nsender presents evidence that a letter was mailed, the presumption of receipt “may be\nrebutted by evidence it was not, in fact, received.” Id. (citing Williams v. Northeast\nMut. Ins. Ass’n, 72 S.W.2d 166, 167 (Mo. Ct. App. 1934)). If the presumption is\nrebutted with evidence of non-receipt, the question of receipt is left “for the\ndetermination of the jury under all of the facts and circumstances of the case.” Id.\nHowever, St. Louis Heart has made no such rebuttal.\n\n St. Louis Heart failed to submit any evidence which would indicate Vein\nCenters did not, in fact, receive the CSL and PLC. Instead, St. Louis Heart argues\nMs. Woodcock’s testimony was insufficient to establish the presumption of receipt\nin the first place. It highlights the lack of definitive proof that the PLC was sent and\nnotes that Ms. Woodcock did not personally send the documents and lacks personal\nknowledge as to whether the documents were sent. But Missouri law does not require\ndirect proof or personal knowledge of mailing; only “evidence of the settled custom\nand usage of the sender in the regular and systematic transaction of its business.”\nFlint, 837 S.W.2d at 528 (quoting Hills v. McComas Rentals, Inc., 779 S.W.2d 297,\n299 (Mo. Ct. App. 1989)). Speculation that American Family’s normal business\nprocedures were not followed in this case is not the same as affirmative evidence that\nVein Centers did not receive the documents. In short, St. Louis Heart has not\nprovided a sufficient evidentiary basis to rebut the presumption that Vein Centers\nreceived notice.\n\n Summary judgment in favor of American Family was proper because St. Louis\nHeart has not provided any evidence that adequate notice of the exclusion was not\nprovided to Vein Centers.\n\n -10-\n\f III. Conclusion\n\n We affirm both the district court’s finding of jurisdiction and its summary\njudgment order in favor of American Family.7\n ______________________________\n\n\n\n\n 7\n We grant American Family’s motion to supplement its Supplemental\nAppendix.\n\n -11-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4355831/", "author_raw": "GRASZ, Circuit Judge."}]}	COLLOTON	BEAM	GRASZ	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4578578/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Plaintiff - Appellee v. VEIN CENTERS FOR EXCELLENCE, INC., Defendant St. Louis Heart Center, Inc., Defendant - Appellant\nCourt: U.S. Court of Appeals for the Eighth Circuit\nDate decided: 2019-01-03\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3266\n ___________________________\n\n American Family Mutual Insurance Company\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n v.\n\n Vein Centers for Excellence, Inc.\n\n lllllllllllllllllllllDefendant\n\n St. Louis Heart Center, Inc.\n\n lllllllllllllllllllllDefendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the Eastern District of Missouri - Eastern Division\n ____________\n\n Submitted: September 26, 2018\n Filed: January 3, 2019\n ____________\n\nBefore COLLOTON, BEAM, and GRASZ, Circuit Judges.\n ____________\n\nGRASZ, Circuit Judge.\n\f American Family Mutual Insurance Company (“American Family”) filed a\ncomplaint for declaratory judgment against its insured, Vein Centers for Excellence,\nInc. (“Vein Centers”), disputing American Family’s duty under certain policies to\ndefend and indemnify Vein Centers in a class action lawsuit. St. Louis Heart Center,\nInc. (“St. Louis Heart”) was the class representative in the underlying suit against\nVein Centers and was later joined as a defendant in the declaratory action. The\ndistrict court1 concluded American Family’s insurance policies did not cover the\nclaims against Vein Centers in the class action lawsuit and awarded summary\njudgment in favor of American Family. On appeal, St. Louis Heart argues that\nsubject matter jurisdiction is lacking and that summary judgment in favor of\nAmerican Family was improper. We affirm.\n\n I. Background\n\n In 2011, St. Louis Heart filed a class action petition against Vein Centers for\nsending unsolicited advertisements via facsimile to multiple recipients, alleging a\nviolation of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227.2\nThe district court granted St. Louis Heart’s motion for class certification on\nDecember 11, 2013. Vein Centers subsequently moved to decertify the class and the\ndistrict court granted that motion in 2017.\n\n The merits of the class action are not the subject of this appeal. Rather, the\nissue presented is whether the insurance policies of Vein Centers obligated its\ninsurance provider, American Family, to defend and indemnify the lawsuit.\n\n\n 1\n The Honorable Jean C. Hamilton, United States District Judge for the Eastern\nDistrict of Missouri.\n 2\n The class action petition also included claims for common law conversion and\nviolations of the Missouri Merchandising Practices Act, which were voluntarily\ndismissed.\n\n -2-\n\f Vein Centers tendered the lawsuit to American Family for defense and\nindemnification under two insurance policies: a Businessowners Policy and a\nCommercial Liability Umbrella Policy. American Family agreed to provide a defense\nto Vein Centers subject to a full reservation of rights.\n\n Both policies contained an exclusion for the “Distribution of Material in\nViolation of Statutes.” Under the Businessowners Policy,3 the relevant portion of this\nexclusion barred coverage for:\n\n “Bodily injury”, “property damage”, or “personal and advertising injury”\n arising directly or indirectly out of any action or omission that violates\n or is alleged to violate:\n\n (1) The Telephone Consumer Protection Act (TCPA), including any\n amendment of or addition to such law[.]\n\n In 2015, American Family filed a complaint for declaratory judgment seeking\na declaration that coverage did not exist for the claims alleged in the underlying\nlawsuit. American Family later amended its complaint in 2016, adding St. Louis\nHeart as an additional defendant.\n\n St. Louis Heart moved to dismiss the declaratory action, claiming the district\ncourt lacked subject matter jurisdiction because the amount in controversy did not\nexceed $75,000 as required for diversity jurisdiction under 28 U.S.C. § 1332. St.\nLouis Heart contended the class members’ claims were improperly aggregated to\nsatisfy the amount-in-controversy threshold. The district court rejected this position\nand denied the motion to dismiss.\n\n\n\n\n 3\n The Umbrella Policy contained a substantially similar exclusion.\n\n -3-\n\f The parties filed cross-motions for summary judgment in 2017. American\nFamily argued that neither the Business nor Umbrella policies provided coverage for\nthe TCPA claim in part because both explicitly excluded coverage for violations of\nthe TCPA. St. Louis Heart conceded the TCPA exclusion was enforceable under the\nUmbrella Policy. However, St. Louis Heart contended the exclusion in the\nBusinessowners Policy never took effect because American Family failed to properly\nnotify Vein Centers of the provision’s addition when the policy was renewed. On this\nbasis, St. Louis Heart argued Missouri law dictated it was entitled to indemnification\nunder the Businessowners Policy.\n\n The district court awarded summary judgment in favor of American Family.\nSt. Louis Heart timely appealed both the district court’s denial of its motion to\ndismiss for lack of subject matter jurisdiction and the district court’s summary\njudgment order.\n\n II. Discussion\n\n We begin our discussion with the jurisdictional question raised in St. Louis\nHeart’s motion to dismiss.\n\nA. Subject Matter Jurisdiction\n\n Subject matter jurisdiction of the district courts where based on diversity of\ncitizenship of the parties is governed by 28 U.S.C. § 1332(a)(1), which provides:\n“The district courts shall have original jurisdiction of all civil actions where the\nmatter in controversy exceeds the sum or value of $75,000, exclusive of interest and\ncosts, and is between citizens of different States.”\n\n St. Louis Heart argues the district court lacked subject matter jurisdiction\nunder 28 U.S.C. § 1332 because the $75,000 amount-in-controversy requirement was\n\n -4-\n\fnot met. “The existence of subject-matter jurisdiction is a question of law that this\ncourt reviews de novo.” ABF Freight Sys., Inc. v. Int’l Bhd. of Teamsters, 645 F.3d\n954, 958 (8th Cir. 2011). However, we review the district court’s factual findings\nmade in conjunction with its amount-in-controversy ruling for clear error. Scottsdale\nIns. Co. v. Universal Crop Prot. All., LLC, 620 F.3d 926, 930–31 (8th Cir. 2010).\n\n Typically, complaints need only allege the jurisdictional amount in good faith\nand will be dismissed only if it “appear[s] to a legal certainty that the claim is really\nfor less than the jurisdictional amount.” Scottsdale, 620 F.3d at 931 (alteration in\noriginal) (quoting Kopp v. Kopp, 280 F.3d 883, 884 (8th Cir. 2002)). However, “[i]f\nthe defendant challenges the plaintiff’s allegations of the amount in controversy, then\nthe plaintiff must establish jurisdiction by a preponderance of the evidence.” Id.\n(quoting Kopp, 280 F.3d at 884–85).4 St. Louis Heart’s challenge required American\nFamily to prove, by a preponderance of evidence, that the amount in controversy did\nnot appear to a legal certainty to be $75,000 or less.\n\n “[T]he amount in controversy is measured by the value to the plaintiff of the\nright sought to be enforced.” Federated Mut. Ins. Co. v. Moody Station & Grocery,\n821 F.3d 973, 977 (8th Cir. 2016) (quoting Schubert v. Auto Owners Ins. Co., 649\nF.3d 817, 821 (8th Cir. 2011)). This value is assessed at the time of filing the action.\nScottsdale, 620 F.3d at 931. “Subsequent events reducing the amount in controversy\ndo not destroy diversity jurisdiction,” but they may “be relevant to prove the existence\nor nonexistence of diversity jurisdiction at the time of filing.” Id. In measuring the\n\n\n 4\n When deciding a motion to dismiss under Fed. R. Civ. P. 12(b)(6), courts\ntypically look only to the pleadings and determine whether they state a plausible\nclaim for relief. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 677–80 (2009); Bell Atl.\nCorp. v. Twombly, 550 U.S. 544, 554–56 (2007). But a motion to dismiss for lack of\nsubject matter jurisdiction under Fed. R. Civ. P. 12(b)(1) raises a factual challenge\nto the court’s jurisdiction, and courts may look to evidence outside the pleadings and\nmake factual findings. See Davis v. Anthony, Inc., 886 F.3d 674, 679 (8th Cir. 2018).\n\n -5-\n\fvalue of the plaintiff’s right to be enforced, this Court has recognized a “general rule\n[] that ‘individual class members’ distinct claims for actual damages may not be\naggregated to satisfy the . . . amount-in-controversy requirement for diversity\njurisdiction.’” Kessler v. Nat’l Enters., Inc., 347 F.3d 1076, 1078 (8th Cir. 2003)\n(omission in original) (quoting Crawford v. Hoffman–La Roche Ltd., 267 F.3d 760,\n765 (8th Cir. 2001)).\n\n Application of the foregoing legal standards convinces us the district court did\nnot err in concluding American Family satisfied its burden of establishing the\nminimum amount in controversy for the reasons set forth below.\n\n “In a declaratory judgment action such as this one, wherein an insurer sues an\ninsured to determine its obligation to defend and indemnify, the amount in\ncontroversy . . . ordinarily equals the probable costs of defense and indemnification\nof the underlying litigation less any applicable deductible.” Scottsdale, 620 F.3d at\n932. An adverse judgment against Vein Centers would have entitled St. Louis Heart\nto an award far exceeding the threshold, as evidenced by St. Louis Heart’s motion for\nsummary judgement requesting $17,605,500 plus prejudgment interest. American\nFamily’s insurance policies created the potential for a single indemnity obligation to\nVein Centers in the millions of dollars.5 While the coverage limit is not the measure\nof the amount in controversy, the indemnification amount is, and in this case that\namount clearly exceeds the jurisdictional threshold. And that is to say nothing of the\ncosts of defending the underlying action, which would have likely exceeded $75,000.\n\n On appeal, St. Louis Heart does not argue the potential indemnification was\ninaccurately calculated. Instead, it argues the cost of indemnification was only\n\n\n 5\n The Businessowners Policy contained a liability limit of $2,000,000 per\noccurrence and/or $4,000,000 in the aggregate, and the Umbrella Policy contained a\nliability limit of up to $1,000,000.\n\n -6-\n\farrived at by improperly aggregating the claims of all the class plaintiffs. It is true\nthat the class members here cannot aggregate the indemnification value of their\nclaims to satisfy diversity jurisdiction. “[W]here [plaintiffs’] interests are distinct,\nand their only relationship is that ‘they form a class of parties whose rights or\nliabilities arose out of the same transaction, or have a relation to a common fund or\nmass or property sought to be administered, such distinct demands or liabilities\ncannot be aggregated.’” Crenshaw v. Great Cent. Ins. Co., 482 F.2d 1255, 1259 (8th\nCir. 1973) (quoting Eagle Star Ins. Co. v. Maltes, 313 F.2d 778, 780 (3d Cir. 1963)).\nBut that is not what occurred here. “From [American Family’s] perspective, there is\nonly one claim—by its insured,” Vein Centers, “for the sum of defense and indemnity\ncosts.” Meridian Sec. Ins. Co. v. Sadowski, 441 F.3d 536, 539 (7th Cir. 2006).\n\n American Family relies only on its own potential indemnification liability and\ndefense costs to satisfy the jurisdictional threshold, which distinguishes this case from\nthe various cases cited by St. Louis Heart.6 As our sister circuit explained, “the anti-\naggregation rule does not apply to a federal declaratory-judgment action between a\nsingle plaintiff and a single defendant, just because the unitary controversy between\n\n 6\n See Crenshaw, 482 F.2d at 1259–60 (holding two separate and distinct\nplaintiffs could not aggregate their claims); Siding & Insulation Co., Inc. v. Acuity\nMut. Ins. Co., 754 F.3d 367, 368–69, 372–73 (6th Cir. 2014) (holding class members\ncould not aggregate their claims to satisfy the amount in controversy threshold in a\ndeclaratory judgment against an insurer); CE Design Ltd. v. Am. Econ. Ins. Co., 755\nF.3d 39, 44–45 (1st Cir. 2014) (holding class plaintiffs in an action alleging violation\nof the TCPA could not aggregate their claims or view the amount in controversy from\nthe perspective of the defendant insurer); Travelers Prop. Cas. v. Good, 689 F.3d 714\n(7th Cir. 2012) (holding diversity jurisdiction did not exist where the insured\ndefendant in a class lawsuit assigned its right to class plaintiffs, and the insurance\ncompanies in turn brought a declaratory action against the class claimants regarding\ncoverage obligations); Friedman v. New York Life Ins. Co., 410 F.3d 1350 (11th Cir.\n2005) (holding the district court did not have diversity jurisdiction over a class action\nbrought by insured class members because the insureds’ claims could not be\naggregated to satisfy the amount in controversy threshold).\n\n -7-\n\fthese parties reflects the sum of many smaller controversies. No more need be said\non this subject.” Meridian, 441 F.3d at 539.\n\n Subject matter jurisdiction over this action was proper under 28 U.S.C.\n§ 1332(a)(1).\n\nB. Summary Judgment\n\n We next address St. Louis Heart’s argument that summary judgment in favor\nof American Family was improper. The district court granted summary judgment\nafter concluding the “Distribution of Material in Violation of Statutes” provision was\na valid exclusion from the Businessowners Policy. St. Louis Heart appeals this\nconclusion, arguing the exclusion constituted a constructive nonrenewal of the\nBusinessowners Policy, for which American Family failed to provide notice.\nAmerican Family does not dispute their obligation to provide notice of the\nconstructive nonrenewal. Instead, they claim they sufficiently demonstrated\ncompliance with the notice obligation. We agree.\n\n “We . . . review de novo the district court’s resolution of cross-motions for\nsummary judgment viewing the evidence in the light most favorable to the\nnonmoving party and giving the nonmoving party the benefit of all reasonable\ninferences.” Fed. Ins. Co. v. Great Am. Ins. Co., 893 F.3d 1098, 1102 (8th Cir. 2018)\n(omission in original) (quoting LaCurtis v. Express Med. Transporters, Inc., 856 F.3d\n571, 576 (8th Cir. 2017)). “Summary judgment is required ‘if the movant shows that\nthere is no genuine dispute as to any material fact and the movant is entitled to\njudgment as a matter of law.’” Id. (quoting LaCurtis, 856 F.3d at 576–77).\n\n Under Missouri law, which both parties agree controls in this diversity case,\n“[n]o notice of nonrenewal of a commercial casualty insurance policy shall be\neffective unless mailed or delivered by the insurer to the named insured at least sixty\n\n -8-\n\fdays prior to the effective date of the nonrenewal.” Mo. Rev. Stat. § 379.883(2). An\ninsurer’s “tendering of a policy with a significant change in coverage constitute[s] a\nconstructive nonrenewal,” triggering notice requirements. Resolution Tr. Corp. v.\nAm. Cas. Co., 874 F. Supp. 961, 967 (E.D. Mo. 1995) (applying Missouri law).\n\n Missouri law recognizes a presumption as to receipt of mailed materials.\nSpecifically, “[t]here is a presumption that a letter duly mailed has been received by\nthe addressee.” Ins. Placements, Inc. v. Utica Mut. Ins. Co., 917 S.W.2d 592, 595\n(Mo. Ct. App. 1992) (citing Shelter Mut. Ins. Co. v. Flint, 837 S.W.2d 524, 528 (Mo.\nCt. App. 1992)). This presumption of receipt by the addressee can be triggered even\nin the absence of direct proof that a particular letter was mailed. See id. at 595–96\n(citing same). In circumstances where the customary volume of mail would render\nproof impractical or infeasible, the purported sender may rely on “evidence of the\nsettled custom and usage of the sender in the regular and systematic transaction of its\nbusiness” to establish the presumption. Id. at 595 (citing same).\n\n In light of this legal framework, American Family is entitled to the presumption\nthat Vein Centers received notice of the policy exclusion. To establish compliance\nwith the notice requirements under Missouri law, American Family offered the\ndeposition testimony of Ms. Deborah Woodcock, one of its corporate representatives.\nMs. Woodcock testified that American Family mailed a Coverage Summary Letter\n(“CSL”) to Vein Centers more than sixty days prior to the Businessowners Policy\nrenewal date. Ms. Woodcock further testified that it was American Family’s standard\nbusiness practice to include with the CSL a Policyholder Communication (“PLC”),\nwhich is a notification of changes made to an insured’s policy. Ms. Woodcock went\non to identify an internal communication sent to American Family agents and staff,\nwhich indicated current holders of the Businessowners Policy would be sent a PLC\nnotification setting forth the newly instituted “Distribution of Material in Violation\nof Statutes” exclusion. While Ms. Woodcock could not produce an actual copy of\nthis PLC addressed to Vein Centers, her testimony established it was likely mailed\n\n -9-\n\fto Vein Centers as part of American Family’s custom and procedure of transacting\nbusiness. This evidence creates the presumption that Vein Centers received notice\nof the exclusion.\n\n The presumption of a letter’s receipt is not unassailable. When a purported\nsender presents evidence that a letter was mailed, the presumption of receipt “may be\nrebutted by evidence it was not, in fact, received.” Id. (citing Williams v. Northeast\nMut. Ins. Ass’n, 72 S.W.2d 166, 167 (Mo. Ct. App. 1934)). If the presumption is\nrebutted with evidence of non-receipt, the question of receipt is left “for the\ndetermination of the jury under all of the facts and circumstances of the case.” Id.\nHowever, St. Louis Heart has made no such rebuttal.\n\n St. Louis Heart failed to submit any evidence which would indicate Vein\nCenters did not, in fact, receive the CSL and PLC. Instead, St. Louis Heart argues\nMs. Woodcock’s testimony was insufficient to establish the presumption of receipt\nin the first place. It highlights the lack of definitive proof that the PLC was sent and\nnotes that Ms. Woodcock did not personally send the documents and lacks personal\nknowledge as to whether the documents were sent. But Missouri law does not require\ndirect proof or personal knowledge of mailing; only “evidence of the settled custom\nand usage of the sender in the regular and systematic transaction of its business.”\nFlint, 837 S.W.2d at 528 (quoting Hills v. McComas Rentals, Inc., 779 S.W.2d 297,\n299 (Mo. Ct. App. 1989)). Speculation that American Family’s normal business\nprocedures were not followed in this case is not the same as affirmative evidence that\nVein Centers did not receive the documents. In short, St. Louis Heart has not\nprovided a sufficient evidentiary basis to rebut the presumption that Vein Centers\nreceived notice.\n\n Summary judgment in favor of American Family was proper because St. Louis\nHeart has not provided any evidence that adequate notice of the exclusion was not\nprovided to Vein Centers.\n\n -10-\n\f III. Conclusion\n\n We affirm both the district court’s finding of jurisdiction and its summary\njudgment order in favor of American Family.7\n ______________________________\n\n\n\n\n 7\n We grant American Family’s motion to supplement its Supplemental\nAppendix.\n\n -11-\n[END_CASE]", "role": "user" } ]
4,578,915	UNITED STATES of America, Plaintiff - Appellee v. Lynn Alisa ESPEJO, Defendant - Appellant	United States v. Lynn Espejo	2019-01-04	17-3562	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Colloton, Gruender, Grasz", "parties": "", "opinions": [{"author": "GRASZ, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3562\n ___________________________\n\n United States of America\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n v.\n\n Lynn Alisa Espejo\n\n lllllllllllllllllllllDefendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the Eastern District of Arkansas - Western Division\n ____________\n\n Submitted: September 28, 2018\n Filed: January 4, 2019\n ____________\n\nBefore COLLOTON, GRUENDER, and GRASZ, Circuit Judges.\n ____________\n\nGRASZ, Circuit Judge.\n\n Lynn Alisa Espejo appeals her conviction for various crimes related to stealing\nfunds from a medical practice while working as its bookkeeper, arguing that the\ndistrict court erred by excluding potentially exculpatory evidence regarding the\n\fmedical practice’s destruction of financial records. We conclude that the district\ncourt1 did not abuse its discretion in excluding the evidence.\n\n I. Background\n\n Espejo was the administrator for Practice Management Services Inc. (“PMSI”),\na medical practice. As the administrator, Espejo was effectively responsible for\nmanaging the office. When PMSI changed presidents from Dr. Bruce Sanderson to\nDr. Scott Brown in 2010, Brown discovered a debit card linked to PMSI’s account\nwhich, along with several other issues, caused him to further investigate PMSI’s\nfinances. PMSI placed Espejo on administrative leave, and she subsequently resigned\non October 1, 2010. The investigation ultimately revealed that Espejo had transferred\nsome of PMSI’s funds into her personal account.\n\n Many of PMSI’s financial records that were part of the investigation into\nEspejo’s use of funds are now missing. During the investigation into the funds in\n2010, Espejo’s attorney asked PMSI’s counsel to retain all financial documents for\nthe case. In February 2011, after You Shred-It visited PMSI for its periodic\nshredding of records, a PMSI employee discovered that all of the documents in\nstorage were gone, including the Espejo documents stored in a locked cabinet. PMSI\nalso failed to preserve Espejo’s computer. Fortunately, off-site bank and credit card\nrecords reproduced the relevant transactions, and every testifying doctor besides\nSanderson reproduced their settlement statements from PMSI for the relevant years.\nSanderson reproduced only his 2010 settlement statements.\n\n In 2014, a grand jury indicted Espejo on fifteen counts of wire fraud, seven\ncounts of money laundering, and four counts of filing false tax returns. Espejo moved\n\n\n 1\n The Honorable Kristine G. Baker, United States District Judge for the Eastern\nDistrict of Arkansas.\n\n -2-\n\fto dismiss the indictment for, among other reasons, intentional destruction of\nevidence. The district court denied the motion to dismiss the indictment but, on the\nGovernment’s motion, dismissed one of the counts of money laundering.\n\n In pretrial motions, the Government moved to exclude evidence and argument\nrelated to PMSI’s destruction of financial documents. At trial, the district court\nexcluded evidence related to the destruction of the records under Fed. R. Evid. 401,\n402, and 403. The district court explained that it did not understand why the missing\ndocuments would be needed for a defense given the availability of credit card\nstatements to show what Espejo purchased with the funds at issue. It also explained\nthat there was no evidence the Government destroyed the documents. It further\nprohibited defense counsel from asking Sanderson about intentional destruction of\nhis settlement statements, pending review of further evidence in the case.\n\n Espejo wanted the missing records to support her defense that Sanderson\nrouted personal funds through PMSI’s account in order to hide money from his wife.\nShe conceded that she transferred $611,099.04 from PMSI and a related entity to her\npersonal bank account and that she maintained separate Quickbooks files to hide the\ntransactions. She testified that Sanderson authorized these practices, asking her to\npurchase items for him and reimburse herself from PMSI’s account, and occasionally\nallowing her to purchase gifts for her children with funds reimbursed from PMSI’s\naccount. She also conceded that she made a few personal purchases using the PMSI\ndebit card, but she stated that those purchases involved mistaken use of the wrong\ncard and that she reimbursed any such mistakes.\n\n Sanderson admitted he had routed personal transactions through PMSI’s\naccount, using checks directly from the account for purchases. He denied ever\nauthorizing Espejo to use her personal account for purchases on his behalf.\n\n\n\n\n -3-\n\f Some of the evidence indicated that Espejo transferred more funds to her\naccount than Sanderson deposited in PMSI’s account. Sanderson’s 2010 statements\nshowed that he deposited $4,612.07 beyond what he owed PMSI between January 1\nand September 9, 2010. Espejo took $210,425.41 in funds from PMSI’s account\nduring the same time period. Her defense was that Sanderson had deposited extra\nfunds in the account that had continually built up over time.\n\n Despite the missing records, the evidence at trial indicated that PMSI’s account\ncontained some extra funds with an unknown source. At the end of 2009, the account\nbalance was $99,259.27. There were six doctors in the practice at that time, each of\nwhom contributed about $5,000-6,000 when they joined. Sanderson also testified that\na previous member of the practice, Dr. Columbus Brown, was in arrears by “a big\namount” to PMSI, indicating that the doctors’ collective contributions alone could not\naccount for the surplus in the account. The Government introduced evidence of other\nsources of income: a $14,000 check from Memphis Pathology Lab that was not\ncredited to any doctor, and a $41,062.48 refund from McKesson Specialty Care\nDistribution that was not credited to any doctor. There was additional testimony\nabout Espejo possibly depositing the doctors’ tax refunds into PMSI’s account\nwithout crediting them.\n\n After hearing most of this evidence, the district court excluded all evidence\nregarding intentional destruction of the settlement statements, including questions on\nthe topic directed to Sanderson. The district court explained that it had heard no\nevidence of what particular documents were destroyed and no evidence of any\nparticular person destroying documents. It observed that the destruction also\noccurred several months after Espejo resigned from PMSI, which suggested that the\ndestruction was not an intentional act. It also explained that it did not want to allow\nspeculation on the issue without more particular evidence. After reviewing the\nrelevant testimony from the motion to dismiss hearings, the district court concluded\nthe evidence of destruction was too speculative because the key witness could only\n\n -4-\n\ftestify that documents went missing over a weekend, without confirming what\ndocuments they were or even confirming that it was the shredding company that took\nthem.\n\n At the end of the trial, the jury convicted Espejo on all counts at issue. The\ndistrict court sentenced Espejo, and she timely appealed.\n\n II. Standard of Review\n\n “We review evidentiary rulings for an abuse of discretion, but our review is de\nnovo when the challenge implicates a constitutional right.” United States v. West,\n829 F.3d 1013, 1017 (8th Cir. 2016). “Even where an evidentiary ruling is an abuse\nof discretion or violates a constitutional proscription, however, we will not reverse\nunless the error is more than harmless in that it affected a substantial right or had\nmore than a slight influence on the verdict.” Id.\n\n III. Analysis\n\n The district court did not err in excluding evidence regarding the destroyed\nmedical records. “We have recognized the right of a criminal defendant to present\na complete defense, grounded in either the Sixth or Fourteenth Amendments, with the\ncaveat that it may be limited by other legitimate interests of criminal trials, such as\nexcluding incompetent, irrelevant, or privileged testimony.” Id. The right is also\nlimited by Fed. R. Evid. 403. See id. at 1019.\n\n The limited probative value of the missing documents is apparent because\nEspejo would have to prove the existence of deposits that were not in the available\nbank account records in order to show probative value. Sanderson’s deposits only\nappear to exceed his bills by a few thousand dollars, and Espejo took $611,099.04 in\nreimbursements. The only evidence in the record of other sources of funds is the\n\n -5-\n\fGovernment’s evidence that Espejo was depositing vendor refunds and tax refunds\nwithout crediting them to the doctors.\n\n Even if the missing documents were relevant, the limited probative value of the\ndestruction of those documents is also apparent because Espejo did not offer a clear\nmotive for anyone at PMSI to destroy those documents. Espejo had no evidence\nestablishing Sanderson’s motive beyond her own testimony, and Sanderson openly\nadmitted to using the account directly for personal purchases. There is also no\nevidence that any other doctor would have wanted those records destroyed. In fact,\nit appears that the new president of PMSI would have an interest in maintaining the\nrecords and investigating Sanderson’s practices of routing personal purchases through\nPMSI. In the absence of any significant evidence linking an individual to the\ndestruction of the records, the district court did not abuse its discretion in disallowing\nany evidence on the issue.\n\n IV. Conclusion\n\n The district court did not abuse its discretion in excluding evidence regarding\nthe destruction of documents. We affirm.\n ______________________________\n\n\n\n\n -6-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4356168/", "author_raw": "GRASZ, Circuit Judge."}]}	COLLOTON	GRUENDER	GRASZ	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4578915/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff - Appellee v. Lynn Alisa ESPEJO, Defendant - Appellant\nCourt: U.S. Court of Appeals for the Eighth Circuit\nDate decided: 2019-01-04\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3562\n ___________________________\n\n United States of America\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n v.\n\n Lynn Alisa Espejo\n\n lllllllllllllllllllllDefendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the Eastern District of Arkansas - Western Division\n ____________\n\n Submitted: September 28, 2018\n Filed: January 4, 2019\n ____________\n\nBefore COLLOTON, GRUENDER, and GRASZ, Circuit Judges.\n ____________\n\nGRASZ, Circuit Judge.\n\n Lynn Alisa Espejo appeals her conviction for various crimes related to stealing\nfunds from a medical practice while working as its bookkeeper, arguing that the\ndistrict court erred by excluding potentially exculpatory evidence regarding the\n\fmedical practice’s destruction of financial records. We conclude that the district\ncourt1 did not abuse its discretion in excluding the evidence.\n\n I. Background\n\n Espejo was the administrator for Practice Management Services Inc. (“PMSI”),\na medical practice. As the administrator, Espejo was effectively responsible for\nmanaging the office. When PMSI changed presidents from Dr. Bruce Sanderson to\nDr. Scott Brown in 2010, Brown discovered a debit card linked to PMSI’s account\nwhich, along with several other issues, caused him to further investigate PMSI’s\nfinances. PMSI placed Espejo on administrative leave, and she subsequently resigned\non October 1, 2010. The investigation ultimately revealed that Espejo had transferred\nsome of PMSI’s funds into her personal account.\n\n Many of PMSI’s financial records that were part of the investigation into\nEspejo’s use of funds are now missing. During the investigation into the funds in\n2010, Espejo’s attorney asked PMSI’s counsel to retain all financial documents for\nthe case. In February 2011, after You Shred-It visited PMSI for its periodic\nshredding of records, a PMSI employee discovered that all of the documents in\nstorage were gone, including the Espejo documents stored in a locked cabinet. PMSI\nalso failed to preserve Espejo’s computer. Fortunately, off-site bank and credit card\nrecords reproduced the relevant transactions, and every testifying doctor besides\nSanderson reproduced their settlement statements from PMSI for the relevant years.\nSanderson reproduced only his 2010 settlement statements.\n\n In 2014, a grand jury indicted Espejo on fifteen counts of wire fraud, seven\ncounts of money laundering, and four counts of filing false tax returns. Espejo moved\n\n\n 1\n The Honorable Kristine G. Baker, United States District Judge for the Eastern\nDistrict of Arkansas.\n\n -2-\n\fto dismiss the indictment for, among other reasons, intentional destruction of\nevidence. The district court denied the motion to dismiss the indictment but, on the\nGovernment’s motion, dismissed one of the counts of money laundering.\n\n In pretrial motions, the Government moved to exclude evidence and argument\nrelated to PMSI’s destruction of financial documents. At trial, the district court\nexcluded evidence related to the destruction of the records under Fed. R. Evid. 401,\n402, and 403. The district court explained that it did not understand why the missing\ndocuments would be needed for a defense given the availability of credit card\nstatements to show what Espejo purchased with the funds at issue. It also explained\nthat there was no evidence the Government destroyed the documents. It further\nprohibited defense counsel from asking Sanderson about intentional destruction of\nhis settlement statements, pending review of further evidence in the case.\n\n Espejo wanted the missing records to support her defense that Sanderson\nrouted personal funds through PMSI’s account in order to hide money from his wife.\nShe conceded that she transferred $611,099.04 from PMSI and a related entity to her\npersonal bank account and that she maintained separate Quickbooks files to hide the\ntransactions. She testified that Sanderson authorized these practices, asking her to\npurchase items for him and reimburse herself from PMSI’s account, and occasionally\nallowing her to purchase gifts for her children with funds reimbursed from PMSI’s\naccount. She also conceded that she made a few personal purchases using the PMSI\ndebit card, but she stated that those purchases involved mistaken use of the wrong\ncard and that she reimbursed any such mistakes.\n\n Sanderson admitted he had routed personal transactions through PMSI’s\naccount, using checks directly from the account for purchases. He denied ever\nauthorizing Espejo to use her personal account for purchases on his behalf.\n\n\n\n\n -3-\n\f Some of the evidence indicated that Espejo transferred more funds to her\naccount than Sanderson deposited in PMSI’s account. Sanderson’s 2010 statements\nshowed that he deposited $4,612.07 beyond what he owed PMSI between January 1\nand September 9, 2010. Espejo took $210,425.41 in funds from PMSI’s account\nduring the same time period. Her defense was that Sanderson had deposited extra\nfunds in the account that had continually built up over time.\n\n Despite the missing records, the evidence at trial indicated that PMSI’s account\ncontained some extra funds with an unknown source. At the end of 2009, the account\nbalance was $99,259.27. There were six doctors in the practice at that time, each of\nwhom contributed about $5,000-6,000 when they joined. Sanderson also testified that\na previous member of the practice, Dr. Columbus Brown, was in arrears by “a big\namount” to PMSI, indicating that the doctors’ collective contributions alone could not\naccount for the surplus in the account. The Government introduced evidence of other\nsources of income: a $14,000 check from Memphis Pathology Lab that was not\ncredited to any doctor, and a $41,062.48 refund from McKesson Specialty Care\nDistribution that was not credited to any doctor. There was additional testimony\nabout Espejo possibly depositing the doctors’ tax refunds into PMSI’s account\nwithout crediting them.\n\n After hearing most of this evidence, the district court excluded all evidence\nregarding intentional destruction of the settlement statements, including questions on\nthe topic directed to Sanderson. The district court explained that it had heard no\nevidence of what particular documents were destroyed and no evidence of any\nparticular person destroying documents. It observed that the destruction also\noccurred several months after Espejo resigned from PMSI, which suggested that the\ndestruction was not an intentional act. It also explained that it did not want to allow\nspeculation on the issue without more particular evidence. After reviewing the\nrelevant testimony from the motion to dismiss hearings, the district court concluded\nthe evidence of destruction was too speculative because the key witness could only\n\n -4-\n\ftestify that documents went missing over a weekend, without confirming what\ndocuments they were or even confirming that it was the shredding company that took\nthem.\n\n At the end of the trial, the jury convicted Espejo on all counts at issue. The\ndistrict court sentenced Espejo, and she timely appealed.\n\n II. Standard of Review\n\n “We review evidentiary rulings for an abuse of discretion, but our review is de\nnovo when the challenge implicates a constitutional right.” United States v. West,\n829 F.3d 1013, 1017 (8th Cir. 2016). “Even where an evidentiary ruling is an abuse\nof discretion or violates a constitutional proscription, however, we will not reverse\nunless the error is more than harmless in that it affected a substantial right or had\nmore than a slight influence on the verdict.” Id.\n\n III. Analysis\n\n The district court did not err in excluding evidence regarding the destroyed\nmedical records. “We have recognized the right of a criminal defendant to present\na complete defense, grounded in either the Sixth or Fourteenth Amendments, with the\ncaveat that it may be limited by other legitimate interests of criminal trials, such as\nexcluding incompetent, irrelevant, or privileged testimony.” Id. The right is also\nlimited by Fed. R. Evid. 403. See id. at 1019.\n\n The limited probative value of the missing documents is apparent because\nEspejo would have to prove the existence of deposits that were not in the available\nbank account records in order to show probative value. Sanderson’s deposits only\nappear to exceed his bills by a few thousand dollars, and Espejo took $611,099.04 in\nreimbursements. The only evidence in the record of other sources of funds is the\n\n -5-\n\fGovernment’s evidence that Espejo was depositing vendor refunds and tax refunds\nwithout crediting them to the doctors.\n\n Even if the missing documents were relevant, the limited probative value of the\ndestruction of those documents is also apparent because Espejo did not offer a clear\nmotive for anyone at PMSI to destroy those documents. Espejo had no evidence\nestablishing Sanderson’s motive beyond her own testimony, and Sanderson openly\nadmitted to using the account directly for personal purchases. There is also no\nevidence that any other doctor would have wanted those records destroyed. In fact,\nit appears that the new president of PMSI would have an interest in maintaining the\nrecords and investigating Sanderson’s practices of routing personal purchases through\nPMSI. In the absence of any significant evidence linking an individual to the\ndestruction of the records, the district court did not abuse its discretion in disallowing\nany evidence on the issue.\n\n IV. Conclusion\n\n The district court did not abuse its discretion in excluding evidence regarding\nthe destruction of documents. We affirm.\n ______________________________\n\n\n\n\n -6-\n[END_CASE]", "role": "user" } ]
4,578,916	Thompson L. AWNINGS, Formerly Known as Tristan Simon, Plaintiff-Appellant v. Joshua FULLERTON; Ryan Duncan, Defendants-Appellees Jeremy Carther; Todd Roberts, Defendants Tarvis Banks; 1-10 Does, Defendants-Appellees	Thompson Awnings v. Joshua Fullerton	2019-01-04	17-2884	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Smith, Beam, Colloton", "parties": "", "opinions": [{"author": "SMITH, Chief Judge", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-2884\n ___________________________\n\n Thompson L. Awnings, formerly known as Tristan Simon\n\n lllllllllllllllllllllPlaintiff - Appellant\n\n v.\n\n Joshua Fullerton; Ryan Duncan\n\n lllllllllllllllllllllDefendants - Appellees\n\n Jeremy Carther; Todd Roberts\n\n lllllllllllllllllllllDefendants\n\n Tarvis Banks; 1-10 Does\n\n lllllllllllllllllllllDefendants - Appellees\n ____________\n\n Appeal from United States District Court\n for the District of Nebraska - Lincoln\n ____________\n\n Submitted: May 16, 2018\n Filed: January 4, 2019\n ____________\n\nBefore SMITH, Chief Judge, BEAM and COLLOTON, Circuit Judges.\n ____________\n\nSMITH, Chief Judge.\n\n Thompson Awnings sued, among others, Officers Joshua Fullerton, Ryan\nDuncan, and Tarvis Banks of the Lincoln Police Department (LPD) under 42 U.S.C.\n§ 1983 in their individual capacities. Awnings’s suit alleged multiple constitutional\nviolations by the officers, including false arrest, excessive force, and denial of\nmedical care. He claims the district court1 erred by: (1) refusing to disqualify the\nentire City of Lincoln Attorney’s Office; (2) granting qualified immunity to Officers\nFullerton and Duncan; and (3) dismissing Officer Banks from Awnings’s suit\npursuant to Federal Rule of Procedure 12(b)(6). We affirm.\n\n I. Background\n A. Awnings’s Arrest2\n On an early morning in July 2013, Officers Fullerton and Duncan of the LPD\nencountered Damien Wilkins on a sidewalk in Lincoln. The officers questioned\nWilkins about his possible involvement with criminal activity. Awnings, Wilkins’s\ncompanion, inserted himself into the conversation and began asking the officers why\nthey were questioning Wilkins. Officer Fullerton informed Awnings that the officers\nwere conducting law enforcement business with Wilkins. Officer Fullerton then told\n\n\n 1\n The Honorable Richard G. Kopf, United States District Judge for the District\nof Nebraska.\n 2\n Although Awnings disputed the defendants’ version of the events, the district\ncourt found that most of the defendants’ statements of material facts did not\ncontrovert Awnings’s own recitation. See Mem. & Order at 7–23, Awnings v.\nFullerton, No. 4:15-cv-03078-RGK-CRZ (D. Neb. Apr. 24, 2017), ECF No. 133\n(“Qualified Immunity Order”). Upon review, we find that the parties’ versions of\nevents largely do not controvert each other, and we recite here only the undisputed\nfacts. See Morris v. City of Chillicothe, 512 F.3d 1013, 1018 (8th Cir. 2008) (standard\nof review) (citation omitted).\n\n -2-\n\nAwnings, who had been drinking, that he could wait for his friend a short distance\naway, if he wished.\n\n Unsatisfied, Awnings—now obviously angry and agitated—refused the\ndirection to step away. Awnings then, in an expletive-laced exclamation, declared that\n“[h]e would protect his buddy” and that he was “not going anywhere.” Qualified\nImmunity Order at 9. Awnings was several feet from Officer Fullerton, and the officer\ninstructed Awnings to step away from the officers. Awnings again refused, asking,\n“Why should I leave?” Id. at 9. Officer Fullerton answered that Awnings was\ninterfering with an investigation and that his behavior distracted them from their\nwork. Awnings uttered another expletive and told the officer, “I am staying right\nhere.” Id. Officer Fullerton—for the third time—asked Awnings to leave the\nimmediate area; Officer Fullerton reinforced his request by warning Awnings that if\nhe refused, he would go to jail. In response, Awnings again blurted out the same\nexpletive, followed by “I’ll kick your ass.” Id.\n\n At that point, Officer Fullerton informed Awnings that he was under arrest and\ncommanded Awnings to place his hands behind his back. Awnings refused, telling\nOfficer Fullerton, “I’m gonna kick your [expletive] ass.” Id. Officer Fullerton then\n“reached out and grabbed onto [Awning’s] arm and wrist, but then [Awnings]\nstiffened his arm and began to pull away. Officer Fullerton again told [Awnings] he\nwas under arrest and to stop resisting and [Awnings] continued to resist and pull\naway.” Id. at 10. The officer then executed a hip toss maneuver, which put Awnings\n“on his back on the ground with Officer Fullerton on top of him.” Id. The two men\nbegan to fight. Officer Jon-Eric Meyer, who had arrived at the scene, joined with\nOfficer Duncan and came to Officer Fullerton’s assistance. As the officers attempted\nto handcuff Awnings, he resisted, “actively kicking and punching at the officers.” Id.\nAwnings then\n hook[ed] his hand under Officer Duncan’s LPD uniform shirt and\n [brought] his hand up to the collar, grabbing onto the body armor and\n\n -3-\n\n undershirt as well as his collar. [Awnings] used this hold . . . to try to\n pull Officer Duncan to the ground with force, causing the collar to cinch\n around Officer Duncan’s neck.\n\nId. Meanwhile, “Officer Duncan gave numerous commands for [Awnings] to let go”\nand to put his hands behind his back. Id. Awnings ignored the directive and continued\nto tighten his grip on Officer Duncan’s shirt collar, and the officer “tried to strike\n[Awnings] a couple of times” to induce Awnings to release his grasp. Id. at 11.\nAwnings pinned Officer Duncan to the ground.\n\n Officer Duncan yelled to his colleagues for help. Awnings eventually released\nOfficer Duncan’s shirt, and the officers then rolled Awnings onto his stomach and\nhandcuffed him. Awnings refused to walk to the police cruiser. Officer Jeremy\nCarther from the University of Nebraska–Lincoln Police Department arrived and\nassisted the LPD officers in placing Awnings on his back in the backseat of the\ncruiser. Awnings continued to resist and yell profanities. Awnings kicked Officer\nCarther in the chest twice. At that point, Officers Fullerton, Meyer, and Carther\nremoved Awnings from the cruiser and called for a vehicle with a “full backseat\ncage.” Id. at 11. Awnings continued to resist the officers, and when a police vehicle\nequipped with the full cage arrived, Officer Chris Howard placed Awnings in leg\nrestraints. The officers then placed Awnings into the police cruiser. Officer Duncan\nsustained minor injuries from the scuffle.\n\n\n\n\n -4-\n\n B. Awnings’s Transport to the Detention Center3\n Awnings sustained visible injuries during his arrest. Because he was bleeding,\nthe LPD officers called for an ambulance to transport Awnings to the Bryan West\nMedical Center (“the Hospital”). Officer Howard accompanied Awnings in the\nambulance. At the Hospital, Awnings told the examining physician that he believed\nhe had one or more fractured ribs. The doctor ordered a chest X-ray, which revealed\nno rib fracture. The doctor pronounced Awnings fit for incarceration, but he ordered\na follow-up examination at the Hospital within one to two days. Officer Banks, who\nhad relieved Officer Howard during Awnings’s examination at the Hospital, then\ntransported Awnings to the Lancaster County Jail. Officer Banks neglected to inform\njail personnel of the doctor’s request for a follow-up appointment with Awnings; he\n“simply informed jail personnel that [Awnings] had been to the emergency room and\nhad been deemed fit for confinement.” Mem. & Order at 3, Awnings v. Fullerton, No.\n4:15-cv-03078-RGK-CRZ (D. Neb. Jan. 20, 2016), ECF No. 40.\n\n C. District Court and Other Proceedings\n Awnings’s scuffle with the LPD led to several, subsequent state criminal\ncharges.4 Awnings pleaded no contest to two of the charges, and the District Court\nof Lancaster County, Nebraska, sentenced him to two consecutive 90-day jail terms.\nThe Nebraska Court of Appeals upheld Awnings’s convictions.\n\n\n\n\n 3\n We recite these facts as alleged in Awnings’s complaint and assume them to\nbe true. See Zink v. Lombardi, 783 F.3d 1089, 1098 (8th Cir. 2015) (en banc) (per\ncuriam) (“We review a district court’s grant of a motion to dismiss . . . de novo. We\nassume all facts in the complaint to be true, and draw all reasonable inferences in\nfavor of the non-moving party.” (citations omitted)).\n 4\n These charges included assault on an officer in the third degree, in violation\nof Neb. Rev. Stat. § 28-931, assault in the third degree, in violation of Neb. Rev. Stat.\n§ 28-310(1), and resisting arrest, in violation of Neb. Rev. Stat. § 28-904(1).\n\n -5-\n\n After his state convictions, Awnings filed a lawsuit in federal court pursuant\nto 42 U.S.C. § 1983, alleging, among other things, that Officer Fullerton arrested\nAwnings without probable cause and that Officers Fullerton and Duncan used\nexcessive force in effecting his arrest. Awnings also alleged that Officer\nBanks—because of his failure to inform jail personnel of the Hospital doctor’s\nrequest for a follow-up examination—deprived him of his right to be free from\nunreasonable seizures under the Fourth Amendment. Awnings also claimed that\nOfficer Banks’s conduct amounted to a denial of medical care, violating his due\nprocess rights under the Fourteenth Amendment.\n\n Elizabeth Elliott, an attorney employed by the City of Lincoln Attorney’s\nOffice (CLAO), initially represented the LPD officers. In that capacity, she filed a\nnotice of intent to serve subpoena duces tecum with the district court. Elliott\npreviously had worked in the Lancaster County Public Defender’s Office (LPDO).\nIn fact, Elliott worked as an attorney in that office while the LPDO defended\nAwnings’s state criminal charges. Awnings objected to the notice, and Elliott moved\nto withdraw from the case upon discovering the potential conflict. Awnings then\nmoved to disqualify the entire CLAO, claiming Elliott’s employment at the LPDO\nwhile that office represented Awnings created a conflict of interest that could\nprejudice his civil suit against the officers.\n\n The magistrate judge considered Awnings’s motion and found that while\nemployed with the LPDO, Elliott “did not represent [Awnings], never appeared with\n[Awnings] in court, and never spoke to him about his case. She [did] not recall\n[Awnings] or the underlying facts of his state criminal case. She was never ‘actively\ninvolved’ in [Awnings’s] underlying state criminal case.” Mem. & Order at 3,\nAwnings v. Fullerton, No. 4:15-cv-03078-RGK-CRZ (D. Neb. Oct. 14, 2015), ECF\nNo. 26 (citation omitted). And Awnings pleaded no contest to the criminal charges\nafter Elliott left the LPDO. The CLAO assured the court that “Elliott has no\nconfidential information regarding [Awnings] and as such, has not divulged any\n\n -6-\n\nconfidential information to [the CLAO] about [Awnings] or his criminal case.” Id. at\n4. Further, the CLAO had screened Elliott from any further work in Awnings’s case.\nFinding no imputed conflict of interest stemming from Elliott’s prior employment at\nthe LPDO, the magistrate judge denied Awnings’s motion to disqualify the entire\nCLAO. The district court affirmed the magistrate judge’s order.\n\n Officers Banks, Duncan, and Fullerton moved to dismiss Awnings’s § 1983\nsuit under Federal Rule of Civil Procedure Rule 12(b)(6). The district court partially\ngranted the motion and dismissed Officer Banks from the suit. Officers Duncan and\nFullerton subsequently filed a motion for summary judgment, which the district court\ngranted. The court concluded that the Heck5 doctrine barred Awnings from claiming\nfalse arrest. But even if Heck did not foreclose Awnings’s false arrest claim, the\ndistrict court determined that Officers Duncan and Fullerton had probable cause to\narrest Awnings. Further, the court concluded that the officers’ use of force was\n“objectively reasonable under the circumstances and did not violate [Awnings’s]\nconstitutional rights.” Qualified Immunity Order at 34. The district court then granted\nsummary judgment to the officers. The court held that the officers were entitled to\nqualified immunity and dismissed both the false arrest and the excessive force claims.\n\n II. Discussion\n In this appeal, Awnings claims the district court erred by: (1) failing to\ndisqualify the entire CLAO; (2) granting qualified immunity to Officers Duncan and\nFullerton; and (3) granting Officer Banks’s Rule 12(b)(6) motion. We disagree and\naffirm.\n\n A. Disqualification of the CLAO Attorneys\n Awnings argues that Elliott’s employment with the LPDO prior to joining the\nCLAO raises a conflict of interest. Furthermore, he contends that Elliott’s conflict\n\n\n 5\n Heck v. Humphrey, 512 U.S. 477 (1994).\n\n -7-\n\nshould be imputed to the entire CLAO and that the district court should have granted\nAwnings’s motion to disqualify. We review the district court’s denial of attorney\ndisqualification for abuse of discretion. See United States v. Kehoe, 310 F.3d 579,\n590 (8th Cir. 2002) (citing Fred Weber, Inc. v. Shell Oil Co., 566 F.2d 602, 605–06\n(8th Cir. 1977)). “Because of the potential for abuse by opposing counsel,\n‘disqualification motions should be subjected to particularly strict scrutiny.’”\nMacheca Transp. Co. v. Phila. Indem. Ins. Co., 463 F.3d 827, 833 (8th Cir. 2006)\n(quoting Harker v. Comm’r, 82 F.3d 806, 808 (8th Cir. 1996)). “[W]e apply the same\nrules governing the professional conduct of attorneys that the district court has\nadopted.” Harker, 82 F.3d at 808 (citing Blair v. Armontrout, 916 F.2d 1310, 1333\n(8th Cir. 1990)). The moving party bears the burden of proving that disqualification\nis required. See A.J. by L.B. v. Kierst, 56 F.3d 849, 859 (8th Cir. 1995) (citing Duncan\nv. Merrill, Lynch, Pierce, Fenner & Smith, Inc., 646 F.2d 1020, 1028 (5th Cir. 1981)).\n\n Under its general rules, the district court does not “adopt other codes of\nprofessional responsibility or ethics.” NEGenR 1.7(b)(2)(A). But, “the court may\nconsult other codes of professional responsibility or ethics to determine whether a\nlawyer has engaged in conduct unbecoming of a member of the bar.” NEGenR\n1.7(b)(2)(B); cf. Malone v. Kantner Ingredients, Inc., No. 4:12CV3190, 2013 WL\n5524548, at 7 (D. Neb. Oct. 3, 2013) (“When analyzing motions to disqualify, this\ncourt refers to the Nebraska Rules of Professional conduct.”). In this case, the\nmagistrate judge cited State v. Kinkennon, 747 N.W.2d 437 (Neb. 2008), as the basis\nfor denying Awnings’s motion to disqualify the entire CLAO. The district court\nsubsequently affirmed the magistrate judge.\n\n In Kinkennon, a Nebraska court appointed an attorney from a private law firm\nto represent a defendant in a criminal case. Id. at 441. During the pendency of the\ncase, another attorney from the law firm began employment as a deputy county\nattorney. Id. The defendant then moved to disqualify the entire county attorney’s\noffice, asking the state court to appoint a special prosecutor. Id. The state court denied\n\n -8-\n\nthe defendant’s motion. The Nebraska Supreme Court, after rejecting a per se rule of\ndisqualification, affirmed the trial court and explained:\n\n We recognize that complete disqualification of a prosecutor’s office may\n be warranted in cases where the appearance of unfairness or impropriety\n is so great that the public trust and confidence in our judicial system\n simply could not be maintained otherwise. Such an extreme case might\n exist, even where the State has done all in its power to establish an\n effective screening procedure precluding the individual lawyer’s direct\n or indirect participation in the prosecution. But when the disqualified\n attorney is effectively screened from any participation in the prosecution\n of the defendant, the prosecutor’s office may, in general, proceed with\n the prosecution.\n\nId. at 444 (footnote omitted).\n\n Awnings says the district court erroneously relied on Kinkennon and contends\nthat our prior decision, State of Arkansas v. Dean Foods Products Co., 605 F.2d 380\n(8th Cir. 1979), overruled on other grounds, In re Multi-Piece Rim Products Liability\nLitigation, 612 F.2d 377 (8th Cir. 1980), compels reversal of the district court. He is\nwrong. As we explained,\n\n [i]n Dean Foods Products, this court affirmed a district court order\n disqualifying an Assistant Attorney General from taking part in an\n antitrust action against a defendant that was being represented by his\n former law firm. Moreover, the court disqualified those members of the\n Attorney General’s staff who had actively participated in the case under\n the supervision of the disqualified attorney. The court explicitly reserved\n judgment on whether the conflict should have resulted in the imputed\n disqualification of the entire Attorney General’s office.\n\nBlair, 916 F.2d at 1332 (emphasis added) (citations omitted). Thus, Dean Foods\nProducts does not command the disqualification of an entire attorney’s office even\n\n -9-\n\nwhen an attorney in that office possesses confidential information about the\ndefendant. Rather, it is satisfactory that the attorney and the staff supervised by the\nattorney be disqualified and appropriately screened.\n\n We find no conflict between Kinkennon and Dean Foods Products, and neither\ndecision supports disqualifying the entire CLAO in Awnings’s civil case. When the\npotential for a conflict became known, Elliott moved to recuse herself from the case\nout of caution. She did not represent Awnings in his state criminal proceedings, did\nnot recall Awnings or his criminal case, and was never actively involved in the\ncriminal proceedings. Awnings pleaded no contest to the criminal charges after Elliott\ndeparted the LPDO. Aside from filing the notice of intent to serve a subpoena duces\ntecum, the CLAO screened Elliott from further participation in Awnings’s case.\nWhile Awnings suggested that Elliott might have imparted confidential information\nregarding his criminal case to the CLAO, see Appellant’s Br. at 16–17, “[g]eneral\nassertions that an attorney possesses knowledge of a party’s ‘trade secrets, trial\nstrategies, negotiation strategies, legal theories or business practices’ are not typically\nsufficient and can be overcome by an attorney affidavit stating the attorney has no\nknowledge of such items.” Infogroup, Inc. v. DatabaseLLC, No. 8:14CV49, 2016 WL\n2350113, at 2 (D. Neb. May 4, 2016) (citing Jacob N. Printing Co. v. Mosley, 779\nN.W.2d 596, 602 (Neb. 2010)). Awnings only presented conjecture to support his\nassertion that Elliott possessed confidential information regarding his case. Elliott,\non the other hand, submitted an affidavit claiming no knowledge of the case from her\nprevious employment.\n\n Because Awnings failed in his burden to show the necessity of disqualifying\nof the entire CLAO, we find no abuse of discretion in the district court’s denial of\nAwnings’s motion to disqualify. See A.J. by L.B., 56 F.3d at 859 (citation omitted).\n\n\n\n\n -10-\n\n B. Qualified Immunity\n Next, Awnings claims the district court erred when it granted qualified\nimmunity to Officers Duncan and Fullerton because the district court erroneously:\n(1) excluded Awnings’s statements about his medical condition; (2) admitted\naffidavits from the LPD officers; and (3) ignored material fact disputes raised by\nAwnings. “We review the district court’s grant of summary judgment de novo, and\nmay affirm the district court on any basis supported by the record.” Figg v. Russell,\n433 F.3d 593, 597 (8th Cir. 2006) (citing Wilson v. Spain, 209 F.3d 713, 716 (8th Cir.\n2000); Gonzales-Perez v. Harper, 241 F.3d 633, 638 n.6 (8th Cir. 2001)). We review\nthe district court’s admission of evidence for summary judgment purposes under an\nabuse-of-discretion standard. Gannon Int’l., Ltd. v. Blocker, 684 F.3d 785, 793 (8th\nCir. 2012) (citing Warner Bros. Entm’t, Inc. v. X One X Prods., 644 F.3d 584, 591\n(8th Cir. 2011)). We address each of Awnings’s claims in turn.\n\n 1. Evidentiary Rulings\n Awnings claims that the district court erred in excluding statements he made\nabout his medical examination at the Hospital after his release from jail. He also\nasserts that the court erred in admitting affidavits from Officers Fullerton, Duncan,\nMeyer, Howard, and one other officer of the LPD and from Officer Carther from the\nUniversity of Nebraska–Lincoln Police Department.\n\n Awnings submitted a declaration stating that following his release from jail, he\nvisited a physician at the Hospital, who diagnosed him with four broken ribs and a\ncollapsed lung. The district court excluded Awnings’s medical condition statement\nbecause the “[examining] physician [was] not identified, the diagnoses [were]\nhearsay, and there [was] no medical evidence to establish a causal link to” Awning’s\nencounter with the LPD. Qualified Immunity Order at 22 n.22. Awnings says that at\nthe summary judgment stage, he need not present evidence in a trial-ready form. He\ncontends that he could have called the examining physician to testify at trial. Further,\nhe asserts that he was not required to disclose the physician’s name, especially when\n\n -11-\n\nthe doctor’s identity was readily discernible from the record. Lastly, Awnings, citing\nZiesmer v. Hagen, 785 F.3d 1233 (8th Cir. 2015), argues that because his injuries\nwere not sophisticated and within the range of common experience, he was not\nrequired to produce an expert witness to prove causation. We disagree.\n\n In Ziesmer, a police search of an individual turned into a physical altercation.\nId. at 1236. The trooper “tackled the [plaintiff, Ziesmer,] to the ground and dug his\nknee into [Ziesmer’s] back, while pulling Ziesmer’s hands behind his back, causing\nhis shoulder to pop out of its socket. Trooper Hagen popped Ziesmer’s shoulder back\ninto its socket.” Id. “Immediately after the incident Ziesmer reports that he had\nbruising and scrapes on his face and a large knot on the back of his head. He took\npictures of his bruised face when he got home.” Id. Ziesmer also sustained a welt on\nhis head. Id. We reversed the district court’s conclusion that Ziesmer needed to\nproduce a medical expert to opine on Ziesmer’s condition, reasoning:\n\n It is true that “[w]hen an injury is sophisticated, proof of causation\n generally must be established by expert testimony.” Robinson v. Hager,\n 292 F.3d 560, 564 (8th Cir. 2002). However, “[a] causal connection\n between an event and an injury may be inferred in cases in which a\n visible injury or a sudden onset of an injury occurs.” Id. (quoting Turner\n v. Iowa Fire Equip. Co., 229 F.3d 1202, 1210 (8th Cir. 2000)).\n\n Given that Ziesmer claims he began experiencing neck pain\n shortly after the alleged altercation with Trooper Hagen, and given that\n there is no evidence suggesting he experienced any such pain before [the\n incident with the trooper], a layperson could conclude that Ziesmer’s\n symptoms were caused by the trauma to his neck and back. See also Hill\n v. Gonzalez, 454 F.2d 1201, 1203 (8th Cir. 1972) (noting that “expert\n testimony is not necessary” to prove causation when the “inferences to\n be drawn from the facts are within the range of common experience” of\n the jury members (quotation omitted)); cf. Saunders v. Frost, 124 Fed.\n Appx. 468, 469 (8th Cir. 2005) (agreeing that the plaintiff’s knee injury\n was sophisticated, requiring an expert witness to prove causation,\n\n\n -12-\n\n because his knee “had a long medical history marked by earlier traumas\n and an earlier surgery”). Injuries such as those claimed by Ziesmer are\n “within the range of common experience,” and the lack of a medical\n expert on this issue is not fatal to his claim at this stage of the\n proceedings.\n\nId. at 1239 (first and second alterations in original).\n\n Here, Awnings’s alleged injuries—fractured ribs and a collapsed lung—were\ninternal and required sophisticated medical tools to diagnose accurately. As such,\nAwnings’s non-visible alleged injuries are not within the range of common\nexperience where inferences may be made with confidence. Further, Awnings’s visit\nto the Hospital immediately after his arrest showed no fractured ribs or a collapsed\nlung. In the absence of medical evidence, only Awnings’s own allegations remain.\nBut, “[a] plaintiff may not merely point to unsupported self-serving allegations, but\nmust substantiate allegations with sufficient probative evidence that would permit a\nfinding in the plaintiff’s favor.” Davidson & Assocs. v. Jung, 422 F.3d 630, 638 (8th\nCir. 2005) (citing Wilson v. Int’l Bus. Mach. Corp., 62 F.3d 237, 241 (8th Cir. 1995));\nsee also Bacon v. Hennepin Cty. Med. Ctr., 550 F.3d 711, 716 (8th Cir. 2008) (“[A]\nproperly supported motion for summary judgment is not defeated by self-serving\naffidavits.” (alteration in original) (quoting Gander Mountain Co. v. Cabela’s, Inc.,\n540 F.3d 827, 831 (8th Cir. 2008))). Thus, in contrast to Ziesmer, without probative\nmedical evidence, Awnings can establish neither severity of injury nor causation. This\nevidentiary void is fatal to Awnings’s claim. We find no abuse of discretion in the\ndistrict court’s conclusion that Awnings failed to present evidence of a causal link\nbetween his alleged injuries and his encounter with the law enforcement officers.\n\n Awnings also challenges the district court’s decision to admit affidavits from\nthe officers, contending that the affidavits should have been excluded because the\nofficers do not state that they had personal knowledge of “any of the facts [they]\nrecited, and “the affidavit[s] do[] not establish that [the officers] would be competent\n\n -13-\n\nto testify as to the objectionable portions.” Appellant’s Br. at 39. Awnings cites to no\nauthority that the affidavits must expressly state they came from personal knowledge,\nand we decline to endorse the kind of formalism that Awnings propounds. The district\ncourt found that the officers’ statements were based on personal knowledge and\noverruled Awnings’s objections. See Qualified Immunity Order at 4 n.1. In his\nobjections, Awnings presented no arguments or evidence why the officers would not\nbe competent to testify at a trial. We find no abuse of discretion and affirm the district\ncourt’s evidentiary rulings.\n\n 2. False Arrest\n Awnings contests the district court’s conclusion that the Heck doctrine barred\nhis false arrest claim. He also challenges the district court’s alternative ruling—that\neven if Heck does not bar Awnings’s claim, Officers Duncan and Fullerton had\nprobable cause to arrest Awnings. We need not address Awnings argument that the\ndistrict court misapplied Heck because the officers had probable cause to arrest him\nfor obstruction of a peace officer.\n\n Awnings argues that at the beginning of his encounter with Officers Fullerton\nand Duncan, he did not resist. The record, however, does not support Awnings’s\ncontention. According to Awnings, Officer Fullerton “yelled at him to shut up and\npointed to a direction behind him.” Qualified Immunity Order at 17. Awnings averred\nthat he could not hear Officer Fullerton and he “yelled back at [Officer] Fullerton.”\nId. at 18. Officer Fullerton then “grabbed [Awnings’s] right arm and started to yank\nit.” Id. “Awnings [then] recoiled and tried to get his arm loose.” Id. Awnings does not\ndispute that Officers Fullerton and Duncan were conducting law enforcement\nbusiness with his companion, that Officer Fullerton pointed Awnings away from the\nscene, or that he refused to comply. At that point, Officer Fullerton grabbed Awnings,\nand Awnings pulled away.\n\n\n\n\n -14-\n\n Under Nebraska law, Awnings’s admitted conduct qualified as obstruction of\na peace officer and resisting arrest. “A person commits the offense of obstructing a\npeace officer, when, by . . . physical interference, or obstacle, he . . . intentionally\nobstructs, impairs, or hinders . . . the enforcement of the penal law or the preservation\nof the peace by a peace officer . . . acting under color of his . . . official authority.”\nNeb. Rev. Stat. § 28-906(1)(a). Here, Awnings acknowledged that Officer Fullerton\nwas initially at least five feet from him, but Officer Fullerton moved closer during\ntheir encounter. Officer Fullerton had previously told Awnings “that it was none of\n[Awnings’s] business, and that if he wanted to wait for Wilkins he could do so at\nsome distance away.” Qualified Immunity Order at 16–17. Awnings refused to move\nback. Officer Fullerton subsequently gestured to Awnings to move away by waving.\nBut Awnings again refused to move and “yelled back at [Officer] Fullerton.” Id. at\n18. Awnings’s does not deny yelling, “[Expletive] you, I am staying right here” and\n“[Expletive] you, I’ll kick your ass.” Id. at 9. Awnings’s conduct constituted\nobstruction of a peace officer. See State v. Rosado, No. A-09-014, 2009 WL 3381652,\nat 2 (Neb. Ct. App. Oct. 20, 2009) (holding that pounding chest, saying “shoot me,\n[expletive],” and being in close proximity to peace officer attempting to arrest another\nindividual was obstructing a peace officer under Nebraska law); State v. Chapman,\nNo. A-92-451, 1993 WL 100146, at 5 (Neb. Ct. App. Apr. 6, 1993) (holding that\nunder the Nebraska obstruction statute, a defendant “could ‘threaten to use force or\nviolence’ with words, such as telling [the officer] he ‘was going to kick [his] ass’”\n(second alteration in original)); see also Ehlers v. City of Rapid City, 846 F.3d 1002,\n1009 (8th Cir. 2017) (concluding that “[r]efusing to comply with a police officer’s\norders can constitute obstruction” under a similar South Dakota statute (citation\nomitted)).\n\n Based on Awnings’s obstruction, Officer Fullerton had probable cause to\narrest. With probable cause, it was unnecessary for Officer Fullerton to issue a\n“verbal advisement of an attempted arrest”; rather, “actions to effectuate physical\ncontrol over [the defendant] [are sufficient to] constitute[] an attempt to arrest.” State\n\n -15-\n\nv. Heath, 838 N.W.2d 4, 17 (Neb. Ct. App. 2013) (first alteration in original) (citation\nomitted). By grabbing Awnings’s arm, Officer Fullerton attempted to effectuate\nphysical control over Awnings. Awnings resisted by pulling away. Awnings’s\nensuing fight with the officers is undisputed.\n\n 3. Excessive Force\n Awnings also faults the district court for granting qualified immunity to\nOfficers Fullerton and Duncan on his excessive force claim. He argues genuine\ndisputes of material facts preclude the court’s grant of qualified immunity.\n\n “To determine whether a particular use of force was excessive, the court\nconsiders whether it was objectively reasonable under the circumstances, relying on\nthe perspective of a reasonable officer present at the scene, rather than the 20/20\nvision of hindsight.” Ehlers, 846 F.3d at 1011 (cleaned up). “Force is excessive when\nan officer’s actions are not objectively reasonable in light of the facts and\ncircumstances confronting him.” Kukla v. Hulm, 310 F.3d 1046, 1050 (8th Cir. 2002)\n(citing Guite v. Wright, 147 F.3d 747, 750 (8th Cir. 1998)). “When an arrestee flees\nor resists, some use of force by the police is reasonable.” Greiner v. City of Champlin,\n27 F.3d 1346, 1355 (8th Cir. 1994) (citing Foster v. Metro. Airports Comm’n, 914\nF.2d 1076, 1082 (8th Cir. 1990)). “[E]vidence of only de minimis injury [does not]\nforeclose[] a claim of excessive force under the Fourth Amendment.” Chambers v.\nPennycook, 641 F.3d 898, 906 (8th Cir. 2011). “[I]t is logically possible to prove an\nexcessive use of force that caused only a minor injury . . . . ” Id. We “focus instead\non whether the force applied is reasonable from the perspective of a reasonable\nofficer on the scene at the time the force is used.” Id. (citing Graham v. Connor, 490\nU.S. 386, 396 (1989)).\n\n We agree with the district court that Awnings showed no genuine disputes of\nmaterial fact between his version of events and the officers’ version. Here, the record\nshows that Officer Fullerton executed a takedown maneuver after Awnings resisted\n\n -16-\n\narrest for obstruction under Nebraska law. Awnings alleged that officers joined in\nbeating him, but Officers Fullerton and Duncan’s evidence—uncontroverted by\nAwnings—showed an uncooperative and bellicose Awnings who resisted arrest by\nswinging and kicking at the officers.6 Also of note, Awnings contends that at least\nfour officers physically attacked him. But, according to the proof of record, Awnings\nsustained only a de minimis injury—a small laceration over his right eyebrow. See\nEllison v. Lesher, 796 F.3d 910, 917 (8th Cir. 2015) (“Our cases characterize\nrelatively minor scrapes, bruises, and contusions as de minimis.” (citing Ziesmer, 785\nF.3d at 1236–37; Wertish v. Krueger, 433 F.3d 1062, 1066–67 (8th Cir. 2006))).\nOfficer Duncan also suffered non-serious injuries during his attempt to subdue\nAwnings.\n\n Here, other than generic assertions, Awnings’s statements “do not give the\nslightest hint about the amount of force the officer[s] used or why the amount of force\nwas unreasonable in light of [his] persistent efforts to [resist] the police.” Edwards\nv. Giles, 51 F.3d 155, 157 (8th Cir. 1995) (citation omitted) (concluding that\nassertions such as the officers “threw [plaintiff] to the ground” or plaintiff “was\nthrown to the ground forcibly” are “abstract assertions [that] tell us nothing more than\nthat one officer used some physical power to move [the plaintiff to the ground”).\nReviewing the facts in the light most favorable to Awnings, he has failed to show that\nOfficers Fullerton and Duncan used unreasonable force to arrest him. See Ehlers, 846\nF.3d at 1010–11. Officers Fullerton and Duncan are entitled to qualified immunity.\n\n\n\n\n 6\n Awnings stated that he pulled his arm back when Officer Fullerton first\ngrabbed his arm; that after Officer Fullerton’s takedown, Awnings tried to get Officer\nFullerton off and to get away from the officer; that he tried to curl his body into a ball\n(thereby making it difficult for the officers to handcuff Awnings); and that he jumped\nout of the police vehicle after having been placed in the back seat. See Qualified\nImmunity Order at 18–20.\n\n -17-\n\n C. Motion to Dismiss\n Awnings contends that the district court erred in dismissing Officer Banks from\nthe suit. Awnings argues that he adequately stated a claim for deliberate indifference\nto his serious medical needs. Awnings’s allegation stemmed from Officer Banks’s\nfailure to inform the jail staff of Awnings’s need for a follow-up visit with the\nHospital. We review de novo the district court’s grant of a motion to dismiss under\nFederal Rule of Civil Procedure 12(b)(6). Wong v. Minn. Dep’t of Human Servs., 820\nF.3d 922, 927 (8th Cir. 2016) (citation omitted). We assume the truth of Awnings’s\nfactual allegations, and “we construe the complaint in the light most favorable to the\nnonmoving party.” Id. (quoting Ritchie v. St. Louis Jewish Light, 630 F.3d 713,\n715–16 (8th Cir. 2011)).\n\n The parties do not dispute that Officer Banks neglected to inform jail personnel\nof Awnings’s need for a follow-up medical appointment. Awnings argues that his\ntransport from the Hospital to the jail was part of his arrest; therefore his claim\nagainst Officer Banks necessarily implicates the Fourth Amendment. But, historically,\nin this circuit, claims of deliberate indifference to an arrestee’s medical needs are\n“properly analyzed under the Due Process Clause of the Fourteenth Amendment.”\nCarpenter v. Gage, 686 F.3d 644, 650 (8th Cir. 2012) (citations omitted). Unresolved\nis “the question whether the Fourth Amendment continues to provide individuals with\nprotection against the deliberate use of excessive physical force beyond the point at\nwhich arrest ends and pretrial detention begins.” Graham, 490 U.S. at 395 n.10\n(emphasis added); see also Chambers, 641 F.3d at 905 (“We have noted the existence\nof a ‘legal twilight zone’ between arrest and sentencing, where it is unclear whether\nexcessive force claims are governed by the Fourth Amendment or cases decided based\non the Fourteenth Amendment and substantive due process.” (emphasis added)\n(quoting Wilson v. Spain, 209 F.3d 713, 715 (8th Cir. 2000))). Awnings’s claim\nagainst Officer Banks is a failure to provide adequate medical services—not an\nexcessive force claim related to his arrest. Instead, Awnings claim against Officer\nBanks relates to the sufficiency of his post-arrest, post-medical examination, medical\n\n -18-\n\ncare. It is true that we have not as yet “resolved whether an arrestee’s claim alleging\ndenial of medical care is analyzed under the Due Process Clause or the Fourth\nAmendment. Bailey v. Feltmann, 810 F.3d 589, 593 (8th Cir. 2016). We need not do\nso here. The facts distinguish this case from those arising from an allegation of\nexcessive force. Factually, any alleged denial of medical care incident to Awnings’s\narrest ended when he actually received medical attention at the hospital. Awnings’s\nclaim against Officer Banks relates to Officer Banks’s omission to convey the follow-\nup medical appointment ordered by the doctor—not from his participation in\nAwnings’s arrest. In fact, Officer Banks did not participate in the arrest of Awnings.\nUnlike the plaintiff in Carpenter, Awnings was first transported for medical treatment\nbefore being taken to jail. On this record, our precedents favor analyzing Awnings’s\nmedical needs claim under Fourteenth Amendment standards.\n\n Under the Fourteenth Amendment, “‘[d]eliberate indifference’ entails a level\nof culpability equal to the criminal law definition of recklessness, that is, a prison\nofficial ‘must both be aware of facts from which the inference could be drawn that a\nsubstantial risk of serious harm exists, and he must also draw the inference.’” Bender\nv. Regier, 385 F.3d 1133, 1137 (8th Cir. 2004) (quoting Farmer v. Brennan, 511 U.S.\n825, 837 (1994)). “The standard for evaluating a substantive due process claim is\nwhether the alleged ‘behavior of the governmental officer is so egregious, so\noutrageous, that it may fairly be said to shock the contemporary conscience.’”\nSchmidt v. City of Bella Villa, 557 F.3d 564, 574 (8th Cir. 2009) (quoting Rogers v.\nCity of Little Rock, 152 F.3d 790, 797 (8th Cir. 1998)). Here, Awnings sustained a\nsmall laceration, and his examining physician post-arrest declared Awnings fit for\nincarceration. Further, a chest X-ray showed no fractured ribs or lung damages. Under\nthese circumstances, it cannot be said that Officer Banks’s failure to inform the jail\nstaff of Awnings’s follow-up medical visit rises to the level of conduct that “shocks\nthe contemporary conscience.” Id. The district court correctly dismissed Awnings’s\nclaim against Officer Banks under Rule 12(b)(6).\n\n\n\n -19-\n\n III. Conclusion\n 7\n We affirm.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4356169/", "author_raw": "SMITH, Chief Judge"}, {"author": "COLLOTON, Circuit Judge, concurring", "type": "concurrence", "text": "COLLOTON, Circuit Judge, concurring in part and concurring in the judgment.\n\n I join all but Part II.C of the opinion of the court. As to Awnings’s claim\nagainst Officer Banks, I disagree with the court’s decision to declare that the claim\nis governed by the Due Process Clause. Whether the Fourth Amendment or the Due\nProcess Clause governs the actions of Officer Banks during the period after Awnings\nwas arrested but before a judicial officer determined probable cause to detain him is\nimportant doctrinally. The issue was not thoroughly briefed in this case. The answer\nis unnecessary to resolving this appeal. I would therefore refrain from deciding the\npoint.\n\n We said in Bailey v. Feltmann, 810 F.3d 589 (8th Cir. 2016), that “this court\nhas not resolved whether an arrestee’s claim alleging denial of medical care is\nanalyzed under the Due Process Clause or the Fourth Amendment” and noted “a\nconflict in authority” on the question. The Seventh Circuit draws the line at a judicial\ndetermination of probable cause: “the Fourth Amendment governs the period of\nconfinement between arrest without a warrant and the preliminary hearing at which\na determination of probable cause is made, while due process regulates the period of\nconfinement after the initial determination of probable cause.” Villanova v. Abrams,\n972 F.2d 792, 797 (7th Cir. 1992); see Ortiz v. City of Chicago, 656 F.3d 523, 530\n(7th Cir. 2011). On the other hand, a divided panel of the Tenth Circuit ruled that a\nclaim based on alleged failure to prevent a detainee from committing suicide before\nhe was taken before a magistrate judge was governed by the Due Process Clause,\nBarrie v. Grand Cty., 119 F.3d 862, 865-69 (10th Cir. 1997), while a concurring\n\n\n 7\n Prior to oral argument, Officer Banks moved to be dismissed as a party to this\nappeal. That motion is denied.\n\n -20-\n\njudge concluded that the Fourth Amendment applied. Id. at 870 (Briscoe, J.,\nconcurring).\n\n In this case, Awnings loses under either approach. An arrestee’s asserted\nFourth Amendment right to be free from unreasonable neglect in communicating a\nneed for medical care was not clearly established in July 2013 when Awnings was\nseized, so Banks is entitled to qualified immunity on that claim. See Bailey, 810 F.3d\nat 593. If the more demanding deliberate indifference standard of the Due Process\nClause applies, then Awnings’s claim fails for lack of alleged conscience-shocking\nconduct. Ante, at 19. We need not say more to resolve the appeal.\n\n The court goes further, however, and says that “our precedents favor analyzing\nAwnings’s medical needs claim under Fourteenth Amendment standards.” Id. But\nour decisions do not resolve which constitutional provision applies. As we explained\nin Bailey, 810 F.3d at 593, the decision in Carpenter v. Gage, 686 F.3d 644 (8th Cir.\n2012), applied due process analysis to the claim of an arrestee alleging indifference\nto medical needs, but the plaintiff did not invoke the more favorable Fourth\nAmendment standard, so the issue was not joined. Id. at 650. Two earlier cases cited\nin Carpenter applied due process analysis, but neither suggested that the plaintiff had\nraised a claim of unreasonable seizure under the Fourth Amendment and did not\naddress that possibility. See McRaven v. Sanders, 577 F.3d 974, 979 (8th Cir. 2009);\nSpencer v. Knapheide Truck Equip. Co., 183 F.3d 902, 905 & n.3 (8th Cir. 1999).\n\n The court disclaims any decision about whether “an arrestee’s claim alleging\ndenial of medical care is analyzed under the Due Process Clause or the Fourth\nAmendment,” ante, at 19 (quoting Bailey, 810 F.3d at 593), but then decides the issue\nanyway as to an arrestee like Awnings. The doctrinal debate cited in Bailey concerns\nwhether claims arising after arrest but before a judicial determination of probable\ncause are governed by the Fourth Amendment. Awnings’s claim against Banks arose\nbefore a probable-cause determination, so the court necessarily rejects one of the two\n\n -21-\n\nconflicting lines of authority cited in Bailey by declaring that the Due Process Clause\ngoverns Awnings’s claim. I would reserve judgment on that significant question\nwhere it was not thoroughly briefed and is unnecessary to a decision.\n _________________________\n\n\n\n\n -22-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4356169/", "author_raw": "COLLOTON, Circuit Judge, concurring"}]}	SMITH	BEAM	COLLOTON	1		{}	2	0	1	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4578916/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Thompson L. AWNINGS, Formerly Known as Tristan Simon, Plaintiff-Appellant v. Joshua FULLERTON; Ryan Duncan, Defendants-Appellees Jeremy Carther; Todd Roberts, Defendants Tarvis Banks; 1-10 Does, Defendants-Appellees\nCourt: U.S. Court of Appeals for the Eighth Circuit\nDate decided: 2019-01-04\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-2884\n ___________________________\n\n Thompson L. Awnings, formerly known as Tristan Simon\n\n lllllllllllllllllllllPlaintiff - Appellant\n\n v.\n\n Joshua Fullerton; Ryan Duncan\n\n lllllllllllllllllllllDefendants - Appellees\n\n Jeremy Carther; Todd Roberts\n\n lllllllllllllllllllllDefendants\n\n Tarvis Banks; 1-10 Does\n\n lllllllllllllllllllllDefendants - Appellees\n ____________\n\n Appeal from United States District Court\n for the District of Nebraska - Lincoln\n ____________\n\n Submitted: May 16, 2018\n Filed: January 4, 2019\n ____________\n\nBefore SMITH, Chief Judge, BEAM and COLLOTON, Circuit Judges.\n ____________\n\nSMITH, Chief Judge.\n\n Thompson Awnings sued, among others, Officers Joshua Fullerton, Ryan\nDuncan, and Tarvis Banks of the Lincoln Police Department (LPD) under 42 U.S.C.\n§ 1983 in their individual capacities. Awnings’s suit alleged multiple constitutional\nviolations by the officers, including false arrest, excessive force, and denial of\nmedical care. He claims the district court1 erred by: (1) refusing to disqualify the\nentire City of Lincoln Attorney’s Office; (2) granting qualified immunity to Officers\nFullerton and Duncan; and (3) dismissing Officer Banks from Awnings’s suit\npursuant to Federal Rule of Procedure 12(b)(6). We affirm.\n\n I. Background\n A. Awnings’s Arrest2\n On an early morning in July 2013, Officers Fullerton and Duncan of the LPD\nencountered Damien Wilkins on a sidewalk in Lincoln. The officers questioned\nWilkins about his possible involvement with criminal activity. Awnings, Wilkins’s\ncompanion, inserted himself into the conversation and began asking the officers why\nthey were questioning Wilkins. Officer Fullerton informed Awnings that the officers\nwere conducting law enforcement business with Wilkins. Officer Fullerton then told\n\n\n 1\n The Honorable Richard G. Kopf, United States District Judge for the District\nof Nebraska.\n 2\n Although Awnings disputed the defendants’ version of the events, the district\ncourt found that most of the defendants’ statements of material facts did not\ncontrovert Awnings’s own recitation. See Mem. & Order at 7–23, Awnings v.\nFullerton, No. 4:15-cv-03078-RGK-CRZ (D. Neb. Apr. 24, 2017), ECF No. 133\n(“Qualified Immunity Order”). Upon review, we find that the parties’ versions of\nevents largely do not controvert each other, and we recite here only the undisputed\nfacts. See Morris v. City of Chillicothe, 512 F.3d 1013, 1018 (8th Cir. 2008) (standard\nof review) (citation omitted).\n\n -2-\n\nAwnings, who had been drinking, that he could wait for his friend a short distance\naway, if he wished.\n\n Unsatisfied, Awnings—now obviously angry and agitated—refused the\ndirection to step away. Awnings then, in an expletive-laced exclamation, declared that\n“[h]e would protect his buddy” and that he was “not going anywhere.” Qualified\nImmunity Order at 9. Awnings was several feet from Officer Fullerton, and the officer\ninstructed Awnings to step away from the officers. Awnings again refused, asking,\n“Why should I leave?” Id. at 9. Officer Fullerton answered that Awnings was\ninterfering with an investigation and that his behavior distracted them from their\nwork. Awnings uttered another expletive and told the officer, “I am staying right\nhere.” Id. Officer Fullerton—for the third time—asked Awnings to leave the\nimmediate area; Officer Fullerton reinforced his request by warning Awnings that if\nhe refused, he would go to jail. In response, Awnings again blurted out the same\nexpletive, followed by “I’ll kick your ass.” Id.\n\n At that point, Officer Fullerton informed Awnings that he was under arrest and\ncommanded Awnings to place his hands behind his back. Awnings refused, telling\nOfficer Fullerton, “I’m gonna kick your [expletive] ass.” Id. Officer Fullerton then\n“reached out and grabbed onto [Awning’s] arm and wrist, but then [Awnings]\nstiffened his arm and began to pull away. Officer Fullerton again told [Awnings] he\nwas under arrest and to stop resisting and [Awnings] continued to resist and pull\naway.” Id. at 10. The officer then executed a hip toss maneuver, which put Awnings\n“on his back on the ground with Officer Fullerton on top of him.” Id. The two men\nbegan to fight. Officer Jon-Eric Meyer, who had arrived at the scene, joined with\nOfficer Duncan and came to Officer Fullerton’s assistance. As the officers attempted\nto handcuff Awnings, he resisted, “actively kicking and punching at the officers.” Id.\nAwnings then\n hook[ed] his hand under Officer Duncan’s LPD uniform shirt and\n [brought] his hand up to the collar, grabbing onto the body armor and\n\n -3-\n\n undershirt as well as his collar. [Awnings] used this hold . . . to try to\n pull Officer Duncan to the ground with force, causing the collar to cinch\n around Officer Duncan’s neck.\n\nId. Meanwhile, “Officer Duncan gave numerous commands for [Awnings] to let go”\nand to put his hands behind his back. Id. Awnings ignored the directive and continued\nto tighten his grip on Officer Duncan’s shirt collar, and the officer “tried to strike\n[Awnings] a couple of times” to induce Awnings to release his grasp. Id. at 11.\nAwnings pinned Officer Duncan to the ground.\n\n Officer Duncan yelled to his colleagues for help. Awnings eventually released\nOfficer Duncan’s shirt, and the officers then rolled Awnings onto his stomach and\nhandcuffed him. Awnings refused to walk to the police cruiser. Officer Jeremy\nCarther from the University of Nebraska–Lincoln Police Department arrived and\nassisted the LPD officers in placing Awnings on his back in the backseat of the\ncruiser. Awnings continued to resist and yell profanities. Awnings kicked Officer\nCarther in the chest twice. At that point, Officers Fullerton, Meyer, and Carther\nremoved Awnings from the cruiser and called for a vehicle with a “full backseat\ncage.” Id. at 11. Awnings continued to resist the officers, and when a police vehicle\nequipped with the full cage arrived, Officer Chris Howard placed Awnings in leg\nrestraints. The officers then placed Awnings into the police cruiser. Officer Duncan\nsustained minor injuries from the scuffle.\n\n\n\n\n -4-\n\n B. Awnings’s Transport to the Detention Center3\n Awnings sustained visible injuries during his arrest. Because he was bleeding,\nthe LPD officers called for an ambulance to transport Awnings to the Bryan West\nMedical Center (“the Hospital”). Officer Howard accompanied Awnings in the\nambulance. At the Hospital, Awnings told the examining physician that he believed\nhe had one or more fractured ribs. The doctor ordered a chest X-ray, which revealed\nno rib fracture. The doctor pronounced Awnings fit for incarceration, but he ordered\na follow-up examination at the Hospital within one to two days. Officer Banks, who\nhad relieved Officer Howard during Awnings’s examination at the Hospital, then\ntransported Awnings to the Lancaster County Jail. Officer Banks neglected to inform\njail personnel of the doctor’s request for a follow-up appointment with Awnings; he\n“simply informed jail personnel that [Awnings] had been to the emergency room and\nhad been deemed fit for confinement.” Mem. & Order at 3, Awnings v. Fullerton, No.\n4:15-cv-03078-RGK-CRZ (D. Neb. Jan. 20, 2016), ECF No. 40.\n\n C. District Court and Other Proceedings\n Awnings’s scuffle with the LPD led to several, subsequent state criminal\ncharges.4 Awnings pleaded no contest to two of the charges, and the District Court\nof Lancaster County, Nebraska, sentenced him to two consecutive 90-day jail terms.\nThe Nebraska Court of Appeals upheld Awnings’s convictions.\n\n\n\n\n 3\n We recite these facts as alleged in Awnings’s complaint and assume them to\nbe true. See Zink v. Lombardi, 783 F.3d 1089, 1098 (8th Cir. 2015) (en banc) (per\ncuriam) (“We review a district court’s grant of a motion to dismiss . . . de novo. We\nassume all facts in the complaint to be true, and draw all reasonable inferences in\nfavor of the non-moving party.” (citations omitted)).\n 4\n These charges included assault on an officer in the third degree, in violation\nof Neb. Rev. Stat. § 28-931, assault in the third degree, in violation of Neb. Rev. Stat.\n§ 28-310(1), and resisting arrest, in violation of Neb. Rev. Stat. § 28-904(1).\n\n -5-\n\n After his state convictions, Awnings filed a lawsuit in federal court pursuant\nto 42 U.S.C. § 1983, alleging, among other things, that Officer Fullerton arrested\nAwnings without probable cause and that Officers Fullerton and Duncan used\nexcessive force in effecting his arrest. Awnings also alleged that Officer\nBanks—because of his failure to inform jail personnel of the Hospital doctor’s\nrequest for a follow-up examination—deprived him of his right to be free from\nunreasonable seizures under the Fourth Amendment. Awnings also claimed that\nOfficer Banks’s conduct amounted to a denial of medical care, violating his due\nprocess rights under the Fourteenth Amendment.\n\n Elizabeth Elliott, an attorney employed by the City of Lincoln Attorney’s\nOffice (CLAO), initially represented the LPD officers. In that capacity, she filed a\nnotice of intent to serve subpoena duces tecum with the district court. Elliott\npreviously had worked in the Lancaster County Public Defender’s Office (LPDO).\nIn fact, Elliott worked as an attorney in that office while the LPDO defended\nAwnings’s state criminal charges. Awnings objected to the notice, and Elliott moved\nto withdraw from the case upon discovering the potential conflict. Awnings then\nmoved to disqualify the entire CLAO, claiming Elliott’s employment at the LPDO\nwhile that office represented Awnings created a conflict of interest that could\nprejudice his civil suit against the officers.\n\n The magistrate judge considered Awnings’s motion and found that while\nemployed with the LPDO, Elliott “did not represent [Awnings], never appeared with\n[Awnings] in court, and never spoke to him about his case. She [did] not recall\n[Awnings] or the underlying facts of his state criminal case. She was never ‘actively\ninvolved’ in [Awnings’s] underlying state criminal case.” Mem. & Order at 3,\nAwnings v. Fullerton, No. 4:15-cv-03078-RGK-CRZ (D. Neb. Oct. 14, 2015), ECF\nNo. 26 (citation omitted). And Awnings pleaded no contest to the criminal charges\nafter Elliott left the LPDO. The CLAO assured the court that “Elliott has no\nconfidential information regarding [Awnings] and as such, has not divulged any\n\n -6-\n\nconfidential information to [the CLAO] about [Awnings] or his criminal case.” Id. at\n4. Further, the CLAO had screened Elliott from any further work in Awnings’s case.\nFinding no imputed conflict of interest stemming from Elliott’s prior employment at\nthe LPDO, the magistrate judge denied Awnings’s motion to disqualify the entire\nCLAO. The district court affirmed the magistrate judge’s order.\n\n Officers Banks, Duncan, and Fullerton moved to dismiss Awnings’s § 1983\nsuit under Federal Rule of Civil Procedure Rule 12(b)(6). The district court partially\ngranted the motion and dismissed Officer Banks from the suit. Officers Duncan and\nFullerton subsequently filed a motion for summary judgment, which the district court\ngranted. The court concluded that the Heck5 doctrine barred Awnings from claiming\nfalse arrest. But even if Heck did not foreclose Awnings’s false arrest claim, the\ndistrict court determined that Officers Duncan and Fullerton had probable cause to\narrest Awnings. Further, the court concluded that the officers’ use of force was\n“objectively reasonable under the circumstances and did not violate [Awnings’s]\nconstitutional rights.” Qualified Immunity Order at 34. The district court then granted\nsummary judgment to the officers. The court held that the officers were entitled to\nqualified immunity and dismissed both the false arrest and the excessive force claims.\n\n II. Discussion\n In this appeal, Awnings claims the district court erred by: (1) failing to\ndisqualify the entire CLAO; (2) granting qualified immunity to Officers Duncan and\nFullerton; and (3) granting Officer Banks’s Rule 12(b)(6) motion. We disagree and\naffirm.\n\n A. Disqualification of the CLAO Attorneys\n Awnings argues that Elliott’s employment with the LPDO prior to joining the\nCLAO raises a conflict of interest. Furthermore, he contends that Elliott’s conflict\n\n\n 5\n Heck v. Humphrey, 512 U.S. 477 (1994).\n\n -7-\n\nshould be imputed to the entire CLAO and that the district court should have granted\nAwnings’s motion to disqualify. We review the district court’s denial of attorney\ndisqualification for abuse of discretion. See United States v. Kehoe, 310 F.3d 579,\n590 (8th Cir. 2002) (citing Fred Weber, Inc. v. Shell Oil Co., 566 F.2d 602, 605–06\n(8th Cir. 1977)). “Because of the potential for abuse by opposing counsel,\n‘disqualification motions should be subjected to particularly strict scrutiny.’”\nMacheca Transp. Co. v. Phila. Indem. Ins. Co., 463 F.3d 827, 833 (8th Cir. 2006)\n(quoting Harker v. Comm’r, 82 F.3d 806, 808 (8th Cir. 1996)). “[W]e apply the same\nrules governing the professional conduct of attorneys that the district court has\nadopted.” Harker, 82 F.3d at 808 (citing Blair v. Armontrout, 916 F.2d 1310, 1333\n(8th Cir. 1990)). The moving party bears the burden of proving that disqualification\nis required. See A.J. by L.B. v. Kierst, 56 F.3d 849, 859 (8th Cir. 1995) (citing Duncan\nv. Merrill, Lynch, Pierce, Fenner & Smith, Inc., 646 F.2d 1020, 1028 (5th Cir. 1981)).\n\n Under its general rules, the district court does not “adopt other codes of\nprofessional responsibility or ethics.” NEGenR 1.7(b)(2)(A). But, “the court may\nconsult other codes of professional responsibility or ethics to determine whether a\nlawyer has engaged in conduct unbecoming of a member of the bar.” NEGenR\n1.7(b)(2)(B); cf. Malone v. Kantner Ingredients, Inc., No. 4:12CV3190, 2013 WL\n5524548, at 7 (D. Neb. Oct. 3, 2013) (“When analyzing motions to disqualify, this\ncourt refers to the Nebraska Rules of Professional conduct.”). In this case, the\nmagistrate judge cited State v. Kinkennon, 747 N.W.2d 437 (Neb. 2008), as the basis\nfor denying Awnings’s motion to disqualify the entire CLAO. The district court\nsubsequently affirmed the magistrate judge.\n\n In Kinkennon, a Nebraska court appointed an attorney from a private law firm\nto represent a defendant in a criminal case. Id. at 441. During the pendency of the\ncase, another attorney from the law firm began employment as a deputy county\nattorney. Id. The defendant then moved to disqualify the entire county attorney’s\noffice, asking the state court to appoint a special prosecutor. Id. The state court denied\n\n -8-\n\nthe defendant’s motion. The Nebraska Supreme Court, after rejecting a per se rule of\ndisqualification, affirmed the trial court and explained:\n\n We recognize that complete disqualification of a prosecutor’s office may\n be warranted in cases where the appearance of unfairness or impropriety\n is so great that the public trust and confidence in our judicial system\n simply could not be maintained otherwise. Such an extreme case might\n exist, even where the State has done all in its power to establish an\n effective screening procedure precluding the individual lawyer’s direct\n or indirect participation in the prosecution. But when the disqualified\n attorney is effectively screened from any participation in the prosecution\n of the defendant, the prosecutor’s office may, in general, proceed with\n the prosecution.\n\nId. at 444 (footnote omitted).\n\n Awnings says the district court erroneously relied on Kinkennon and contends\nthat our prior decision, State of Arkansas v. Dean Foods Products Co., 605 F.2d 380\n(8th Cir. 1979), overruled on other grounds, In re Multi-Piece Rim Products Liability\nLitigation, 612 F.2d 377 (8th Cir. 1980), compels reversal of the district court. He is\nwrong. As we explained,\n\n [i]n Dean Foods Products, this court affirmed a district court order\n disqualifying an Assistant Attorney General from taking part in an\n antitrust action against a defendant that was being represented by his\n former law firm. Moreover, the court disqualified those members of the\n Attorney General’s staff who had actively participated in the case under\n the supervision of the disqualified attorney. The court explicitly reserved\n judgment on whether the conflict should have resulted in the imputed\n disqualification of the entire Attorney General’s office.\n\nBlair, 916 F.2d at 1332 (emphasis added) (citations omitted). Thus, Dean Foods\nProducts does not command the disqualification of an entire attorney’s office even\n\n -9-\n\nwhen an attorney in that office possesses confidential information about the\ndefendant. Rather, it is satisfactory that the attorney and the staff supervised by the\nattorney be disqualified and appropriately screened.\n\n We find no conflict between Kinkennon and Dean Foods Products, and neither\ndecision supports disqualifying the entire CLAO in Awnings’s civil case. When the\npotential for a conflict became known, Elliott moved to recuse herself from the case\nout of caution. She did not represent Awnings in his state criminal proceedings, did\nnot recall Awnings or his criminal case, and was never actively involved in the\ncriminal proceedings. Awnings pleaded no contest to the criminal charges after Elliott\ndeparted the LPDO. Aside from filing the notice of intent to serve a subpoena duces\ntecum, the CLAO screened Elliott from further participation in Awnings’s case.\nWhile Awnings suggested that Elliott might have imparted confidential information\nregarding his criminal case to the CLAO, see Appellant’s Br. at 16–17, “[g]eneral\nassertions that an attorney possesses knowledge of a party’s ‘trade secrets, trial\nstrategies, negotiation strategies, legal theories or business practices’ are not typically\nsufficient and can be overcome by an attorney affidavit stating the attorney has no\nknowledge of such items.” Infogroup, Inc. v. DatabaseLLC, No. 8:14CV49, 2016 WL\n2350113, at 2 (D. Neb. May 4, 2016) (citing Jacob N. Printing Co. v. Mosley, 779\nN.W.2d 596, 602 (Neb. 2010)). Awnings only presented conjecture to support his\nassertion that Elliott possessed confidential information regarding his case. Elliott,\non the other hand, submitted an affidavit claiming no knowledge of the case from her\nprevious employment.\n\n Because Awnings failed in his burden to show the necessity of disqualifying\nof the entire CLAO, we find no abuse of discretion in the district court’s denial of\nAwnings’s motion to disqualify. See A.J. by L.B., 56 F.3d at 859 (citation omitted).\n\n\n\n\n -10-\n\n B. Qualified Immunity\n Next, Awnings claims the district court erred when it granted qualified\nimmunity to Officers Duncan and Fullerton because the district court erroneously:\n(1) excluded Awnings’s statements about his medical condition; (2) admitted\naffidavits from the LPD officers; and (3) ignored material fact disputes raised by\nAwnings. “We review the district court’s grant of summary judgment de novo, and\nmay affirm the district court on any basis supported by the record.” Figg v. Russell,\n433 F.3d 593, 597 (8th Cir. 2006) (citing Wilson v. Spain, 209 F.3d 713, 716 (8th Cir.\n2000); Gonzales-Perez v. Harper, 241 F.3d 633, 638 n.6 (8th Cir. 2001)). We review\nthe district court’s admission of evidence for summary judgment purposes under an\nabuse-of-discretion standard. Gannon Int’l., Ltd. v. Blocker, 684 F.3d 785, 793 (8th\nCir. 2012) (citing Warner Bros. Entm’t, Inc. v. X One X Prods., 644 F.3d 584, 591\n(8th Cir. 2011)). We address each of Awnings’s claims in turn.\n\n 1. Evidentiary Rulings\n Awnings claims that the district court erred in excluding statements he made\nabout his medical examination at the Hospital after his release from jail. He also\nasserts that the court erred in admitting affidavits from Officers Fullerton, Duncan,\nMeyer, Howard, and one other officer of the LPD and from Officer Carther from the\nUniversity of Nebraska–Lincoln Police Department.\n\n Awnings submitted a declaration stating that following his release from jail, he\nvisited a physician at the Hospital, who diagnosed him with four broken ribs and a\ncollapsed lung. The district court excluded Awnings’s medical condition statement\nbecause the “[examining] physician [was] not identified, the diagnoses [were]\nhearsay, and there [was] no medical evidence to establish a causal link to” Awning’s\nencounter with the LPD. Qualified Immunity Order at 22 n.22. Awnings says that at\nthe summary judgment stage, he need not present evidence in a trial-ready form. He\ncontends that he could have called the examining physician to testify at trial. Further,\nhe asserts that he was not required to disclose the physician’s name, especially when\n\n -11-\n\nthe doctor’s identity was readily discernible from the record. Lastly, Awnings, citing\nZiesmer v. Hagen, 785 F.3d 1233 (8th Cir. 2015), argues that because his injuries\nwere not sophisticated and within the range of common experience, he was not\nrequired to produce an expert witness to prove causation. We disagree.\n\n In Ziesmer, a police search of an individual turned into a physical altercation.\nId. at 1236. The trooper “tackled the [plaintiff, Ziesmer,] to the ground and dug his\nknee into [Ziesmer’s] back, while pulling Ziesmer’s hands behind his back, causing\nhis shoulder to pop out of its socket. Trooper Hagen popped Ziesmer’s shoulder back\ninto its socket.” Id. “Immediately after the incident Ziesmer reports that he had\nbruising and scrapes on his face and a large knot on the back of his head. He took\npictures of his bruised face when he got home.” Id. Ziesmer also sustained a welt on\nhis head. Id. We reversed the district court’s conclusion that Ziesmer needed to\nproduce a medical expert to opine on Ziesmer’s condition, reasoning:\n\n It is true that “[w]hen an injury is sophisticated, proof of causation\n generally must be established by expert testimony.” Robinson v. Hager,\n 292 F.3d 560, 564 (8th Cir. 2002). However, “[a] causal connection\n between an event and an injury may be inferred in cases in which a\n visible injury or a sudden onset of an injury occurs.” Id. (quoting Turner\n v. Iowa Fire Equip. Co., 229 F.3d 1202, 1210 (8th Cir. 2000)).\n\n Given that Ziesmer claims he began experiencing neck pain\n shortly after the alleged altercation with Trooper Hagen, and given that\n there is no evidence suggesting he experienced any such pain before [the\n incident with the trooper], a layperson could conclude that Ziesmer’s\n symptoms were caused by the trauma to his neck and back. See also Hill\n v. Gonzalez, 454 F.2d 1201, 1203 (8th Cir. 1972) (noting that “expert\n testimony is not necessary” to prove causation when the “inferences to\n be drawn from the facts are within the range of common experience” of\n the jury members (quotation omitted)); cf. Saunders v. Frost, 124 Fed.\n Appx. 468, 469 (8th Cir. 2005) (agreeing that the plaintiff’s knee injury\n was sophisticated, requiring an expert witness to prove causation,\n\n\n -12-\n\n because his knee “had a long medical history marked by earlier traumas\n and an earlier surgery”). Injuries such as those claimed by Ziesmer are\n “within the range of common experience,” and the lack of a medical\n expert on this issue is not fatal to his claim at this stage of the\n proceedings.\n\nId. at 1239 (first and second alterations in original).\n\n Here, Awnings’s alleged injuries—fractured ribs and a collapsed lung—were\ninternal and required sophisticated medical tools to diagnose accurately. As such,\nAwnings’s non-visible alleged injuries are not within the range of common\nexperience where inferences may be made with confidence. Further, Awnings’s visit\nto the Hospital immediately after his arrest showed no fractured ribs or a collapsed\nlung. In the absence of medical evidence, only Awnings’s own allegations remain.\nBut, “[a] plaintiff may not merely point to unsupported self-serving allegations, but\nmust substantiate allegations with sufficient probative evidence that would permit a\nfinding in the plaintiff’s favor.” Davidson & Assocs. v. Jung, 422 F.3d 630, 638 (8th\nCir. 2005) (citing Wilson v. Int’l Bus. Mach. Corp., 62 F.3d 237, 241 (8th Cir. 1995));\nsee also Bacon v. Hennepin Cty. Med. Ctr., 550 F.3d 711, 716 (8th Cir. 2008) (“[A]\nproperly supported motion for summary judgment is not defeated by self-serving\naffidavits.” (alteration in original) (quoting Gander Mountain Co. v. Cabela’s, Inc.,\n540 F.3d 827, 831 (8th Cir. 2008))). Thus, in contrast to Ziesmer, without probative\nmedical evidence, Awnings can establish neither severity of injury nor causation. This\nevidentiary void is fatal to Awnings’s claim. We find no abuse of discretion in the\ndistrict court’s conclusion that Awnings failed to present evidence of a causal link\nbetween his alleged injuries and his encounter with the law enforcement officers.\n\n Awnings also challenges the district court’s decision to admit affidavits from\nthe officers, contending that the affidavits should have been excluded because the\nofficers do not state that they had personal knowledge of “any of the facts [they]\nrecited, and “the affidavit[s] do[] not establish that [the officers] would be competent\n\n -13-\n\nto testify as to the objectionable portions.” Appellant’s Br. at 39. Awnings cites to no\nauthority that the affidavits must expressly state they came from personal knowledge,\nand we decline to endorse the kind of formalism that Awnings propounds. The district\ncourt found that the officers’ statements were based on personal knowledge and\noverruled Awnings’s objections. See Qualified Immunity Order at 4 n.1. In his\nobjections, Awnings presented no arguments or evidence why the officers would not\nbe competent to testify at a trial. We find no abuse of discretion and affirm the district\ncourt’s evidentiary rulings.\n\n 2. False Arrest\n Awnings contests the district court’s conclusion that the Heck doctrine barred\nhis false arrest claim. He also challenges the district court’s alternative ruling—that\neven if Heck does not bar Awnings’s claim, Officers Duncan and Fullerton had\nprobable cause to arrest Awnings. We need not address Awnings argument that the\ndistrict court misapplied Heck because the officers had probable cause to arrest him\nfor obstruction of a peace officer.\n\n Awnings argues that at the beginning of his encounter with Officers Fullerton\nand Duncan, he did not resist. The record, however, does not support Awnings’s\ncontention. According to Awnings, Officer Fullerton “yelled at him to shut up and\npointed to a direction behind him.” Qualified Immunity Order at 17. Awnings averred\nthat he could not hear Officer Fullerton and he “yelled back at [Officer] Fullerton.”\nId. at 18. Officer Fullerton then “grabbed [Awnings’s] right arm and started to yank\nit.” Id. “Awnings [then] recoiled and tried to get his arm loose.” Id. Awnings does not\ndispute that Officers Fullerton and Duncan were conducting law enforcement\nbusiness with his companion, that Officer Fullerton pointed Awnings away from the\nscene, or that he refused to comply. At that point, Officer Fullerton grabbed Awnings,\nand Awnings pulled away.\n\n\n\n\n -14-\n\n Under Nebraska law, Awnings’s admitted conduct qualified as obstruction of\na peace officer and resisting arrest. “A person commits the offense of obstructing a\npeace officer, when, by . . . physical interference, or obstacle, he . . . intentionally\nobstructs, impairs, or hinders . . . the enforcement of the penal law or the preservation\nof the peace by a peace officer . . . acting under color of his . . . official authority.”\nNeb. Rev. Stat. § 28-906(1)(a). Here, Awnings acknowledged that Officer Fullerton\nwas initially at least five feet from him, but Officer Fullerton moved closer during\ntheir encounter. Officer Fullerton had previously told Awnings “that it was none of\n[Awnings’s] business, and that if he wanted to wait for Wilkins he could do so at\nsome distance away.” Qualified Immunity Order at 16–17. Awnings refused to move\nback. Officer Fullerton subsequently gestured to Awnings to move away by waving.\nBut Awnings again refused to move and “yelled back at [Officer] Fullerton.” Id. at\n18. Awnings’s does not deny yelling, “[Expletive] you, I am staying right here” and\n“[Expletive] you, I’ll kick your ass.” Id. at 9. Awnings’s conduct constituted\nobstruction of a peace officer. See State v. Rosado, No. A-09-014, 2009 WL 3381652,\nat 2 (Neb. Ct. App. Oct. 20, 2009) (holding that pounding chest, saying “shoot me,\n[expletive],” and being in close proximity to peace officer attempting to arrest another\nindividual was obstructing a peace officer under Nebraska law); State v. Chapman,\nNo. A-92-451, 1993 WL 100146, at 5 (Neb. Ct. App. Apr. 6, 1993) (holding that\nunder the Nebraska obstruction statute, a defendant “could ‘threaten to use force or\nviolence’ with words, such as telling [the officer] he ‘was going to kick [his] ass’”\n(second alteration in original)); see also Ehlers v. City of Rapid City, 846 F.3d 1002,\n1009 (8th Cir. 2017) (concluding that “[r]efusing to comply with a police officer’s\norders can constitute obstruction” under a similar South Dakota statute (citation\nomitted)).\n\n Based on Awnings’s obstruction, Officer Fullerton had probable cause to\narrest. With probable cause, it was unnecessary for Officer Fullerton to issue a\n“verbal advisement of an attempted arrest”; rather, “actions to effectuate physical\ncontrol over [the defendant] [are sufficient to] constitute[] an attempt to arrest.” State\n\n -15-\n\nv. Heath, 838 N.W.2d 4, 17 (Neb. Ct. App. 2013) (first alteration in original) (citation\nomitted). By grabbing Awnings’s arm, Officer Fullerton attempted to effectuate\nphysical control over Awnings. Awnings resisted by pulling away. Awnings’s\nensuing fight with the officers is undisputed.\n\n 3. Excessive Force\n Awnings also faults the district court for granting qualified immunity to\nOfficers Fullerton and Duncan on his excessive force claim. He argues genuine\ndisputes of material facts preclude the court’s grant of qualified immunity.\n\n “To determine whether a particular use of force was excessive, the court\nconsiders whether it was objectively reasonable under the circumstances, relying on\nthe perspective of a reasonable officer present at the scene, rather than the 20/20\nvision of hindsight.” Ehlers, 846 F.3d at 1011 (cleaned up). “Force is excessive when\nan officer’s actions are not objectively reasonable in light of the facts and\ncircumstances confronting him.” Kukla v. Hulm, 310 F.3d 1046, 1050 (8th Cir. 2002)\n(citing Guite v. Wright, 147 F.3d 747, 750 (8th Cir. 1998)). “When an arrestee flees\nor resists, some use of force by the police is reasonable.” Greiner v. City of Champlin,\n27 F.3d 1346, 1355 (8th Cir. 1994) (citing Foster v. Metro. Airports Comm’n, 914\nF.2d 1076, 1082 (8th Cir. 1990)). “[E]vidence of only de minimis injury [does not]\nforeclose[] a claim of excessive force under the Fourth Amendment.” Chambers v.\nPennycook, 641 F.3d 898, 906 (8th Cir. 2011). “[I]t is logically possible to prove an\nexcessive use of force that caused only a minor injury . . . . ” Id. We “focus instead\non whether the force applied is reasonable from the perspective of a reasonable\nofficer on the scene at the time the force is used.” Id. (citing Graham v. Connor, 490\nU.S. 386, 396 (1989)).\n\n We agree with the district court that Awnings showed no genuine disputes of\nmaterial fact between his version of events and the officers’ version. Here, the record\nshows that Officer Fullerton executed a takedown maneuver after Awnings resisted\n\n -16-\n\narrest for obstruction under Nebraska law. Awnings alleged that officers joined in\nbeating him, but Officers Fullerton and Duncan’s evidence—uncontroverted by\nAwnings—showed an uncooperative and bellicose Awnings who resisted arrest by\nswinging and kicking at the officers.6 Also of note, Awnings contends that at least\nfour officers physically attacked him. But, according to the proof of record, Awnings\nsustained only a de minimis injury—a small laceration over his right eyebrow. See\nEllison v. Lesher, 796 F.3d 910, 917 (8th Cir. 2015) (“Our cases characterize\nrelatively minor scrapes, bruises, and contusions as de minimis.” (citing Ziesmer, 785\nF.3d at 1236–37; Wertish v. Krueger, 433 F.3d 1062, 1066–67 (8th Cir. 2006))).\nOfficer Duncan also suffered non-serious injuries during his attempt to subdue\nAwnings.\n\n Here, other than generic assertions, Awnings’s statements “do not give the\nslightest hint about the amount of force the officer[s] used or why the amount of force\nwas unreasonable in light of [his] persistent efforts to [resist] the police.” Edwards\nv. Giles, 51 F.3d 155, 157 (8th Cir. 1995) (citation omitted) (concluding that\nassertions such as the officers “threw [plaintiff] to the ground” or plaintiff “was\nthrown to the ground forcibly” are “abstract assertions [that] tell us nothing more than\nthat one officer used some physical power to move [the plaintiff to the ground”).\nReviewing the facts in the light most favorable to Awnings, he has failed to show that\nOfficers Fullerton and Duncan used unreasonable force to arrest him. See Ehlers, 846\nF.3d at 1010–11. Officers Fullerton and Duncan are entitled to qualified immunity.\n\n\n\n\n 6\n Awnings stated that he pulled his arm back when Officer Fullerton first\ngrabbed his arm; that after Officer Fullerton’s takedown, Awnings tried to get Officer\nFullerton off and to get away from the officer; that he tried to curl his body into a ball\n(thereby making it difficult for the officers to handcuff Awnings); and that he jumped\nout of the police vehicle after having been placed in the back seat. See Qualified\nImmunity Order at 18–20.\n\n -17-\n\n C. Motion to Dismiss\n Awnings contends that the district court erred in dismissing Officer Banks from\nthe suit. Awnings argues that he adequately stated a claim for deliberate indifference\nto his serious medical needs. Awnings’s allegation stemmed from Officer Banks’s\nfailure to inform the jail staff of Awnings’s need for a follow-up visit with the\nHospital. We review de novo the district court’s grant of a motion to dismiss under\nFederal Rule of Civil Procedure 12(b)(6). Wong v. Minn. Dep’t of Human Servs., 820\nF.3d 922, 927 (8th Cir. 2016) (citation omitted). We assume the truth of Awnings’s\nfactual allegations, and “we construe the complaint in the light most favorable to the\nnonmoving party.” Id. (quoting Ritchie v. St. Louis Jewish Light, 630 F.3d 713,\n715–16 (8th Cir. 2011)).\n\n The parties do not dispute that Officer Banks neglected to inform jail personnel\nof Awnings’s need for a follow-up medical appointment. Awnings argues that his\ntransport from the Hospital to the jail was part of his arrest; therefore his claim\nagainst Officer Banks necessarily implicates the Fourth Amendment. But, historically,\nin this circuit, claims of deliberate indifference to an arrestee’s medical needs are\n“properly analyzed under the Due Process Clause of the Fourteenth Amendment.”\nCarpenter v. Gage, 686 F.3d 644, 650 (8th Cir. 2012) (citations omitted). Unresolved\nis “the question whether the Fourth Amendment continues to provide individuals with\nprotection against the deliberate use of excessive physical force beyond the point at\nwhich arrest ends and pretrial detention begins.” Graham, 490 U.S. at 395 n.10\n(emphasis added); see also Chambers, 641 F.3d at 905 (“We have noted the existence\nof a ‘legal twilight zone’ between arrest and sentencing, where it is unclear whether\nexcessive force claims are governed by the Fourth Amendment or cases decided based\non the Fourteenth Amendment and substantive due process.” (emphasis added)\n(quoting Wilson v. Spain, 209 F.3d 713, 715 (8th Cir. 2000))). Awnings’s claim\nagainst Officer Banks is a failure to provide adequate medical services—not an\nexcessive force claim related to his arrest. Instead, Awnings claim against Officer\nBanks relates to the sufficiency of his post-arrest, post-medical examination, medical\n\n -18-\n\ncare. It is true that we have not as yet “resolved whether an arrestee’s claim alleging\ndenial of medical care is analyzed under the Due Process Clause or the Fourth\nAmendment. Bailey v. Feltmann, 810 F.3d 589, 593 (8th Cir. 2016). We need not do\nso here. The facts distinguish this case from those arising from an allegation of\nexcessive force. Factually, any alleged denial of medical care incident to Awnings’s\narrest ended when he actually received medical attention at the hospital. Awnings’s\nclaim against Officer Banks relates to Officer Banks’s omission to convey the follow-\nup medical appointment ordered by the doctor—not from his participation in\nAwnings’s arrest. In fact, Officer Banks did not participate in the arrest of Awnings.\nUnlike the plaintiff in Carpenter, Awnings was first transported for medical treatment\nbefore being taken to jail. On this record, our precedents favor analyzing Awnings’s\nmedical needs claim under Fourteenth Amendment standards.\n\n Under the Fourteenth Amendment, “‘[d]eliberate indifference’ entails a level\nof culpability equal to the criminal law definition of recklessness, that is, a prison\nofficial ‘must both be aware of facts from which the inference could be drawn that a\nsubstantial risk of serious harm exists, and he must also draw the inference.’” Bender\nv. Regier, 385 F.3d 1133, 1137 (8th Cir. 2004) (quoting Farmer v. Brennan, 511 U.S.\n825, 837 (1994)). “The standard for evaluating a substantive due process claim is\nwhether the alleged ‘behavior of the governmental officer is so egregious, so\noutrageous, that it may fairly be said to shock the contemporary conscience.’”\nSchmidt v. City of Bella Villa, 557 F.3d 564, 574 (8th Cir. 2009) (quoting Rogers v.\nCity of Little Rock, 152 F.3d 790, 797 (8th Cir. 1998)). Here, Awnings sustained a\nsmall laceration, and his examining physician post-arrest declared Awnings fit for\nincarceration. Further, a chest X-ray showed no fractured ribs or lung damages. Under\nthese circumstances, it cannot be said that Officer Banks’s failure to inform the jail\nstaff of Awnings’s follow-up medical visit rises to the level of conduct that “shocks\nthe contemporary conscience.” Id. The district court correctly dismissed Awnings’s\nclaim against Officer Banks under Rule 12(b)(6).\n\n\n\n -19-\n\n III. Conclusion\n 7\n We affirm.\n[END_CASE]", "role": "user" } ]
4,579,251	UNITED STATES of America, Plaintiff - Appellee v. Charles EAGLE PIPE, Defendant - Appellant	United States v. Charles Eagle Pipe	2019-01-07	17-3039	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Smith, Loken, Gruender", "parties": "", "opinions": [{"author": "LOKEN, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3039\n ___________________________\n\n United States of America\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n v.\n\n Charles Eagle Pipe\n\n lllllllllllllllllllllDefendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the District of South Dakota - Aberdeen\n ____________\n\n Submitted: October 15, 2018\n Filed: January 7, 2019\n ____________\n\nBefore SMITH, Chief Judge, LOKEN and GRUENDER, Circuit Judges.\n ____________\n\nLOKEN, Circuit Judge.\n\n Charles Eagle Pipe pleaded guilty to domestic assault by an habitual offender\nin violation of 18 U.S.C. § 117. At sentencing, the district court1 determined that\n\n\n 1\n The Honorable Charles B. Kornmann, United States District Judge for the\nDistrict of South Dakota\n\fEagle Pipe’s advisory guidelines range was 30 to 37 months imprisonment. The court\ndeparted upward because Eagle Pipe’s criminal history category substantially under-\nrepresented the seriousness of his criminal history, see USSG § 4A1.3(a)(1), and\nimposed a forty five month sentence, a one month downward variance from the\nrevised guidelines range. Eagle Pipe appeals the sentence, asserting that the court\ncommitted procedural and substantive error. We conclude the contentions are\nwithout merit and therefore affirm.\n\n Eagle Pipe’s Presentence Investigation Report (PSR) assigned one criminal\nhistory point for a single qualifying adult conviction, placing him in Criminal History\nCategory I. The “Other Criminal Conduct” section listed sixty-nine entries totaling\none hundred prior convictions in the Standing Rock Sioux Tribal Court. Many were\nconvictions for domestic assault of Eagle Pipe’s wife, the victim of the domestic\nassault offense of conviction. Tribal court convictions are not included in calculating\na defendant’s Criminal History Category. See USSG § 4A1.2(I). Accordingly, the\nPSR identified § 4A1.3 as potentially warranting a departure, explaining:\n\n In this case, the defendant is in Criminal History Category I: however,\n he has a significant tribal criminal history that was not accounted for in\n the determination of the defendant’s Criminal History Category. Had\n the defendant’s tribal court record been in state or federal court, it would\n have resulted in 16 criminal history points, placing him in Criminal\n History Category VI.\n\nEagle Pipe filed no objections to the PSR.\n\n Prior to sentencing, the district court issued a memorandum to counsel noting\na possible upward departure. The court explained:\n\n The criminal history category is I. If all tribal court convictions\n were counted, the category would be VI. He has 101 tribal court\n\n -2-\n\f convictions, many for violence. He has nine pending charges in tribal\n court. In the 22 + years I have been on the bench, I do not recall anyone\n with that number of tribal court convictions. He has convictions for\n assaulting the same victim as the present victim seven previous times.\n It appears that he has learned nothing from the sentences imposed\n previously.\n\n At the sentencing hearing, defense counsel acknowledged that Eagle Pipe’s\nvery lengthy criminal history “pushes the sentence up a little bit,” but noted that Eagle\nPipe had served 365 days in tribal jail for the offense of conviction and urged the\ncourt to impose a sentence within the 30 to 37 month guidelines range. The district\ncourt noted that, in addition to his prior convictions, Eagle Pipe “has family violence,\nsimple assault, disorderly conduct, criminal mischief, domestic violence . . . and\ncriminal contempt [charges], all pending in Standing Rock Sioux Tribal Court.”\n\n After lengthy discussion with counsel, the district court found “that an upward\ndeparture is appropriate here based on the inadequacy of the Criminal History\nCategory of the Defendant. He is about as far away from a Criminal History Category\nof I as you could get.” Noting that Eagle Pipe’s tribal court convictions, if they\ncounted, would place him in Criminal History Category VI, the court ruled:\n\n I find that his Criminal History Category is a IV. That’s an\n upward departure. A criminal History Category of II is not adequate,\n nor is a Criminal History Category of III adequate, based upon one after\n another of these acts of violence.\n\nThe court found that Eagle Pipe’s revised advisory guidelines range was 46 to 57\nmonths imprisonment, credited the twelve months he served in tribal custody “on\ncharges that are relevant conduct,” and imposed a “net sentence” of forty five months.\n\n\n\n\n -3-\n\f On appeal, Eagle Pipe argues the district court committed procedural error\nbecause it failed to adequately explain why it rejected Criminal History Categories\nI, II, and III and failed to compare Eagle Pipe’s criminal history with other defendants\nin Category IV. Eagle Pipe did not object to the PSR’s determination that his tribal\ncourt convictions would place him in Category VI if they counted. He did not object\nwhen the district court recited that determination in giving advance notice of a\npossible upward departure and again at the start of the sentencing hearing. He did not\nobject or request additional explanation when the district court explicitly stated that\nCategories II and III were not adequate because of his many acts of violence. This\nargument was waived in the district court. See United States v. Maxwell, 778 F.3d\n719, 734 (8th Cir.), cert. denied, 135 S. Ct. 2827 (2015).\n\n Even if we reviewed this issue for plain error, there was none. The Guidelines\nexpressly state that an upward departure may be based on “[p]rior sentence(s) not\nused in computing the criminal history category,” including “tribal offenses.” USSG\n§ 4A1.3(a)(2)(A); see United States v. Shillingstad, 632 F.3d 1031, 1037 (8th Cir.\n2011). A district court departing upwards under § 4A1.3(a)(1) need not\n“mechanically discuss[ ] each criminal history category it rejects en route to the\ncategory that it selects”; it need only provide “sufficient indicia of why the\nintermediary categories are inappropriate.” United States v. Azure, 536 F.3d 922,\n931-32 (8th Cir. 2008) (quotation omitted).\n\n Here, the PSR and the district court assigned hypothetical criminal history\npoints to Eagle Pipe’s tribal convictions, which placed him in Criminal History\nCategory VI, the highest category. The court specifically stated that it had considered\neach intermediary criminal history category before selecting Category IV. This\nprocess necessarily “use[d], as a reference, the criminal history category applicable\nto defendants whose criminal history or likelihood to recidivate most closely\nresembles that of the defendant’s.” USSG § 4A1.3(a)(4)(A); see United States v.\nAzure, 596 F.3d 449, 454-55 (8th Cir.), cert. denied, 562 U.S. 906 (2010). As in\n\n -4-\n\fShillingstad, we conclude the district court “sufficiently explained that its decision\nwas based on [Eagle Pipe’s] extensive criminal record.” 632 F.3d at 1038.\n\n Eagle Pipe further argues that the district court committed plain procedural\nerror by “selecting a sentence based on clearly erroneous facts,” namely, the failure\nto make a finding resolving some confusion in the record whether Eagle Pipe has 69,\n100, or 101 prior tribal convictions, and the district court’s references to the\nprevalence of domestic violence on the Standing Rock Sioux reservation. While\nprocedural error includes “selecting a sentence based on clearly erroneous facts,”\nUnited States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc), this\ncontention is frivolous. Whether Eagle Pipe has 69 or 101 prior tribal convictions\nobviously did not affect the district court’s finding that he “is about as far away from\na Criminal History Category of I as you could get.”\n\n Eagle Pipe did not challenge the court’s comments lamenting the prevalence\nof domestic violence on the Standing Rock reservation and surmising that Eagle Pipe\nmay have committed other acts of domestic violence because such crimes often go\nunreported. “As a consequence, the district court had no opportunity to clarify its\ncomments or to correct any potential error in the first instance. Nor was the district\ncourt prompted to explain whether the comments had any effect on the ultimate\ndisposition of the case.” United States v. M.R.M., 513 F.3d 866, 870 (8th Cir.), cert.\ndenied, 555 U.S. 871 (2008). Accordingly, there was no error, much less plain error.\nThe record does not support a conclusion that these remarks were a “principal basis”\nfor the court’s choice of sentence. United States v. Stokes, 750 F.3d 767, 772 (8th\nCir. 2014); see United States v. Gant, 663 F.3d 1023, 1030 (8th Cir. 2011).\n\n Finally, Eagle Pipe argues the district court abused its discretion by imposing\na substantively unreasonable sentence because the court gave substantial weight to\nan improperly determined upward departure and to its comments on domestic\nviolence the record does not support. As we have explained, the court imposed a\n\n -5-\n\fwell-supported, fully explained § 4A1.3 upward departure based on Eagle Pipe’s\nextensive criminal history, and then varied slightly downward from the revised\nadvisory guidelines range. This is not “the unusual case when we reverse a district\ncourt sentence -- whether within, above, or below the applicable Guidelines range --\nas substantively unreasonable.” Feemster, 572 F.3d at 464.\n\n The judgment of the district court is affirmed.\n ______________________________\n\n\n\n\n -6-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4356504/", "author_raw": "LOKEN, Circuit Judge."}]}	SMITH	LOKEN	GRUENDER	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4579251/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff - Appellee v. Charles EAGLE PIPE, Defendant - Appellant\nCourt: U.S. Court of Appeals for the Eighth Circuit\nDate decided: 2019-01-07\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3039\n ___________________________\n\n United States of America\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n v.\n\n Charles Eagle Pipe\n\n lllllllllllllllllllllDefendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the District of South Dakota - Aberdeen\n ____________\n\n Submitted: October 15, 2018\n Filed: January 7, 2019\n ____________\n\nBefore SMITH, Chief Judge, LOKEN and GRUENDER, Circuit Judges.\n ____________\n\nLOKEN, Circuit Judge.\n\n Charles Eagle Pipe pleaded guilty to domestic assault by an habitual offender\nin violation of 18 U.S.C. § 117. At sentencing, the district court1 determined that\n\n\n 1\n The Honorable Charles B. Kornmann, United States District Judge for the\nDistrict of South Dakota\n\fEagle Pipe’s advisory guidelines range was 30 to 37 months imprisonment. The court\ndeparted upward because Eagle Pipe’s criminal history category substantially under-\nrepresented the seriousness of his criminal history, see USSG § 4A1.3(a)(1), and\nimposed a forty five month sentence, a one month downward variance from the\nrevised guidelines range. Eagle Pipe appeals the sentence, asserting that the court\ncommitted procedural and substantive error. We conclude the contentions are\nwithout merit and therefore affirm.\n\n Eagle Pipe’s Presentence Investigation Report (PSR) assigned one criminal\nhistory point for a single qualifying adult conviction, placing him in Criminal History\nCategory I. The “Other Criminal Conduct” section listed sixty-nine entries totaling\none hundred prior convictions in the Standing Rock Sioux Tribal Court. Many were\nconvictions for domestic assault of Eagle Pipe’s wife, the victim of the domestic\nassault offense of conviction. Tribal court convictions are not included in calculating\na defendant’s Criminal History Category. See USSG § 4A1.2(I). Accordingly, the\nPSR identified § 4A1.3 as potentially warranting a departure, explaining:\n\n In this case, the defendant is in Criminal History Category I: however,\n he has a significant tribal criminal history that was not accounted for in\n the determination of the defendant’s Criminal History Category. Had\n the defendant’s tribal court record been in state or federal court, it would\n have resulted in 16 criminal history points, placing him in Criminal\n History Category VI.\n\nEagle Pipe filed no objections to the PSR.\n\n Prior to sentencing, the district court issued a memorandum to counsel noting\na possible upward departure. The court explained:\n\n The criminal history category is I. If all tribal court convictions\n were counted, the category would be VI. He has 101 tribal court\n\n -2-\n\f convictions, many for violence. He has nine pending charges in tribal\n court. In the 22 + years I have been on the bench, I do not recall anyone\n with that number of tribal court convictions. He has convictions for\n assaulting the same victim as the present victim seven previous times.\n It appears that he has learned nothing from the sentences imposed\n previously.\n\n At the sentencing hearing, defense counsel acknowledged that Eagle Pipe’s\nvery lengthy criminal history “pushes the sentence up a little bit,” but noted that Eagle\nPipe had served 365 days in tribal jail for the offense of conviction and urged the\ncourt to impose a sentence within the 30 to 37 month guidelines range. The district\ncourt noted that, in addition to his prior convictions, Eagle Pipe “has family violence,\nsimple assault, disorderly conduct, criminal mischief, domestic violence . . . and\ncriminal contempt [charges], all pending in Standing Rock Sioux Tribal Court.”\n\n After lengthy discussion with counsel, the district court found “that an upward\ndeparture is appropriate here based on the inadequacy of the Criminal History\nCategory of the Defendant. He is about as far away from a Criminal History Category\nof I as you could get.” Noting that Eagle Pipe’s tribal court convictions, if they\ncounted, would place him in Criminal History Category VI, the court ruled:\n\n I find that his Criminal History Category is a IV. That’s an\n upward departure. A criminal History Category of II is not adequate,\n nor is a Criminal History Category of III adequate, based upon one after\n another of these acts of violence.\n\nThe court found that Eagle Pipe’s revised advisory guidelines range was 46 to 57\nmonths imprisonment, credited the twelve months he served in tribal custody “on\ncharges that are relevant conduct,” and imposed a “net sentence” of forty five months.\n\n\n\n\n -3-\n\f On appeal, Eagle Pipe argues the district court committed procedural error\nbecause it failed to adequately explain why it rejected Criminal History Categories\nI, II, and III and failed to compare Eagle Pipe’s criminal history with other defendants\nin Category IV. Eagle Pipe did not object to the PSR’s determination that his tribal\ncourt convictions would place him in Category VI if they counted. He did not object\nwhen the district court recited that determination in giving advance notice of a\npossible upward departure and again at the start of the sentencing hearing. He did not\nobject or request additional explanation when the district court explicitly stated that\nCategories II and III were not adequate because of his many acts of violence. This\nargument was waived in the district court. See United States v. Maxwell, 778 F.3d\n719, 734 (8th Cir.), cert. denied, 135 S. Ct. 2827 (2015).\n\n Even if we reviewed this issue for plain error, there was none. The Guidelines\nexpressly state that an upward departure may be based on “[p]rior sentence(s) not\nused in computing the criminal history category,” including “tribal offenses.” USSG\n§ 4A1.3(a)(2)(A); see United States v. Shillingstad, 632 F.3d 1031, 1037 (8th Cir.\n2011). A district court departing upwards under § 4A1.3(a)(1) need not\n“mechanically discuss[ ] each criminal history category it rejects en route to the\ncategory that it selects”; it need only provide “sufficient indicia of why the\nintermediary categories are inappropriate.” United States v. Azure, 536 F.3d 922,\n931-32 (8th Cir. 2008) (quotation omitted).\n\n Here, the PSR and the district court assigned hypothetical criminal history\npoints to Eagle Pipe’s tribal convictions, which placed him in Criminal History\nCategory VI, the highest category. The court specifically stated that it had considered\neach intermediary criminal history category before selecting Category IV. This\nprocess necessarily “use[d], as a reference, the criminal history category applicable\nto defendants whose criminal history or likelihood to recidivate most closely\nresembles that of the defendant’s.” USSG § 4A1.3(a)(4)(A); see United States v.\nAzure, 596 F.3d 449, 454-55 (8th Cir.), cert. denied, 562 U.S. 906 (2010). As in\n\n -4-\n\fShillingstad, we conclude the district court “sufficiently explained that its decision\nwas based on [Eagle Pipe’s] extensive criminal record.” 632 F.3d at 1038.\n\n Eagle Pipe further argues that the district court committed plain procedural\nerror by “selecting a sentence based on clearly erroneous facts,” namely, the failure\nto make a finding resolving some confusion in the record whether Eagle Pipe has 69,\n100, or 101 prior tribal convictions, and the district court’s references to the\nprevalence of domestic violence on the Standing Rock Sioux reservation. While\nprocedural error includes “selecting a sentence based on clearly erroneous facts,”\nUnited States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc), this\ncontention is frivolous. Whether Eagle Pipe has 69 or 101 prior tribal convictions\nobviously did not affect the district court’s finding that he “is about as far away from\na Criminal History Category of I as you could get.”\n\n Eagle Pipe did not challenge the court’s comments lamenting the prevalence\nof domestic violence on the Standing Rock reservation and surmising that Eagle Pipe\nmay have committed other acts of domestic violence because such crimes often go\nunreported. “As a consequence, the district court had no opportunity to clarify its\ncomments or to correct any potential error in the first instance. Nor was the district\ncourt prompted to explain whether the comments had any effect on the ultimate\ndisposition of the case.” United States v. M.R.M., 513 F.3d 866, 870 (8th Cir.), cert.\ndenied, 555 U.S. 871 (2008). Accordingly, there was no error, much less plain error.\nThe record does not support a conclusion that these remarks were a “principal basis”\nfor the court’s choice of sentence. United States v. Stokes, 750 F.3d 767, 772 (8th\nCir. 2014); see United States v. Gant, 663 F.3d 1023, 1030 (8th Cir. 2011).\n\n Finally, Eagle Pipe argues the district court abused its discretion by imposing\na substantively unreasonable sentence because the court gave substantial weight to\nan improperly determined upward departure and to its comments on domestic\nviolence the record does not support. As we have explained, the court imposed a\n\n -5-\n\fwell-supported, fully explained § 4A1.3 upward departure based on Eagle Pipe’s\nextensive criminal history, and then varied slightly downward from the revised\nadvisory guidelines range. This is not “the unusual case when we reverse a district\ncourt sentence -- whether within, above, or below the applicable Guidelines range --\nas substantively unreasonable.” Feemster, 572 F.3d at 464.\n\n The judgment of the district court is affirmed.\n ______________________________\n\n\n\n\n -6-\n[END_CASE]", "role": "user" } ]
4,579,593	UNITED STATES of America, Plaintiff - Appellee v. George PATINO, Also Known as Giorgio Paticciano Patino, Defendant - Appellant	United States v. George Patino	2019-01-08	17-3199	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Colloton, Gruender, Grasz", "parties": "", "opinions": [{"author": "GRUENDER, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3199\n ___________________________\n\n United States of America\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n v.\n\n George Patino, also known as Giorgio Paticciano Patino\n\n lllllllllllllllllllllDefendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the Eastern District of Missouri - St. Louis\n ____________\n\n Submitted: September 28, 2018\n Filed: January 8, 2019\n ____________\n\nBefore COLLOTON, GRUENDER, and GRASZ, Circuit Judges.\n ____________\n\nGRUENDER, Circuit Judge.\n\n George Patino appeals after the district court1 admitted evidence of a 1998\nconviction at trial and sentenced him to 40 months’ imprisonment and 3 years’\nsupervised release following his conviction on three counts relating to a conspiracy\n\n 1\n The Honorable Henry E. Autrey, United States District Judge for the Eastern\nDistrict of Missouri.\n\fto distribute human growth hormone (“HGH”) for unauthorized purposes and to\nsmuggle HGH into the United States. We affirm.\n\n I.\n\n Patino operated a clinic and wholesale drug distribution business in Mexico that\nsold HGH to purchasers in the United States. He obtained HGH from Mexico and\nAsia and shipped it into the United States via mailed packages. He operated several\nEnglish-language websites advertising HGH for sale, marketing himself as “an\naccredited Physician and Surgeon” and a “leader in the field of Human Growth\nHormone Therapy” though he did not have a medical license from any state. Between\nApril 2014 and June 2015, Patino sent more than ninety-five HGH packages to the\nMen’s Medical Institute (“MMI”), a medical clinic in St. Louis County, Missouri. In\nexchange, Patino received a total of $67,720. Patino shipped HGH to other addressees\nin the United States through December 2015.\n\n In February 2016, a grand jury indicted Patino on three counts: 1) conspiracy\nto distribute or possess with intent to distribute HGH in violation of 21 U.S.C.\n§ 333(e)(1) and 18 U.S.C. §§ 2 & 371; 2) distribution or possession with intent to\ndistribute HGH in violation of 21 U.S.C. § 333(e)(1) and 18 U.S.C. § 2; and 3)\nsmuggling goods into the United States in violation of 18 U.S.C. §§ 2 & 545. A jury\nconvicted Patino on all three counts.\n\n Among other evidence at trial, the district court admitted the fact of Patino’s\n1998 conviction for possession of HGH with intent to distribute as well as statements\nPatino made at the time of his arrest for that crime to a special agent of the Food and\nDrug Administration’s (“FDA”) Office of Criminal Investigations. In particular,\nPatino stated that he was a medical doctor in Mexico but not the United States, that\nhe was distributing HGH to medical doctors, and that he was aware that it was illegal\nto bring Mexican HGH into the United States.\n\n -2-\n\f After the guilty verdict, the United States Probation Office prepared a\npresentence investigation report (“PSR”), which concluded that the offense involved\nsophisticated means. See United States Sentencing Guidelines (“U.S.S.G.”)\n§ 2T3.1(b)(1). This resulted in an advisory sentencing guidelines range of 21 to 27\nmonths. The Government moved for a sentence above the guidelines range, and the\ndistrict court sentenced Patino to 40 months’ imprisonment.\n\n Patino now appeals the admission at trial of his 1998 conviction pursuant to\nFed. R. Evid. 404(b), the application of the sophisticated means enhancement at\nsentencing, and the district court’s alleged failure properly to determine or explain its\nrationale for the upward departure for understated criminal history at sentencing.\n\n\n\n II.\n\n A.\n\n Before trial, the Government timely filed notice under Fed. R. Evid. 404(b) that\nit planned to admit evidence of Patino’s 1998 conviction for knowingly possessing\nHGH with intent to distribute for unauthorized use by humans. The Government\nargued that this conviction and Patino’s statements to the FDA were relevant to prove\nPatino’s intent, knowledge, and absence of mistake in joining the conspiracy to\ndistribute HGH. Patino objected to the admission of the conviction based on its age\nand irrelevance and argued that it was more unfairly prejudicial than probative. The\ndistrict court overruled Patino’s objection, and the Government presented Patino’s\nconviction and statements to the FDA during trial.\n\n “Rule 404(b) prohibits the admission of other bad acts that are offered to prove\nthe character of a person in order to show action in conformity therewith.” United\nStates v. Hill, 638 F.3d 589, 592 (8th Cir. 2011) (internal quotations omitted).\n\n -3-\n\fHowever, prior bad act evidence is admissible when introduced to show knowledge\nor intent. United States v. Turner, 583 F.3d 1062, 1065 (8th Cir. 2009). The\n“evidence must be (1) relevant to a material issue; (2) similar in kind and not overly\nremote in time to the crime charged; (3) supported by sufficient evidence; and (4)\nhigher in probative value than prejudicial effect.” United States v. Gant, 721 F.3d\n505, 509 (8th Cir. 2013). “This court reviews a district court’s decision to admit\nevidence under Federal Rule of Evidence 404(b) for abuse of discretion and reverse[s]\nonly when such evidence clearly had no bearing on the case and was introduced solely\nto prove the defendant’s propensity to commit criminal acts.” United States v.\nAldridge, 664 F.3d 705, 713 (8th Cir. 2011) (alteration in original) (internal quotation\nmarks omitted).\n\n Patino argues on appeal that his 1998 conviction was irrelevant and too remote\nand that its prejudicial effect outweighed any probative value. We conclude that the\nadmission of Patino’s 1998 conviction was not an abuse of discretion. It was used to\nprove intent and knowledge and was well supported by evidence. Because Patino\npleaded not guilty to the charged offenses and contested their mens rea elements,\nevidence of his prior conviction for distributing HGH was relevant to his intent and\nknowledge. See United States v. Logan, 121 F.3d 1172, 1178 (8th Cir. 1997) (finding\nthat “evidence of prior possession of drugs . . . is admissible to show such things as\nknowledge and intent of a defendant charged with a crime in which intent to distribute\ndrugs is an element”). The district court gave two limiting instructions, mitigating any\npotential prejudicial effect. See United States v. Horton, 756 F.3d 569, 580 (8th Cir.\n2014).\n\n Also, the Government successfully demonstrated that Patino’s prior crime was\n“similar in kind and not overly remote in time to the charged crime.” See United\nStates v. Williams, 308 F.3d 833, 837 (8th Cir. 2002). “To determine if evidence is\ntoo remote, the court applies a reasonableness standard and examines the facts and\ncircumstances of each case.” Aldridge, 664 F.3d at 714. Here, Patino was convicted\n\n -4-\n\fin 1998 for conduct that occurred in August 1997, approximately sixteen years prior\nto the offense conduct in the present case. We have been reluctant to uphold the\nintroduction of evidence relating to acts or crimes which occurred more than thirteen\nyears prior to the conduct challenged. See id. But whether a conviction is close in\ntime to the later offense is only “one factor indicating the relevancy of the evidence,”\nUnited States v. Shoffner, 71 F.3d 1429, 1432 (8th Cir. 1995), and “there is no fixed\nperiod within which the prior acts must have occurred,” Aldridge, 664 F.3d at 714.\nWhen, as here, the prior evidence is of conduct “extremely similar to the crime at\nissue, evidence of the act will usually be rendered irrelevant only by an enormous\nlapse of time.” United States v. Thomas, 593 F.3d 752, 758 (8th Cir. 2010) (internal\nquotation omitted). Both in 1997 and 2014, Patino distributed large amounts of\nmisbranded and unapproved HGH from Mexico into the United States. In fact, in\n1998 he was convicted of the same crime charged in Count II of the present case.\nGiven the similarity between both crimes, the 1998 conviction was not so remote in\ntime as to render its admission an abuse of discretion. See United States v. Strong,\n415 F.3d 902, 905 (8th Cir. 2005) (affirming admission of a sixteen-year-old\nconviction); United States v. Hernandez-Guevara, 162 F.3d 863, 873 (5th Cir. 1998)\n(affirming admission of a nearly eighteen-year-old alien smuggling conviction when\nboth cases “involved exactly the same crime”).\n\n B.\n\n Patino also argues that the district court improperly applied the sophisticated-\nmeans enhancement in determining his advisory sentencing guidelines range. See\nU.S.S.G. § 2T3.1(b)(1). At sentencing, Patino objected only to the PSR’s application\nof the sophisticated means enhancement, but he raised no objections to any facts in\nhis PSR. We review de novo whether the district court correctly applied the\nguidelines when it determined that these facts constituted sophisticated means. United\nStates v. Finck, 407 F.3d 908, 913 (8th Cir. 2005).\n\n\n\n -5-\n\f The proper application of the sophisticated-means enhancement for smuggling\nunder U.S.S.G. § 2T3.1(b)(1) is a matter of first impression in this circuit, but the\ndefinition found in the fraud and tax contexts is similar and offers useful guidance\nhere. See United States v. Redman, 887 F.3d 789, 793 (7th Cir. 2018). Sophisticated\nmeans are “especially complex or especially intricate offense conduct pertaining to the\nexecution or concealment of an offense.” U.S.S.G. § 2T3.1(b)(1) cmt. n. 3. Examples\ninclude “hiding assets or transactions, or both, through the use of fictitious entities,\ncorporate shells, or offshore financial accounts.” Id. “The sophisticated-means\nenhancement is proper when the offense conduct, viewed as a whole, was notably\nmore intricate than that of the garden-variety offense.” United States v. Meadows, 866\nF.3d 913, 917 (8th Cir. 2017). Repetitive and coordinated conduct can be subject to\nthe enhancement even if no single step is complicated. United States v. Huston, 744\nF. 3d 589, 592 (8th Cir. 2014).\n\n Here, the unchallenged facts in the PSR and evidence at trial show sophisticated\nmeans. Patino engaged in repetitive and coordinated conduct, shipping more than\nninety-five packages of HGH from Mexico to the United States for approximately\nforty patients over the course of more than a year and a half. See United States v.\nFiorito, 640 F.3d 338, 351 (8th Cir. 2011) (affirming application of the sophisticated-\nmeans enhancement when the basic element of the scheme was simple but “the\nscheme as a whole spanned three years and at least eleven victims”). Patino mass-\nmarketed HGH online by operating several English-language websites. See United\nStates v. Louper-Morris, 672 F.3d 539, 564-65 (8th Cir. 2012) (affirming application\nof the sophisticated-means enhancement to a “vast marketing scheme” using, among\nother things, a website). Patino advertised his specialized medical expertise in his\nmarketing materials and used his medical training in the offense conduct by offering\nadvice on HGH dosages. See United States v. Stafford, 639 F.3d 270, 276 (6th Cir.\n2011) (affirming application of the sophisticated-means enhancement when the\ndefendant “misused his specialized knowledge of the mortgage industry to create and\nsustain [the] conspiracy”). Patino used multiple email addresses, suggesting the\n\n -6-\n\fexistence of several different entities, including help@hgh.com.mx,\ndrgp@doctor.com, clinic@swissmail.com, and sales@rxmedicalwarehouse.com. He\nattempted to hide transactions by using bank transfers rather than a credit card\nprocessor, explaining in an email that due to “heat” from United States’ authorities his\ncredit card processor was no longer accepting transactions for HGH. In addition,\nPatino packaged and shipped HGH in misleading ways. In some cases, he listed the\nsender as an individual rather than identify his business. Neither the labeling of the\npackages nor the customs declarations indicated that the contents contained HGH.\nBecause of Patino’s repetitive and coordinated conduct, his use of specialized medical\nknowledge to create and sustain his smuggling operation, his mass online marketing,\nhis attempts to hide financial transactions from authorities, and his misleading email\naddresses and packaging, the district court properly applied the sophisticated-means\nenhancement.\n\n C.\n\n Patino’s PSR calculated a total offense level of 16 and a criminal history\ncategory of I, resulting in an advisory guidelines range of 21 to 27 months. The\nGovernment filed a motion requesting a sentence above the guidelines range based in\npart upon Patino’s understated criminal history. The district court imposed a sentence\nof 40 months’ imprisonment for each count, to run concurrently. The district court\npointed to Patino’s understated criminal history as one reason for its sentence above\nthe guidelines range. See U.S.S.G. § 4A1.3. Patino argues on appeal that the district\ncourt did not properly determine or explain its rationale for the extent of its upward\ndeparture based on understated criminal history.2\n\n\n 2\n The district court also explained that it was varying under 18 U.S.C.\n§ 3553(a), stating that “the danger that the conduct of the Defendant placed purchasers\nand users of the HGH [in] . . . was significant and shamefully unacceptable.” Patino\ndoes not challenge any variance on appeal, so he is deemed to have waived this issue.\nSee United States v. Rice, 699 F.3d 1043, 1050 (8th Cir. 2012) (“Issues not raised in\n -7-\n\f A district court’s sentence above the advisory guidelines range is reviewed for\nabuse of discretion. United States v. Walking Eagle, 553 F.3d 654, 656-57 (8th Cir.\n2009). Upward departures are warranted if “reliable information indicates that the\ndefendant’s criminal history category substantially under-represents the seriousness\nof the defendant’s criminal history or the likelihood that the defendant will commit\nother crimes.” U.S.S.G. § 4A1.3(a)(1).\n\n The PSR assessed zero criminal history points to Patino, but as the Government\npointed out, he had five uncounted prior convictions, including two for international\ndrug distribution. We conclude that the district court did not abuse its discretion in\nimposing a sentence above the advisory guidelines range and sufficiently explained\nwhy Patino’s understated criminal history justified an upward departure to 40 months.\nSee United States v. Olsen, 716 F.3d 1052, 1056-57 (8th Cir. 2013) (affirming an\nupward departure where the defendant showed a substantial history of general\ndisregard for the law).\n\n III.\n\n For the foregoing reasons, we affirm.\n ______________________________\n\n\n\n\na party’s opening brief are waived . . . .”).\n -8-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4356846/", "author_raw": "GRUENDER, Circuit Judge."}]}	COLLOTON	GRUENDER	GRASZ	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4579593/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff - Appellee v. George PATINO, Also Known as Giorgio Paticciano Patino, Defendant - Appellant\nCourt: U.S. Court of Appeals for the Eighth Circuit\nDate decided: 2019-01-08\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3199\n ___________________________\n\n United States of America\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n v.\n\n George Patino, also known as Giorgio Paticciano Patino\n\n lllllllllllllllllllllDefendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the Eastern District of Missouri - St. Louis\n ____________\n\n Submitted: September 28, 2018\n Filed: January 8, 2019\n ____________\n\nBefore COLLOTON, GRUENDER, and GRASZ, Circuit Judges.\n ____________\n\nGRUENDER, Circuit Judge.\n\n George Patino appeals after the district court1 admitted evidence of a 1998\nconviction at trial and sentenced him to 40 months’ imprisonment and 3 years’\nsupervised release following his conviction on three counts relating to a conspiracy\n\n 1\n The Honorable Henry E. Autrey, United States District Judge for the Eastern\nDistrict of Missouri.\n\fto distribute human growth hormone (“HGH”) for unauthorized purposes and to\nsmuggle HGH into the United States. We affirm.\n\n I.\n\n Patino operated a clinic and wholesale drug distribution business in Mexico that\nsold HGH to purchasers in the United States. He obtained HGH from Mexico and\nAsia and shipped it into the United States via mailed packages. He operated several\nEnglish-language websites advertising HGH for sale, marketing himself as “an\naccredited Physician and Surgeon” and a “leader in the field of Human Growth\nHormone Therapy” though he did not have a medical license from any state. Between\nApril 2014 and June 2015, Patino sent more than ninety-five HGH packages to the\nMen’s Medical Institute (“MMI”), a medical clinic in St. Louis County, Missouri. In\nexchange, Patino received a total of $67,720. Patino shipped HGH to other addressees\nin the United States through December 2015.\n\n In February 2016, a grand jury indicted Patino on three counts: 1) conspiracy\nto distribute or possess with intent to distribute HGH in violation of 21 U.S.C.\n§ 333(e)(1) and 18 U.S.C. §§ 2 & 371; 2) distribution or possession with intent to\ndistribute HGH in violation of 21 U.S.C. § 333(e)(1) and 18 U.S.C. § 2; and 3)\nsmuggling goods into the United States in violation of 18 U.S.C. §§ 2 & 545. A jury\nconvicted Patino on all three counts.\n\n Among other evidence at trial, the district court admitted the fact of Patino’s\n1998 conviction for possession of HGH with intent to distribute as well as statements\nPatino made at the time of his arrest for that crime to a special agent of the Food and\nDrug Administration’s (“FDA”) Office of Criminal Investigations. In particular,\nPatino stated that he was a medical doctor in Mexico but not the United States, that\nhe was distributing HGH to medical doctors, and that he was aware that it was illegal\nto bring Mexican HGH into the United States.\n\n -2-\n\f After the guilty verdict, the United States Probation Office prepared a\npresentence investigation report (“PSR”), which concluded that the offense involved\nsophisticated means. See United States Sentencing Guidelines (“U.S.S.G.”)\n§ 2T3.1(b)(1). This resulted in an advisory sentencing guidelines range of 21 to 27\nmonths. The Government moved for a sentence above the guidelines range, and the\ndistrict court sentenced Patino to 40 months’ imprisonment.\n\n Patino now appeals the admission at trial of his 1998 conviction pursuant to\nFed. R. Evid. 404(b), the application of the sophisticated means enhancement at\nsentencing, and the district court’s alleged failure properly to determine or explain its\nrationale for the upward departure for understated criminal history at sentencing.\n\n\n\n II.\n\n A.\n\n Before trial, the Government timely filed notice under Fed. R. Evid. 404(b) that\nit planned to admit evidence of Patino’s 1998 conviction for knowingly possessing\nHGH with intent to distribute for unauthorized use by humans. The Government\nargued that this conviction and Patino’s statements to the FDA were relevant to prove\nPatino’s intent, knowledge, and absence of mistake in joining the conspiracy to\ndistribute HGH. Patino objected to the admission of the conviction based on its age\nand irrelevance and argued that it was more unfairly prejudicial than probative. The\ndistrict court overruled Patino’s objection, and the Government presented Patino’s\nconviction and statements to the FDA during trial.\n\n “Rule 404(b) prohibits the admission of other bad acts that are offered to prove\nthe character of a person in order to show action in conformity therewith.” United\nStates v. Hill, 638 F.3d 589, 592 (8th Cir. 2011) (internal quotations omitted).\n\n -3-\n\fHowever, prior bad act evidence is admissible when introduced to show knowledge\nor intent. United States v. Turner, 583 F.3d 1062, 1065 (8th Cir. 2009). The\n“evidence must be (1) relevant to a material issue; (2) similar in kind and not overly\nremote in time to the crime charged; (3) supported by sufficient evidence; and (4)\nhigher in probative value than prejudicial effect.” United States v. Gant, 721 F.3d\n505, 509 (8th Cir. 2013). “This court reviews a district court’s decision to admit\nevidence under Federal Rule of Evidence 404(b) for abuse of discretion and reverse[s]\nonly when such evidence clearly had no bearing on the case and was introduced solely\nto prove the defendant’s propensity to commit criminal acts.” United States v.\nAldridge, 664 F.3d 705, 713 (8th Cir. 2011) (alteration in original) (internal quotation\nmarks omitted).\n\n Patino argues on appeal that his 1998 conviction was irrelevant and too remote\nand that its prejudicial effect outweighed any probative value. We conclude that the\nadmission of Patino’s 1998 conviction was not an abuse of discretion. It was used to\nprove intent and knowledge and was well supported by evidence. Because Patino\npleaded not guilty to the charged offenses and contested their mens rea elements,\nevidence of his prior conviction for distributing HGH was relevant to his intent and\nknowledge. See United States v. Logan, 121 F.3d 1172, 1178 (8th Cir. 1997) (finding\nthat “evidence of prior possession of drugs . . . is admissible to show such things as\nknowledge and intent of a defendant charged with a crime in which intent to distribute\ndrugs is an element”). The district court gave two limiting instructions, mitigating any\npotential prejudicial effect. See United States v. Horton, 756 F.3d 569, 580 (8th Cir.\n2014).\n\n Also, the Government successfully demonstrated that Patino’s prior crime was\n“similar in kind and not overly remote in time to the charged crime.” See United\nStates v. Williams, 308 F.3d 833, 837 (8th Cir. 2002). “To determine if evidence is\ntoo remote, the court applies a reasonableness standard and examines the facts and\ncircumstances of each case.” Aldridge, 664 F.3d at 714. Here, Patino was convicted\n\n -4-\n\fin 1998 for conduct that occurred in August 1997, approximately sixteen years prior\nto the offense conduct in the present case. We have been reluctant to uphold the\nintroduction of evidence relating to acts or crimes which occurred more than thirteen\nyears prior to the conduct challenged. See id. But whether a conviction is close in\ntime to the later offense is only “one factor indicating the relevancy of the evidence,”\nUnited States v. Shoffner, 71 F.3d 1429, 1432 (8th Cir. 1995), and “there is no fixed\nperiod within which the prior acts must have occurred,” Aldridge, 664 F.3d at 714.\nWhen, as here, the prior evidence is of conduct “extremely similar to the crime at\nissue, evidence of the act will usually be rendered irrelevant only by an enormous\nlapse of time.” United States v. Thomas, 593 F.3d 752, 758 (8th Cir. 2010) (internal\nquotation omitted). Both in 1997 and 2014, Patino distributed large amounts of\nmisbranded and unapproved HGH from Mexico into the United States. In fact, in\n1998 he was convicted of the same crime charged in Count II of the present case.\nGiven the similarity between both crimes, the 1998 conviction was not so remote in\ntime as to render its admission an abuse of discretion. See United States v. Strong,\n415 F.3d 902, 905 (8th Cir. 2005) (affirming admission of a sixteen-year-old\nconviction); United States v. Hernandez-Guevara, 162 F.3d 863, 873 (5th Cir. 1998)\n(affirming admission of a nearly eighteen-year-old alien smuggling conviction when\nboth cases “involved exactly the same crime”).\n\n B.\n\n Patino also argues that the district court improperly applied the sophisticated-\nmeans enhancement in determining his advisory sentencing guidelines range. See\nU.S.S.G. § 2T3.1(b)(1). At sentencing, Patino objected only to the PSR’s application\nof the sophisticated means enhancement, but he raised no objections to any facts in\nhis PSR. We review de novo whether the district court correctly applied the\nguidelines when it determined that these facts constituted sophisticated means. United\nStates v. Finck, 407 F.3d 908, 913 (8th Cir. 2005).\n\n\n\n -5-\n\f The proper application of the sophisticated-means enhancement for smuggling\nunder U.S.S.G. § 2T3.1(b)(1) is a matter of first impression in this circuit, but the\ndefinition found in the fraud and tax contexts is similar and offers useful guidance\nhere. See United States v. Redman, 887 F.3d 789, 793 (7th Cir. 2018). Sophisticated\nmeans are “especially complex or especially intricate offense conduct pertaining to the\nexecution or concealment of an offense.” U.S.S.G. § 2T3.1(b)(1) cmt. n. 3. Examples\ninclude “hiding assets or transactions, or both, through the use of fictitious entities,\ncorporate shells, or offshore financial accounts.” Id. “The sophisticated-means\nenhancement is proper when the offense conduct, viewed as a whole, was notably\nmore intricate than that of the garden-variety offense.” United States v. Meadows, 866\nF.3d 913, 917 (8th Cir. 2017). Repetitive and coordinated conduct can be subject to\nthe enhancement even if no single step is complicated. United States v. Huston, 744\nF. 3d 589, 592 (8th Cir. 2014).\n\n Here, the unchallenged facts in the PSR and evidence at trial show sophisticated\nmeans. Patino engaged in repetitive and coordinated conduct, shipping more than\nninety-five packages of HGH from Mexico to the United States for approximately\nforty patients over the course of more than a year and a half. See United States v.\nFiorito, 640 F.3d 338, 351 (8th Cir. 2011) (affirming application of the sophisticated-\nmeans enhancement when the basic element of the scheme was simple but “the\nscheme as a whole spanned three years and at least eleven victims”). Patino mass-\nmarketed HGH online by operating several English-language websites. See United\nStates v. Louper-Morris, 672 F.3d 539, 564-65 (8th Cir. 2012) (affirming application\nof the sophisticated-means enhancement to a “vast marketing scheme” using, among\nother things, a website). Patino advertised his specialized medical expertise in his\nmarketing materials and used his medical training in the offense conduct by offering\nadvice on HGH dosages. See United States v. Stafford, 639 F.3d 270, 276 (6th Cir.\n2011) (affirming application of the sophisticated-means enhancement when the\ndefendant “misused his specialized knowledge of the mortgage industry to create and\nsustain [the] conspiracy”). Patino used multiple email addresses, suggesting the\n\n -6-\n\fexistence of several different entities, including help@hgh.com.mx,\ndrgp@doctor.com, clinic@swissmail.com, and sales@rxmedicalwarehouse.com. He\nattempted to hide transactions by using bank transfers rather than a credit card\nprocessor, explaining in an email that due to “heat” from United States’ authorities his\ncredit card processor was no longer accepting transactions for HGH. In addition,\nPatino packaged and shipped HGH in misleading ways. In some cases, he listed the\nsender as an individual rather than identify his business. Neither the labeling of the\npackages nor the customs declarations indicated that the contents contained HGH.\nBecause of Patino’s repetitive and coordinated conduct, his use of specialized medical\nknowledge to create and sustain his smuggling operation, his mass online marketing,\nhis attempts to hide financial transactions from authorities, and his misleading email\naddresses and packaging, the district court properly applied the sophisticated-means\nenhancement.\n\n C.\n\n Patino’s PSR calculated a total offense level of 16 and a criminal history\ncategory of I, resulting in an advisory guidelines range of 21 to 27 months. The\nGovernment filed a motion requesting a sentence above the guidelines range based in\npart upon Patino’s understated criminal history. The district court imposed a sentence\nof 40 months’ imprisonment for each count, to run concurrently. The district court\npointed to Patino’s understated criminal history as one reason for its sentence above\nthe guidelines range. See U.S.S.G. § 4A1.3. Patino argues on appeal that the district\ncourt did not properly determine or explain its rationale for the extent of its upward\ndeparture based on understated criminal history.2\n\n\n 2\n The district court also explained that it was varying under 18 U.S.C.\n§ 3553(a), stating that “the danger that the conduct of the Defendant placed purchasers\nand users of the HGH [in] . . . was significant and shamefully unacceptable.” Patino\ndoes not challenge any variance on appeal, so he is deemed to have waived this issue.\nSee United States v. Rice, 699 F.3d 1043, 1050 (8th Cir. 2012) (“Issues not raised in\n -7-\n\f A district court’s sentence above the advisory guidelines range is reviewed for\nabuse of discretion. United States v. Walking Eagle, 553 F.3d 654, 656-57 (8th Cir.\n2009). Upward departures are warranted if “reliable information indicates that the\ndefendant’s criminal history category substantially under-represents the seriousness\nof the defendant’s criminal history or the likelihood that the defendant will commit\nother crimes.” U.S.S.G. § 4A1.3(a)(1).\n\n The PSR assessed zero criminal history points to Patino, but as the Government\npointed out, he had five uncounted prior convictions, including two for international\ndrug distribution. We conclude that the district court did not abuse its discretion in\nimposing a sentence above the advisory guidelines range and sufficiently explained\nwhy Patino’s understated criminal history justified an upward departure to 40 months.\nSee United States v. Olsen, 716 F.3d 1052, 1056-57 (8th Cir. 2013) (affirming an\nupward departure where the defendant showed a substantial history of general\ndisregard for the law).\n\n III.\n\n For the foregoing reasons, we affirm.\n ______________________________\n\n\n\n\na party’s opening brief are waived . . . .”).\n -8-\n[END_CASE]", "role": "user" } ]
4,579,595	SPV-LS, LLC, Plaintiff-Appellee v. TRANSAMERICA LIFE INSURANCE COMPANY, Defendant Nachman Bergman, as Trustee of the N Bergman Insurance Trust Dated December 18, 2006; Malka Silberman, as Successor Trustee of the N Bergman Insurance Trust Dated December 18, 2006; Life Trading Trust, Dated August 8, 2007; T-Leg, LLC, Also Known as TLEG LLC ; Financial Life Services, LLC; SPV II LLC, Third Party Defendants the Representative of the Estate of Nancy Bergman, Third Party Defendant-Appellant SPV-LS, LLC, Plaintiff-Appellant v. Transamerica Life Insurance Company, Defendant Nachman Bergman, as Trustee of the N Bergman Insurance Trust Dated December 18, 2006; Malka Silberman, as Successor Trustee of the N Bergman Insurance Trust Dated December 18, 2006; Life Trading Trust, Dated August 8, 2007; T-Leg, LLC, Also Known as TLEG LLC ; Financial Life Services, LLC; SPV II LLC, Third Party Defendants the Representative of the Estate of Nancy Bergman, Third Party Defendant-Appellee	SPV-LS, LLC v. The Estate of Nancy Bergman	2019-01-08	17-3177; 17-3179	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Shepherd, Kelly, Stras", "parties": "", "opinions": [{"author": "SHEPHERD, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3177\n ___________________________\n\n SPV-LS, LLC\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n v.\n\n Transamerica Life Insurance Company\n\n lllllllllllllllllllllDefendant\n\nNachman Bergman, as Trustee of The N Bergman Insurance Trust dated December\n 18, 2006; Malka Silberman, as Successor Trustee of The N Bergman Insurance\nTrust dated December 18, 2006; Life Trading Trust, dated August 8, 2007; T-Leg,\n LLC, also known as TLEG LLC; Financial Life Services, LLC; SPV II LLC\n\n lllllllllllllllllllllThird Party Defendants\n lllllllllllllllllll\n The Representative of The Estate of Nancy Bergman\n\n lllllllllllllllllllllThird Party Defendant - Appellant\n ___________________________\n\n No. 17-3179\n ___________________________\n\n SPV-LS, LLC\n\n lllllllllllllllllllllPlaintiff - Appellant\n\n v.\n\n Transamerica Life Insurance Company\n\n lllllllllllllllllllllDefendant\n\fNachman Bergman, as Trustee of The N Bergman Insurance Trust dated December\n 18, 2006; Malka Silberman, as Successor Trustee of The N Bergman Insurance\nTrust dated December 18, 2006; Life Trading Trust, dated August 8, 2007; T-Leg,\n LLC, also known as TLEG LLC; Financial Life Services, LLC; SPV II LLC\n\n lllllllllllllllllllllThird Party Defendants\n\n The Representative of The Estate of Nancy Bergman\n\n lllllllllllllllllllllThird Party Defendant - Appellee\n ____________\n\n Appeals from United States District Court\n for the District of South Dakota - Sioux Falls\n ____________\n\n Submitted: October 16, 2018\n Filed: January 8, 2019\n ____________\n\nBefore SHEPHERD, KELLY, and STRAS, Circuit Judges.\n ____________\n\nSHEPHERD, Circuit Judge.\n\n The Estate of Nancy Bergman (the Estate), through its personal representative,\nappeals a district court order denying its motion for reconsideration of an adverse\ngrant of summary judgment. SPV-LS, LLC (SPV) cross-appeals the district court’s\ndenial of 28 U.S.C. § 1927 and Fed. R. Civ. P. 26(g)(3) sanctions against the Estate’s\nattorneys. The district court had jurisdiction under 28 U.S.C. § 1332, and we have\njurisdiction pursuant to 28 U.S.C. § 1291. For the following reasons, we affirm in part\nand reverse in part, remanding for further consideration the denial of sanctions against\nattorney Gerald Kroll.\n\n\n\n -2-\n\f I.\n\n This case concerns a $10 million life insurance policy (the Policy) issued by\nTransamerica Occidental Life Insurance Company (Transamerica) on the life of\noctogenarian Nancy Bergman. While the Estate and SPV differ in their interpretations\nof the motives underlying much of what happened, the basic facts are as follows.\n\n Sometime prior to October 2006, Nancy’s grandson, Nachman Bergman,\napproached her about procuring life insurance as part of an investment scheme.\nNachman explained that 82-year-old Nancy would apply for life insurance, which\nwould be funded by a group of investors led by Jacob Herbst. The investors would\nthen sell all acquired policies on the secondary market after the two-year contestability\nperiod expired, giving Nancy a small share of the profits. Nancy agreed to participate\nand Transamerica issued a $10,000,000 certificate of insurance to her in October\n2006. In December 2006, Nancy executed a trust instrument establishing the N\nBergman Insurance Trust (the Trust) and appointing Nachman as its sole trustee and\nprimary beneficiary. Pursuant to paperwork filed by Nancy and Nachman,\nTransamerica then issued the Policy in March 2007. The Policy certificate designated\nthe Trust as the Policy’s intended owner. The investors provided funds for Policy\npremiums, which were paid through the Trust.\n\n In 2009, Financial Life Services (FLS) contracted with the Trust to purchase the\nPolicy for $1,350,000. FLS is a life settlement provider—a company which purchases\nlife insurance policies for more than the cash surrender value but less than the amount\nof death benefits payable under the policy, then collects the death benefits when the\ninsured individual dies. Shortly after executing the purchase agreement, FLS learned\nthat the Trust had failed to pay $64,500 in Policy premiums. FLS paid these premiums\nto prevent the Policy from lapsing. FLS then learned that Nancy’s life expectancy was\nmaterially longer than represented and that, contrary to the Trust’s representations,\ninvestor funds, not family funds, had paid for the Policy. FLS found this significant\n\n -3-\n\fbecause life insurance policies paid for by and intended to benefit strangers (stranger-\noriginated life insurance policies, or STOLIs), are worth less on the secondary market\nthan policies funded by the insured individual or her family members. This is\nbecause, in the secondary insurance market, STOLIs are widely considered to be\nindicia of fraud.\n\n FLS discovered these facts before paying the Trust for the Policy and therefore\ninvoked a provision of the purchase agreement allowing it to rescind its purchase of\nthe Policy based on fraud in the procurement of the sale contract. It also requested\nreimbursement of the premiums it paid. When its efforts to rescind the transaction\nfailed, FLS instead exercised its contractual right under the purchase agreement to\ntender a reduced purchase price in light of the Trust’s misrepresentations as to\nNancy’s life expectancy and the Policy’s funding source. FLS tendered the\ncontractually-determined alternate purchase price of $610,500, which the Trust\nrejected. FLS filed a breach of contract suit against the Trust in the Eastern District\nof New York, seeking rescission of the purchase agreement and reimbursement of\nadvanced premiums. It continued to pay premiums to prevent the Policy from lapsing.\n\n The New York district court ultimately entered judgment in FLS’s favor for\nover a million dollars, including premium reimbursements, post-judgment interest,\nand attorneys’ fees. Because the Trust admitted it could not pay, the district court\nordered a sale of the Policy—the Trust’s only asset—at auction to satisfy that\njudgment. FLS submitted the winning—and only—bid of $1,194,522 and eventually\ntransferred the Policy to SPV.\n\n Nancy Bergman died on April 6, 2014. SPV submitted a claim for death\nbenefits under the Policy to Transamerica on May 29, 2014. Transamerica refused to\npay SPV’s claim because it received competing claims from Nachman Bergman and\nfrom Jacob Herbst’s wife Malka Silberman, both of whom claimed to be trustee of the\nTrust. Seeking payment of the Policy proceeds, SPV filed a complaint against\n\n -4-\n\fTransamerica for breach of contract in the United States District Court for the District\nof South Dakota.1 In the same action, Transamerica asserted a statutory interpleader\nunder 28 U.S.C. § 1335, deposited the Policy death benefits of $10,000,000 with the\ndistrict court, and asked the court to determine the respective rights of SPV, the Trust,\nand Nancy’s Estate. The Estate then asserted a cross-claim to the Policy proceeds\nunder N.J. Stat. Ann. § 17B:24-1.1, a New Jersey statute that allows the insured’s\nestate to disgorge proceeds from the contractual beneficiary of a STOLI.\n\n SPV moved for summary judgment on the Estate’s cross-claim on two grounds.\nFirst, SPV asserted that, under South Dakota choice-of-law analysis, New York law\ngoverned the case, making the Estate’s statutory claim irrelevant. Second, SPV\nargued that STOLIs were legal in New York at the time the Policy was procured. The\nEstate countered that New Jersey law should apply, that New York law was in accord\nwith New Jersey law, and that the Estate should prevail on public policy grounds.\n\n The district court held that New York law applied. It found that, at the time the\nPolicy was procured, New York allowed STOLIs as long as the policy in question was\ninitially procured by the insured or someone with an insurable interest in the life of\nthe insured and that, under Kramer v. Phoenix Life Insurance Co., 940 N.E.2d 535\n(N.Y. 2010), an insured could procure a policy with the intent to immediately assign\nit to stranger investors. See id. at 551-52. The district court further found, as a matter\nof law, that Nachman Bergman had an insurable interest in his grandmother’s life.\nBased on these facts, the district court granted summary judgment against the Estate\nand dismissed its claims to the Policy proceeds.\n\n The Estate then filed a motion for reconsideration pursuant to Fed. R. Civ. P.\n54(b) and raised a new argument: that Nancy Bergman only acted under nefarious\n\n 1\n SPV filed this action in South Dakota rather than New York because neither\noriginal party is a New York citizen. SPV’s parent company, South Dakota Trust\nCompany LLC, is a citizen of South Dakota and Transamerica is a citizen of Iowa.\n\n -5-\n\finfluence or coercion on the part of the investors. SPV countered that the Estate could\nhave raised this argument at summary judgment and failed to do so, and that the Estate\npresented no new evidence raising a genuine issue of material fact. The district court\nnoted that the Estate had failed to raise this argument previously, but it nevertheless\nheld the Estate’s motion for reconsideration in abeyance and allowed it to conduct\nlimited further discovery. As the discovery deadline neared, the Estate filed a\nsupplemental submission in further support of its motion for reconsideration and\npresented another new argument: judicial estoppel. The Estate contended that SPV\ncould not argue that the Policy was supported by an insurable interest because FLS,\nSPV’s predecessor in interest, sought to rescind its purchase of the Policy based on\nits STOLI status. SPV countered that neither it nor FLS had ever argued the Policy\nwas unsupported by an insurable interest and that all the information and evidence\nupon which the Estate relied was available to it at summary judgment.\n\n The district court ultimately denied the Estate’s motion for reconsideration\nbased on lack of evidence. It found that SPV had never argued the Policy lacked an\ninsurable interest and that all of the testimony from Nancy’s family members and an\nexamining doctor showed that Nancy was competent, strong-willed, and knew what\nshe was doing. It further reiterated that New York law, specifically Kramer,\ncontrolled and that, even if the Policy was a STOLI, such policies were legal in New\nYork when the Policy was issued. SPV then sought sanctions against the Estate’s\nattorneys, Brian Donahoe and Gerald Kroll, claiming that both attorneys had\n“unreasonably and vexatiously multiplied the proceedings” in violation of 28 U.S.C.\n§ 1927 and that Attorney Kroll had submitted a forged discovery document in\nviolation of Fed. R. Civ. P 26(g). The district court declined to impose sanctions.\n\n The Estate now appeals the district court’s denial of its motion for\nreconsideration, and SPV cross-appeals the district court’s denial of sanctions against\nthe Estate’s attorneys. We address each issue in turn.\n\n\n\n -6-\n\f II.\n\n The Estate has changed its position numerous times throughout the course of\nthis litigation. At summary judgment, it argued that New Jersey law, rather than New\nYork law, should apply, making the Policy an invalid STOLI. Alternatively, it argued\nthat, under New Jersey law, it should prevail on public policy grounds. However, the\nEstate has conceded on appeal that New York law applies.\n\n The Estate raised its current arguments for the first time in the district court in\nconnection with its motion for reconsideration, if it raised them at all. We therefore\ntreat its appeal as an appeal from the district court’s denial of that motion. A district\ncourt has wide discretion over whether to grant a motion for reconsideration of a prior\norder, In re Charter Commc’ns, Inc., Sec. Litig., 443 F.3d 987, 993 (8th Cir. 2006),\nand “we will reverse a denial of a motion for reconsideration only for a clear abuse of\ndiscretion.” Paris Limousine of Okla., LLC v. Exec. Coach Builders, Inc., 867 F.3d\n871, 873 (8th Cir. 2017). “An abuse of discretion will only be found if the district\ncourt’s judgment was based on clearly erroneous factual findings or erroneous legal\nconclusions.” Mathenia v. Delo, 99 F.3d 1476, 1480 (8th Cir. 1996). For the reasons\nset forth below, we conclude that the district court did not abuse its discretion in\ndenying the Estate’s motion for reconsideration.\n\n “The scope of the motion for reconsideration is critical in our\ndetermination . . . . A motion for reconsideration is not a vehicle to identify facts or\nlegal arguments that could have been, but were not, raised at the time the relevant\nmotion was pending.” Julianello v. K-V Pharm. Co., 791 F.3d 915, 923 (8th Cir.\n2015). Nor may a motion for reconsideration serve to introduce evidence that the\nmovant could have produced before the district court decided the prior motion. Id. at\n922; see also Hagerman v. Yukon Energy Corp., 839 F.2d 407, 414 (8th Cir. 1988)\n(stating that motions for reconsideration cannot be used to introduce new evidence or\nlegal theories that “could have been adduced during pendency of the summary\n\n -7-\n\fjudgment motion” (quoting Rothwell Cotton Co. v. Rosenthal & Co., 827 F.2d 246,\n251 (7th Cir. 1987))). A district court does not abuse its discretion in denying a\nmotion for reconsideration used for such an “impermissible purpose.” Julianello, 791\nF.3d at 923. This is precisely the situation we find here.\n\n The Estate moved for reconsideration based primarily on a new\nargument—nefarious coercion—and asserted judicial estoppel for the first time in a\nsupplemental filing.2 However, in its June 23, 2016 order holding the Estate’s motion\nfor reconsideration in abeyance, the district court correctly recognized that the Estate\ncould have raised its nefarious coercion argument in response to SPV’s motion for\nsummary judgment, yet it failed to do so. The same can be said for the Estate’s\njudicial estoppel argument, which it had not yet raised when the district court issued\nthe June 23 order. Nevertheless, the district court held the motion for reconsideration\nin abeyance pending further discovery, giving the Estate an opportunity to uncover\nand submit new evidence supporting its claims. Instead, the Estate presented an\nargument to the district court based solely on conjecture and accusations and failed\nto present new evidence which supported its motion. Because the Estate sought to use\nits motion for reconsideration for the impermissible purpose of introducing new\narguments it could have raised earlier, see Hagerman, 839 F.2d at 414 (stating that a\nmotion for reconsideration should not “serve as the occasion to tender new legal\ntheories for the first time” (quoting Rothwell, 827 F.2d at 251)), and because the\n\n\n 2\n The Estate raises several other arguments for the first time before this Court,\ncontending that Nachman Bergman lacked an insurable interest in his grandmother’s\nlife and that the district court should have certified the question of whether an\ninsurable interest existed at procurement of the policy to the New York Court of\nAppeals. As a general rule, a party may not raise an issue for the first time on appeal.\nTrs. of Electricians’ Salary Deferral Plan v. Wright, 688 F.3d 922, 926 (8th Cir.\n2012). We therefore decline to review the district court’s decision based on these\narguments. We note, however, that, even if the Estate had preserved these arguments,\nthe New York Court of Appeals does not accept certified questions from federal\ndistrict courts. See N.Y. Comp. Codes R. & Regs. tit. 22, § 500.27(a).\n\n -8-\n\fEstate then failed to support those arguments with any evidence even after receiving\nadditional time for discovery, we cannot say the district court abused its discretion in\nrefusing to reconsider its summary judgment ruling. See Julianello, 791 F.3d at 922-\n23 (finding no abuse of discretion in the district court’s dismissal of plaintiffs’\ncomplaint and denial of their motion to reconsider the scope of leave to amend that\ncomplaint when all the evidence plaintiffs presented in support of their motion for\nreconsideration was available to them when they opposed the defendant’s motion to\ndismiss).\n\n III.\n\n SPV sought sanctions against the Estate’s attorneys under 28 U.S.C. § 1927 and\nRule 26(g)(3) of the Federal Rules of Civil Procedure. It asserts on appeal that the\ndistrict court improperly failed to impose these sanctions. We affirm the district\ncourt’s denial of § 1927 sanctions against both attorneys and its denial of Rule 26\nsanctions against Attorney Donahoe, but we reverse the district court’s denial of Rule\n26 sanctions against Attorney Kroll and remand that issue for further consideration.\n\n “We review the denial of a motion for sanctions for an abuse of discretion,\naffording the district court substantial deference and finding an abuse of discretion\nonly if the court ‘bases its ruling on an erroneous view of the law or a clearly\nerroneous assessment of the evidence.’” C.H. Robinson Worldwide, Inc. v. Lobrano,\n695 F.3d 758, 763 (8th Cir. 2012) (quoting Monarch Fire Prot. Dist. v. Freedom\nConsulting & Auditing Servs., Inc., 644 F.3d 633, 639 (8th Cir. 2011)).\n\n A.\n\n 28 U.S.C. § 1927 permits courts to impose monetary sanctions on an attorney\nwho “multiplies the proceedings in any case unreasonably and vexatiously.” Courts\nshould construe § 1927 strictly and impose sanctions only “when attorney conduct,\n\n -9-\n\fviewed objectively, manifests either intentional or reckless disregard of the attorney’s\nduties to the court.” Lee v. L.B. Sales, Inc., 177 F.3d 714, 718 (8th Cir. 1999). The\ndistrict court found that any multiplication of proceedings in this case stemmed not\nfrom the attorneys’ conduct but from their clients’ conduct. SPV fails to argue with\nany specificity what the Estate’s attorneys did to warrant § 1927 sanctions and, thus,\ncannot establish that the district court based its ruling on an erroneous view of the law\nor evidence. We therefore find no abuse of discretion in the district court’s denial of\n§ 1927 sanctions.\n\n B.\n\n Fed. R. Civ. P. 26(g)(1) requires attorneys and pro se litigants to certify that\nevery disclosure is “complete and correct at the time it was made” and that every\ndiscovery request, response, and objection is consistent with the Federal Rules of Civil\nProcedure, nonfrivolous, not submitted for an improper purpose, and not unreasonable\nor unduly burdensome. Fed. R. Civ. P. 26(g)(3) imposes “appropriate” sanctions on\nattorneys or parties who violate Rule 26(g)(1). Such sanctions may include monetary\npenalties, such as expenses and attorneys’ fees, Johnson Int’l Co. v. Jackson Nat. Life\nIns. Co., 19 F.3d 431, 438 (8th Cir. 1994), and are particularly appropriate when an\nattorney submits a forged discovery document. See Perkins v. Gen. Motors Corp.,\n965 F.2d 597, 600 n.5 (8th Cir. 1992). Unlike § 1927 sanctions, these sanctions are\nnondiscretionary. Fed. R. Civ. P. 26(g)(3); Perkins, 965 F.2d at 600 n.5; see also\nRojas v. Town of Cicero, 775 F.3d 906, 909 (7th Cir. 2015) (“Rule 26(g)(3) gives the\njudge discretion over the nature of the sanction but not whether to impose one.”);\nChudasama v. Mazda Motor Corp., 123 F.3d 1353, 1372 (11th Cir. 1997) (“The\ndecision whether to impose sanctions under Rule 26(g)(3) is not discretionary.”).\n\n SPV’s key evidence supporting Rule 26(g) sanctions is an allegedly-forged\ndiscovery document and the associated metadata produced by Attorney Kroll. SPV\npresents no evidence that Attorney Donahoe participated in this violation of Rule\n\n -10-\n\f26(g)(1). We therefore decline to find that the district court abused its discretion in\ndenying Rule 26(g) sanctions against Attorney Donahoe.\n\n In response to a discovery request, Attorney Kroll provided SPV with a\nredacted copy of the retainer agreement between himself and the Estate’s personal\nrepresentative. After filing a motion to compel production in a related proceeding\nagainst Attorney Kroll in the United States District Court for the Central District of\nCalifornia, SPV obtained an unredacted draft of the same retainer agreement. This\ndraft showed Attorney Kroll would receive a contingency fee if either the Estate or the\nTrust prevailed in obtaining the death benefits payable under the Policy, supporting\nSPV’s theory that the Estate and Trust were controlled by the same parties in interest.\nWhen SPV produced the unredacted draft to the district court, the Estate claimed that\ndraft was not a correct copy and produced its own unredacted copy of the retainer\nagreement. The Estate’s copy omitted the provision awarding Attorney Kroll a\ncontingency fee if the Trust prevailed.\n\n SPV requested Rule 26(g)(3) sanctions based on document metadata, taken\ndirectly from Attorney Kroll’s computer by his e-discovery vendor. The metadata\nshowed that the retainer agreement produced by the Estate, while purportedly signed\nby the Estate’s personal representative in August 2015, was not created until July 20,\n2016—two days before Attorney Kroll produced the document to the court.\nTherefore, SPV argued, the document was forged. The district court acknowledged\nthat fabricating discovery documents is grounds for sanctions, see SPV-LS, LLC v.\nTransamerica Life Ins. Co., No. CIV 14-4092, 2017 WL 3668765, at *3 (Aug. 23,\n2017), but it denied sanctions against Attorney Kroll. It did so under the mistaken\nbelief that SPV relied on a document examiner’s report to prove forgery, stating that\nSPV should have produced that report. However, SPV never claimed that it relied on\na document examiner’s report; in fact, it indicated that it never consulted a document\nexaminer and relied solely on the document’s metadata. Because the district court\nbased its denial of sanctions on SPV’s failure to introduce a nonexistent report into\n\n -11-\n\fevidence, it clearly conducted an erroneous assessment of the evidence. See, e.g.,\nMDU Res. Grp. v. W.R. Grace & Co., 14 F.3d 1274, 1280 (8th Cir. 1994) (finding the\ndistrict court clearly conducted an erroneous assessment of evidence when it\nmisunderstood the purpose for which the evidence was offered). It therefore abused\nits discretion in denying Rule 26(g) sanctions against Attorney Kroll on this basis.\n\n IV.\n\n The district court’s denial of the Estate’s motion for reconsideration is affirmed.\nIts denial of § 1927 sanctions against Attorneys Donahoe and Kroll and its denial of\nRule 26(g) sanctions against Attorney Donahoe are likewise affirmed. The district\ncourt’s denial of Rule 26(g) sanctions against Attorney Kroll is reversed. The matter\nis remanded to the district court for further proceedings on the motion for Rule 26(g)\nsanctions against Attorney Kroll consistent with this opinion.\n ______________________________\n\n\n\n\n -12-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4356848/", "author_raw": "SHEPHERD, Circuit Judge."}]}	SHEPHERD	KELLY	STRAS	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4579595/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: SPV-LS, LLC, Plaintiff-Appellee v. TRANSAMERICA LIFE INSURANCE COMPANY, Defendant Nachman Bergman, as Trustee of the N Bergman Insurance Trust Dated December 18, 2006; Malka Silberman, as Successor Trustee of the N Bergman Insurance Trust Dated December 18, 2006; Life Trading Trust, Dated August 8, 2007; T-Leg, LLC, Also Known as TLEG LLC ; Financial Life Services, LLC; SPV II LLC, Third Party Defendants the Representative of the Estate of Nancy Bergman, Third Party Defendant-Appellant SPV-LS, LLC, Plaintiff-Appellant v. Transamerica Life Insurance Company, Defendant Nachman Bergman, as Trustee of the N Bergman Insurance Trust Dated December 18, 2006; Malka Silberman, as Successor Trustee of the N Bergman Insurance Trust Dated December 18, 2006; Life Trading Trust, Dated August 8, 2007; T-Leg, LLC, Also Known as TLEG LLC ; Financial Life Services, LLC; SPV II LLC, Third Party Defendants the Representative of the Estate of Nancy Bergman, Third Party Defendant-Appellee\nCourt: U.S. Court of Appeals for the Eighth Circuit\nDate decided: 2019-01-08\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3177\n ___________________________\n\n SPV-LS, LLC\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n v.\n\n Transamerica Life Insurance Company\n\n lllllllllllllllllllllDefendant\n\nNachman Bergman, as Trustee of The N Bergman Insurance Trust dated December\n 18, 2006; Malka Silberman, as Successor Trustee of The N Bergman Insurance\nTrust dated December 18, 2006; Life Trading Trust, dated August 8, 2007; T-Leg,\n LLC, also known as TLEG LLC; Financial Life Services, LLC; SPV II LLC\n\n lllllllllllllllllllllThird Party Defendants\n lllllllllllllllllll\n The Representative of The Estate of Nancy Bergman\n\n lllllllllllllllllllllThird Party Defendant - Appellant\n ___________________________\n\n No. 17-3179\n ___________________________\n\n SPV-LS, LLC\n\n lllllllllllllllllllllPlaintiff - Appellant\n\n v.\n\n Transamerica Life Insurance Company\n\n lllllllllllllllllllllDefendant\n\fNachman Bergman, as Trustee of The N Bergman Insurance Trust dated December\n 18, 2006; Malka Silberman, as Successor Trustee of The N Bergman Insurance\nTrust dated December 18, 2006; Life Trading Trust, dated August 8, 2007; T-Leg,\n LLC, also known as TLEG LLC; Financial Life Services, LLC; SPV II LLC\n\n lllllllllllllllllllllThird Party Defendants\n\n The Representative of The Estate of Nancy Bergman\n\n lllllllllllllllllllllThird Party Defendant - Appellee\n ____________\n\n Appeals from United States District Court\n for the District of South Dakota - Sioux Falls\n ____________\n\n Submitted: October 16, 2018\n Filed: January 8, 2019\n ____________\n\nBefore SHEPHERD, KELLY, and STRAS, Circuit Judges.\n ____________\n\nSHEPHERD, Circuit Judge.\n\n The Estate of Nancy Bergman (the Estate), through its personal representative,\nappeals a district court order denying its motion for reconsideration of an adverse\ngrant of summary judgment. SPV-LS, LLC (SPV) cross-appeals the district court’s\ndenial of 28 U.S.C. § 1927 and Fed. R. Civ. P. 26(g)(3) sanctions against the Estate’s\nattorneys. The district court had jurisdiction under 28 U.S.C. § 1332, and we have\njurisdiction pursuant to 28 U.S.C. § 1291. For the following reasons, we affirm in part\nand reverse in part, remanding for further consideration the denial of sanctions against\nattorney Gerald Kroll.\n\n\n\n -2-\n\f I.\n\n This case concerns a $10 million life insurance policy (the Policy) issued by\nTransamerica Occidental Life Insurance Company (Transamerica) on the life of\noctogenarian Nancy Bergman. While the Estate and SPV differ in their interpretations\nof the motives underlying much of what happened, the basic facts are as follows.\n\n Sometime prior to October 2006, Nancy’s grandson, Nachman Bergman,\napproached her about procuring life insurance as part of an investment scheme.\nNachman explained that 82-year-old Nancy would apply for life insurance, which\nwould be funded by a group of investors led by Jacob Herbst. The investors would\nthen sell all acquired policies on the secondary market after the two-year contestability\nperiod expired, giving Nancy a small share of the profits. Nancy agreed to participate\nand Transamerica issued a $10,000,000 certificate of insurance to her in October\n2006. In December 2006, Nancy executed a trust instrument establishing the N\nBergman Insurance Trust (the Trust) and appointing Nachman as its sole trustee and\nprimary beneficiary. Pursuant to paperwork filed by Nancy and Nachman,\nTransamerica then issued the Policy in March 2007. The Policy certificate designated\nthe Trust as the Policy’s intended owner. The investors provided funds for Policy\npremiums, which were paid through the Trust.\n\n In 2009, Financial Life Services (FLS) contracted with the Trust to purchase the\nPolicy for $1,350,000. FLS is a life settlement provider—a company which purchases\nlife insurance policies for more than the cash surrender value but less than the amount\nof death benefits payable under the policy, then collects the death benefits when the\ninsured individual dies. Shortly after executing the purchase agreement, FLS learned\nthat the Trust had failed to pay $64,500 in Policy premiums. FLS paid these premiums\nto prevent the Policy from lapsing. FLS then learned that Nancy’s life expectancy was\nmaterially longer than represented and that, contrary to the Trust’s representations,\ninvestor funds, not family funds, had paid for the Policy. FLS found this significant\n\n -3-\n\fbecause life insurance policies paid for by and intended to benefit strangers (stranger-\noriginated life insurance policies, or STOLIs), are worth less on the secondary market\nthan policies funded by the insured individual or her family members. This is\nbecause, in the secondary insurance market, STOLIs are widely considered to be\nindicia of fraud.\n\n FLS discovered these facts before paying the Trust for the Policy and therefore\ninvoked a provision of the purchase agreement allowing it to rescind its purchase of\nthe Policy based on fraud in the procurement of the sale contract. It also requested\nreimbursement of the premiums it paid. When its efforts to rescind the transaction\nfailed, FLS instead exercised its contractual right under the purchase agreement to\ntender a reduced purchase price in light of the Trust’s misrepresentations as to\nNancy’s life expectancy and the Policy’s funding source. FLS tendered the\ncontractually-determined alternate purchase price of $610,500, which the Trust\nrejected. FLS filed a breach of contract suit against the Trust in the Eastern District\nof New York, seeking rescission of the purchase agreement and reimbursement of\nadvanced premiums. It continued to pay premiums to prevent the Policy from lapsing.\n\n The New York district court ultimately entered judgment in FLS’s favor for\nover a million dollars, including premium reimbursements, post-judgment interest,\nand attorneys’ fees. Because the Trust admitted it could not pay, the district court\nordered a sale of the Policy—the Trust’s only asset—at auction to satisfy that\njudgment. FLS submitted the winning—and only—bid of $1,194,522 and eventually\ntransferred the Policy to SPV.\n\n Nancy Bergman died on April 6, 2014. SPV submitted a claim for death\nbenefits under the Policy to Transamerica on May 29, 2014. Transamerica refused to\npay SPV’s claim because it received competing claims from Nachman Bergman and\nfrom Jacob Herbst’s wife Malka Silberman, both of whom claimed to be trustee of the\nTrust. Seeking payment of the Policy proceeds, SPV filed a complaint against\n\n -4-\n\fTransamerica for breach of contract in the United States District Court for the District\nof South Dakota.1 In the same action, Transamerica asserted a statutory interpleader\nunder 28 U.S.C. § 1335, deposited the Policy death benefits of $10,000,000 with the\ndistrict court, and asked the court to determine the respective rights of SPV, the Trust,\nand Nancy’s Estate. The Estate then asserted a cross-claim to the Policy proceeds\nunder N.J. Stat. Ann. § 17B:24-1.1, a New Jersey statute that allows the insured’s\nestate to disgorge proceeds from the contractual beneficiary of a STOLI.\n\n SPV moved for summary judgment on the Estate’s cross-claim on two grounds.\nFirst, SPV asserted that, under South Dakota choice-of-law analysis, New York law\ngoverned the case, making the Estate’s statutory claim irrelevant. Second, SPV\nargued that STOLIs were legal in New York at the time the Policy was procured. The\nEstate countered that New Jersey law should apply, that New York law was in accord\nwith New Jersey law, and that the Estate should prevail on public policy grounds.\n\n The district court held that New York law applied. It found that, at the time the\nPolicy was procured, New York allowed STOLIs as long as the policy in question was\ninitially procured by the insured or someone with an insurable interest in the life of\nthe insured and that, under Kramer v. Phoenix Life Insurance Co., 940 N.E.2d 535\n(N.Y. 2010), an insured could procure a policy with the intent to immediately assign\nit to stranger investors. See id. at 551-52. The district court further found, as a matter\nof law, that Nachman Bergman had an insurable interest in his grandmother’s life.\nBased on these facts, the district court granted summary judgment against the Estate\nand dismissed its claims to the Policy proceeds.\n\n The Estate then filed a motion for reconsideration pursuant to Fed. R. Civ. P.\n54(b) and raised a new argument: that Nancy Bergman only acted under nefarious\n\n 1\n SPV filed this action in South Dakota rather than New York because neither\noriginal party is a New York citizen. SPV’s parent company, South Dakota Trust\nCompany LLC, is a citizen of South Dakota and Transamerica is a citizen of Iowa.\n\n -5-\n\finfluence or coercion on the part of the investors. SPV countered that the Estate could\nhave raised this argument at summary judgment and failed to do so, and that the Estate\npresented no new evidence raising a genuine issue of material fact. The district court\nnoted that the Estate had failed to raise this argument previously, but it nevertheless\nheld the Estate’s motion for reconsideration in abeyance and allowed it to conduct\nlimited further discovery. As the discovery deadline neared, the Estate filed a\nsupplemental submission in further support of its motion for reconsideration and\npresented another new argument: judicial estoppel. The Estate contended that SPV\ncould not argue that the Policy was supported by an insurable interest because FLS,\nSPV’s predecessor in interest, sought to rescind its purchase of the Policy based on\nits STOLI status. SPV countered that neither it nor FLS had ever argued the Policy\nwas unsupported by an insurable interest and that all the information and evidence\nupon which the Estate relied was available to it at summary judgment.\n\n The district court ultimately denied the Estate’s motion for reconsideration\nbased on lack of evidence. It found that SPV had never argued the Policy lacked an\ninsurable interest and that all of the testimony from Nancy’s family members and an\nexamining doctor showed that Nancy was competent, strong-willed, and knew what\nshe was doing. It further reiterated that New York law, specifically Kramer,\ncontrolled and that, even if the Policy was a STOLI, such policies were legal in New\nYork when the Policy was issued. SPV then sought sanctions against the Estate’s\nattorneys, Brian Donahoe and Gerald Kroll, claiming that both attorneys had\n“unreasonably and vexatiously multiplied the proceedings” in violation of 28 U.S.C.\n§ 1927 and that Attorney Kroll had submitted a forged discovery document in\nviolation of Fed. R. Civ. P 26(g). The district court declined to impose sanctions.\n\n The Estate now appeals the district court’s denial of its motion for\nreconsideration, and SPV cross-appeals the district court’s denial of sanctions against\nthe Estate’s attorneys. We address each issue in turn.\n\n\n\n -6-\n\f II.\n\n The Estate has changed its position numerous times throughout the course of\nthis litigation. At summary judgment, it argued that New Jersey law, rather than New\nYork law, should apply, making the Policy an invalid STOLI. Alternatively, it argued\nthat, under New Jersey law, it should prevail on public policy grounds. However, the\nEstate has conceded on appeal that New York law applies.\n\n The Estate raised its current arguments for the first time in the district court in\nconnection with its motion for reconsideration, if it raised them at all. We therefore\ntreat its appeal as an appeal from the district court’s denial of that motion. A district\ncourt has wide discretion over whether to grant a motion for reconsideration of a prior\norder, In re Charter Commc’ns, Inc., Sec. Litig., 443 F.3d 987, 993 (8th Cir. 2006),\nand “we will reverse a denial of a motion for reconsideration only for a clear abuse of\ndiscretion.” Paris Limousine of Okla., LLC v. Exec. Coach Builders, Inc., 867 F.3d\n871, 873 (8th Cir. 2017). “An abuse of discretion will only be found if the district\ncourt’s judgment was based on clearly erroneous factual findings or erroneous legal\nconclusions.” Mathenia v. Delo, 99 F.3d 1476, 1480 (8th Cir. 1996). For the reasons\nset forth below, we conclude that the district court did not abuse its discretion in\ndenying the Estate’s motion for reconsideration.\n\n “The scope of the motion for reconsideration is critical in our\ndetermination . . . . A motion for reconsideration is not a vehicle to identify facts or\nlegal arguments that could have been, but were not, raised at the time the relevant\nmotion was pending.” Julianello v. K-V Pharm. Co., 791 F.3d 915, 923 (8th Cir.\n2015). Nor may a motion for reconsideration serve to introduce evidence that the\nmovant could have produced before the district court decided the prior motion. Id. at\n922; see also Hagerman v. Yukon Energy Corp., 839 F.2d 407, 414 (8th Cir. 1988)\n(stating that motions for reconsideration cannot be used to introduce new evidence or\nlegal theories that “could have been adduced during pendency of the summary\n\n -7-\n\fjudgment motion” (quoting Rothwell Cotton Co. v. Rosenthal & Co., 827 F.2d 246,\n251 (7th Cir. 1987))). A district court does not abuse its discretion in denying a\nmotion for reconsideration used for such an “impermissible purpose.” Julianello, 791\nF.3d at 923. This is precisely the situation we find here.\n\n The Estate moved for reconsideration based primarily on a new\nargument—nefarious coercion—and asserted judicial estoppel for the first time in a\nsupplemental filing.2 However, in its June 23, 2016 order holding the Estate’s motion\nfor reconsideration in abeyance, the district court correctly recognized that the Estate\ncould have raised its nefarious coercion argument in response to SPV’s motion for\nsummary judgment, yet it failed to do so. The same can be said for the Estate’s\njudicial estoppel argument, which it had not yet raised when the district court issued\nthe June 23 order. Nevertheless, the district court held the motion for reconsideration\nin abeyance pending further discovery, giving the Estate an opportunity to uncover\nand submit new evidence supporting its claims. Instead, the Estate presented an\nargument to the district court based solely on conjecture and accusations and failed\nto present new evidence which supported its motion. Because the Estate sought to use\nits motion for reconsideration for the impermissible purpose of introducing new\narguments it could have raised earlier, see Hagerman, 839 F.2d at 414 (stating that a\nmotion for reconsideration should not “serve as the occasion to tender new legal\ntheories for the first time” (quoting Rothwell, 827 F.2d at 251)), and because the\n\n\n 2\n The Estate raises several other arguments for the first time before this Court,\ncontending that Nachman Bergman lacked an insurable interest in his grandmother’s\nlife and that the district court should have certified the question of whether an\ninsurable interest existed at procurement of the policy to the New York Court of\nAppeals. As a general rule, a party may not raise an issue for the first time on appeal.\nTrs. of Electricians’ Salary Deferral Plan v. Wright, 688 F.3d 922, 926 (8th Cir.\n2012). We therefore decline to review the district court’s decision based on these\narguments. We note, however, that, even if the Estate had preserved these arguments,\nthe New York Court of Appeals does not accept certified questions from federal\ndistrict courts. See N.Y. Comp. Codes R. & Regs. tit. 22, § 500.27(a).\n\n -8-\n\fEstate then failed to support those arguments with any evidence even after receiving\nadditional time for discovery, we cannot say the district court abused its discretion in\nrefusing to reconsider its summary judgment ruling. See Julianello, 791 F.3d at 922-\n23 (finding no abuse of discretion in the district court’s dismissal of plaintiffs’\ncomplaint and denial of their motion to reconsider the scope of leave to amend that\ncomplaint when all the evidence plaintiffs presented in support of their motion for\nreconsideration was available to them when they opposed the defendant’s motion to\ndismiss).\n\n III.\n\n SPV sought sanctions against the Estate’s attorneys under 28 U.S.C. § 1927 and\nRule 26(g)(3) of the Federal Rules of Civil Procedure. It asserts on appeal that the\ndistrict court improperly failed to impose these sanctions. We affirm the district\ncourt’s denial of § 1927 sanctions against both attorneys and its denial of Rule 26\nsanctions against Attorney Donahoe, but we reverse the district court’s denial of Rule\n26 sanctions against Attorney Kroll and remand that issue for further consideration.\n\n “We review the denial of a motion for sanctions for an abuse of discretion,\naffording the district court substantial deference and finding an abuse of discretion\nonly if the court ‘bases its ruling on an erroneous view of the law or a clearly\nerroneous assessment of the evidence.’” C.H. Robinson Worldwide, Inc. v. Lobrano,\n695 F.3d 758, 763 (8th Cir. 2012) (quoting Monarch Fire Prot. Dist. v. Freedom\nConsulting & Auditing Servs., Inc., 644 F.3d 633, 639 (8th Cir. 2011)).\n\n A.\n\n 28 U.S.C. § 1927 permits courts to impose monetary sanctions on an attorney\nwho “multiplies the proceedings in any case unreasonably and vexatiously.” Courts\nshould construe § 1927 strictly and impose sanctions only “when attorney conduct,\n\n -9-\n\fviewed objectively, manifests either intentional or reckless disregard of the attorney’s\nduties to the court.” Lee v. L.B. Sales, Inc., 177 F.3d 714, 718 (8th Cir. 1999). The\ndistrict court found that any multiplication of proceedings in this case stemmed not\nfrom the attorneys’ conduct but from their clients’ conduct. SPV fails to argue with\nany specificity what the Estate’s attorneys did to warrant § 1927 sanctions and, thus,\ncannot establish that the district court based its ruling on an erroneous view of the law\nor evidence. We therefore find no abuse of discretion in the district court’s denial of\n§ 1927 sanctions.\n\n B.\n\n Fed. R. Civ. P. 26(g)(1) requires attorneys and pro se litigants to certify that\nevery disclosure is “complete and correct at the time it was made” and that every\ndiscovery request, response, and objection is consistent with the Federal Rules of Civil\nProcedure, nonfrivolous, not submitted for an improper purpose, and not unreasonable\nor unduly burdensome. Fed. R. Civ. P. 26(g)(3) imposes “appropriate” sanctions on\nattorneys or parties who violate Rule 26(g)(1). Such sanctions may include monetary\npenalties, such as expenses and attorneys’ fees, Johnson Int’l Co. v. Jackson Nat. Life\nIns. Co., 19 F.3d 431, 438 (8th Cir. 1994), and are particularly appropriate when an\nattorney submits a forged discovery document. See Perkins v. Gen. Motors Corp.,\n965 F.2d 597, 600 n.5 (8th Cir. 1992). Unlike § 1927 sanctions, these sanctions are\nnondiscretionary. Fed. R. Civ. P. 26(g)(3); Perkins, 965 F.2d at 600 n.5; see also\nRojas v. Town of Cicero, 775 F.3d 906, 909 (7th Cir. 2015) (“Rule 26(g)(3) gives the\njudge discretion over the nature of the sanction but not whether to impose one.”);\nChudasama v. Mazda Motor Corp., 123 F.3d 1353, 1372 (11th Cir. 1997) (“The\ndecision whether to impose sanctions under Rule 26(g)(3) is not discretionary.”).\n\n SPV’s key evidence supporting Rule 26(g) sanctions is an allegedly-forged\ndiscovery document and the associated metadata produced by Attorney Kroll. SPV\npresents no evidence that Attorney Donahoe participated in this violation of Rule\n\n -10-\n\f26(g)(1). We therefore decline to find that the district court abused its discretion in\ndenying Rule 26(g) sanctions against Attorney Donahoe.\n\n In response to a discovery request, Attorney Kroll provided SPV with a\nredacted copy of the retainer agreement between himself and the Estate’s personal\nrepresentative. After filing a motion to compel production in a related proceeding\nagainst Attorney Kroll in the United States District Court for the Central District of\nCalifornia, SPV obtained an unredacted draft of the same retainer agreement. This\ndraft showed Attorney Kroll would receive a contingency fee if either the Estate or the\nTrust prevailed in obtaining the death benefits payable under the Policy, supporting\nSPV’s theory that the Estate and Trust were controlled by the same parties in interest.\nWhen SPV produced the unredacted draft to the district court, the Estate claimed that\ndraft was not a correct copy and produced its own unredacted copy of the retainer\nagreement. The Estate’s copy omitted the provision awarding Attorney Kroll a\ncontingency fee if the Trust prevailed.\n\n SPV requested Rule 26(g)(3) sanctions based on document metadata, taken\ndirectly from Attorney Kroll’s computer by his e-discovery vendor. The metadata\nshowed that the retainer agreement produced by the Estate, while purportedly signed\nby the Estate’s personal representative in August 2015, was not created until July 20,\n2016—two days before Attorney Kroll produced the document to the court.\nTherefore, SPV argued, the document was forged. The district court acknowledged\nthat fabricating discovery documents is grounds for sanctions, see SPV-LS, LLC v.\nTransamerica Life Ins. Co., No. CIV 14-4092, 2017 WL 3668765, at *3 (Aug. 23,\n2017), but it denied sanctions against Attorney Kroll. It did so under the mistaken\nbelief that SPV relied on a document examiner’s report to prove forgery, stating that\nSPV should have produced that report. However, SPV never claimed that it relied on\na document examiner’s report; in fact, it indicated that it never consulted a document\nexaminer and relied solely on the document’s metadata. Because the district court\nbased its denial of sanctions on SPV’s failure to introduce a nonexistent report into\n\n -11-\n\fevidence, it clearly conducted an erroneous assessment of the evidence. See, e.g.,\nMDU Res. Grp. v. W.R. Grace & Co., 14 F.3d 1274, 1280 (8th Cir. 1994) (finding the\ndistrict court clearly conducted an erroneous assessment of evidence when it\nmisunderstood the purpose for which the evidence was offered). It therefore abused\nits discretion in denying Rule 26(g) sanctions against Attorney Kroll on this basis.\n\n IV.\n\n The district court’s denial of the Estate’s motion for reconsideration is affirmed.\nIts denial of § 1927 sanctions against Attorneys Donahoe and Kroll and its denial of\nRule 26(g) sanctions against Attorney Donahoe are likewise affirmed. The district\ncourt’s denial of Rule 26(g) sanctions against Attorney Kroll is reversed. The matter\nis remanded to the district court for further proceedings on the motion for Rule 26(g)\nsanctions against Attorney Kroll consistent with this opinion.\n ______________________________\n\n\n\n\n -12-\n[END_CASE]", "role": "user" } ]
4,579,597	Ria SCHUMACHER, Individually and on Behalf of All Others, Plaintiff - Appellee v. SC DATA CENTER, INC., Doing Business as Colony Brands, Inc., Defendant - Appellant	Ria Schumacher v. SC Data Center, Inc.	2019-01-08	17-3112	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Gruender, Kelly, Grasz", "parties": "", "opinions": [{"author": "GRASZ, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3112\n ___________________________\n\n Ria Schumacher, Individually and on Behalf of All Others\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n v.\n\n SC Data Center, Inc., doing business as Colony Brands, Inc.\n\n lllllllllllllllllllllDefendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the Western District of Missouri - Central Division\n ____________\n\n Submitted: November 14, 2018\n Filed: January 8, 2019\n ____________\n\nBefore GRUENDER, KELLY, and GRASZ, Circuit Judges.\n ____________\n\nGRASZ, Circuit Judge.\n\n After the parties reached a tentative settlement in this purported class action, SC\nData Center, Inc., moved to dismiss the case on the ground that the class\nrepresentative, Ria Schumacher, lacked standing. However, the district court enforced\nthe settlement between the parties without deciding the standing issue. SC Data\nCenter appeals, arguing the district court erred by not deciding standing first. We\n\fagree, vacate the district court’s approval of the settlement agreement, and remand the\ncase.\n\n In February 2016, Schumacher filed a purported class action in the Circuit\nCourt of Cole County, Missouri, alleging that SC Data Center committed three\nviolations of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. §§ 1681–1681x. SC\nData Center removed the case to federal court. In May 2016, the parties reached a\ntentative settlement agreement during mediation. Four days later, the Supreme Court\nreleased its opinion in Spokeo v. Robins, 136 S. Ct. 1540 (2016), holding that the\nNinth Circuit failed to properly analyze Article III standing in assessing a claim\nbrought under the FCRA.\n\n Subsequently, in July 2016, SC Data Center moved to dismiss this action for\nlack of standing. The district court denied the motion, concluding that “Schumacher’s\nstanding to bring the FCRA claims underlying this settlement is irrelevant to whether\nshe has standing to enforce the parties’ settlement agreement.”\n\n The district court ordered the parties to submit their settlement agreement for\napproval under Fed. R. Civ. P. 23(e), and they complied. The district court approved\nthe settlement, and SC Data Center timely appealed the decision.\n\n We agree with SC Data Center that the district court erred by not assessing\nstanding before enforcing the settlement agreement. “Article III standing must be\ndecided first by the court and presents a question of justiciability; if it is lacking, a\nfederal court has no subject-matter jurisdiction over the claim.” Miller v. Redwood\nToxicology Lab., Inc., 688 F.3d 928, 934 (8th Cir. 2012). A district court’s obligation\nto ensure that standing exists continues throughout the case because “[t]o qualify as\na case fit for federal-court adjudication, ‘an actual controversy must be extant at all\nstages of review, not merely at the time the complaint is filed.’” Arizonans for\nOfficial English v. Arizona, 520 U.S. 43, 67 (1997) (quoting Preiser v. Newkirk, 422\n\n -2-\n\fU.S. 395, 401 (1975)). This rule applies to settlements of class actions because “[a]n\napproved settlement takes the form of a judgment of the court, and without both\nArticle III power and proper subject-matter jurisdiction, the court cannot act.”\nRobertson v. Allied Sols., LLC, 902 F.3d 690, 698 (7th Cir. 2018). Thus, because the\ndistrict court’s act in approving a class settlement was a court judgment, it erred when\nit did not first assess standing.\n\n Schumacher argues that the district court did not need to reassess standing after\nSpokeo because SC Data Center cannot escape the settlement agreement based on a\nchange in the law. Specifically, she relies on Ehrheart v. Verizon Wireless, 609 F.3d\n590, 596 (3d Cir. 2010), to argue that a party cannot escape a settlement “simply\nbecause a change in the law confers upon it a benefit that could have altered the\nsettlement calculus.”\n\n Her argument is not persuasive here because Spokeo, even if it was a catalyst\nfor SC Data Center’s motion to dismiss, was not a change in the substantive law\nbearing on Schumacher’s claim that would have “altered the settlement calculus.” Id.;\nsee also Robertson, 902 F.3d at 698 (stating that “changes in the legal background that\ndo not affect Article III or subject-matter jurisdiction are an entirely different matter”\nfrom those that do affect jurisdiction). Other circuits have similarly distinguished the\nEhrheart line of cases when addressing Spokeo because “Spokeo did not change the\nlaw of standing and thus was not a post-agreement change in the law. It merely\nreiterated that an Article III injury must be both particular and concrete.” Robertson,\n902 F.3d at 698. Thus, Ehrheart provides no basis to avoid addressing standing\nbefore enforcing a settlement agreement.\n\n Because there is no finding in the record regarding whether Schumacher had\nstanding to pursue her claims, we vacate the district court’s approval of the settlement\nagreement and remand the case for a decision on whether Schumacher has standing.\nWe express no view on whether the Seventh Circuit’s opinion on FCRA standing or\n\n -3-\n\fone of the competing approaches in other circuits is best applied to the facts of this\ncase. Compare Robertson, 902 F.3d at 694–98, with Dutta v. State Farm Mut. Auto.\nIns. Co., 895 F.3d 1166, 1172–76 (9th Cir. 2018), and Long v. Se. Pa. Transp. Auth.,\n903 F.3d 312, 323–25 (3d Cir. 2018).\n ______________________________\n\n\n\n\n -4-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4356850/", "author_raw": "GRASZ, Circuit Judge."}]}	GRUENDER	KELLY	GRASZ	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4579597/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Ria SCHUMACHER, Individually and on Behalf of All Others, Plaintiff - Appellee v. SC DATA CENTER, INC., Doing Business as Colony Brands, Inc., Defendant - Appellant\nCourt: U.S. Court of Appeals for the Eighth Circuit\nDate decided: 2019-01-08\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3112\n ___________________________\n\n Ria Schumacher, Individually and on Behalf of All Others\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n v.\n\n SC Data Center, Inc., doing business as Colony Brands, Inc.\n\n lllllllllllllllllllllDefendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the Western District of Missouri - Central Division\n ____________\n\n Submitted: November 14, 2018\n Filed: January 8, 2019\n ____________\n\nBefore GRUENDER, KELLY, and GRASZ, Circuit Judges.\n ____________\n\nGRASZ, Circuit Judge.\n\n After the parties reached a tentative settlement in this purported class action, SC\nData Center, Inc., moved to dismiss the case on the ground that the class\nrepresentative, Ria Schumacher, lacked standing. However, the district court enforced\nthe settlement between the parties without deciding the standing issue. SC Data\nCenter appeals, arguing the district court erred by not deciding standing first. We\n\fagree, vacate the district court’s approval of the settlement agreement, and remand the\ncase.\n\n In February 2016, Schumacher filed a purported class action in the Circuit\nCourt of Cole County, Missouri, alleging that SC Data Center committed three\nviolations of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. §§ 1681–1681x. SC\nData Center removed the case to federal court. In May 2016, the parties reached a\ntentative settlement agreement during mediation. Four days later, the Supreme Court\nreleased its opinion in Spokeo v. Robins, 136 S. Ct. 1540 (2016), holding that the\nNinth Circuit failed to properly analyze Article III standing in assessing a claim\nbrought under the FCRA.\n\n Subsequently, in July 2016, SC Data Center moved to dismiss this action for\nlack of standing. The district court denied the motion, concluding that “Schumacher’s\nstanding to bring the FCRA claims underlying this settlement is irrelevant to whether\nshe has standing to enforce the parties’ settlement agreement.”\n\n The district court ordered the parties to submit their settlement agreement for\napproval under Fed. R. Civ. P. 23(e), and they complied. The district court approved\nthe settlement, and SC Data Center timely appealed the decision.\n\n We agree with SC Data Center that the district court erred by not assessing\nstanding before enforcing the settlement agreement. “Article III standing must be\ndecided first by the court and presents a question of justiciability; if it is lacking, a\nfederal court has no subject-matter jurisdiction over the claim.” Miller v. Redwood\nToxicology Lab., Inc., 688 F.3d 928, 934 (8th Cir. 2012). A district court’s obligation\nto ensure that standing exists continues throughout the case because “[t]o qualify as\na case fit for federal-court adjudication, ‘an actual controversy must be extant at all\nstages of review, not merely at the time the complaint is filed.’” Arizonans for\nOfficial English v. Arizona, 520 U.S. 43, 67 (1997) (quoting Preiser v. Newkirk, 422\n\n -2-\n\fU.S. 395, 401 (1975)). This rule applies to settlements of class actions because “[a]n\napproved settlement takes the form of a judgment of the court, and without both\nArticle III power and proper subject-matter jurisdiction, the court cannot act.”\nRobertson v. Allied Sols., LLC, 902 F.3d 690, 698 (7th Cir. 2018). Thus, because the\ndistrict court’s act in approving a class settlement was a court judgment, it erred when\nit did not first assess standing.\n\n Schumacher argues that the district court did not need to reassess standing after\nSpokeo because SC Data Center cannot escape the settlement agreement based on a\nchange in the law. Specifically, she relies on Ehrheart v. Verizon Wireless, 609 F.3d\n590, 596 (3d Cir. 2010), to argue that a party cannot escape a settlement “simply\nbecause a change in the law confers upon it a benefit that could have altered the\nsettlement calculus.”\n\n Her argument is not persuasive here because Spokeo, even if it was a catalyst\nfor SC Data Center’s motion to dismiss, was not a change in the substantive law\nbearing on Schumacher’s claim that would have “altered the settlement calculus.” Id.;\nsee also Robertson, 902 F.3d at 698 (stating that “changes in the legal background that\ndo not affect Article III or subject-matter jurisdiction are an entirely different matter”\nfrom those that do affect jurisdiction). Other circuits have similarly distinguished the\nEhrheart line of cases when addressing Spokeo because “Spokeo did not change the\nlaw of standing and thus was not a post-agreement change in the law. It merely\nreiterated that an Article III injury must be both particular and concrete.” Robertson,\n902 F.3d at 698. Thus, Ehrheart provides no basis to avoid addressing standing\nbefore enforcing a settlement agreement.\n\n Because there is no finding in the record regarding whether Schumacher had\nstanding to pursue her claims, we vacate the district court’s approval of the settlement\nagreement and remand the case for a decision on whether Schumacher has standing.\nWe express no view on whether the Seventh Circuit’s opinion on FCRA standing or\n\n -3-\n\fone of the competing approaches in other circuits is best applied to the facts of this\ncase. Compare Robertson, 902 F.3d at 694–98, with Dutta v. State Farm Mut. Auto.\nIns. Co., 895 F.3d 1166, 1172–76 (9th Cir. 2018), and Long v. Se. Pa. Transp. Auth.,\n903 F.3d 312, 323–25 (3d Cir. 2018).\n ______________________________\n\n\n\n\n -4-\n[END_CASE]", "role": "user" } ]
4,579,598	Michael SPRADLING, as Personal Representative of the Estate Of, William Collin Spradling, Deceased, Plaintiff-Appellant v. Clay HASTINGS, Individually and in His Official Capacity; Michael Ford, Individually and in His Official Capacity; Frederick Steve Woodall, "Steve" Individually and in His Official Capacity; Aaron Simon, Individually and in His Official Capacity; Stuart Thomas, Individually and in His Official Capacity; Little Rock, City Of, a Municipality, Defendants-Appellees	Michael Spradling v. Clay Hastings	2019-01-08	17-3573	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Smith, Melloy, Stras", "parties": "", "opinions": [{"author": "SMITH, Chief Judge", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3573\n ___________________________\n\n Michael Spradling, as Personal Representative of the Estate of, William Collin\n Spradling, Deceased\n\n lllllllllllllllllllllPlaintiff - Appellant\n\n v.\n\n Clay Hastings, Individually and in his Official Capacity; Michael Ford,\n Individually and in his Official Capacity; Frederick Steve Woodall, \"Steve\"\n Individually and in his Official Capacity; Aaron Simon, Individually and in his\nOfficial Capacity; Stuart Thomas, Individually and in his Official Capacity; Little\n Rock, City of, A Municipality\n\n lllllllllllllllllllllDefendants - Appellees\n ____________\n\n Appeal from United States District Court\n for the Eastern District of Arkansas - Little Rock\n ____________\n\n Submitted: September 27, 2018\n Filed: January 8, 2019\n ____________\n\nBefore SMITH, Chief Judge, MELLOY and STRAS, Circuit Judges.\n ____________\n\nSMITH, Chief Judge.\n\n On July 16, 2008, Officers Clay Hastings, Michael Ford, Steve Woodall, and\nAaron Simon of the Little Rock Police Department (LRPD) were investigating\n\fWilliam Collin Spradling (“Collin”) as a robbery suspect. During the investigation,\nCollin was shot and killed. Over four years later, on November 5, 2012, Michael\nSpradling, as the personal representative of Collin’s estate, filed suit pursuant to 42\nU.S.C. § 1983 against the officers, Little Rock Police Chief Stuart Thomas, and the\nCity of Little Rock (collectively, “defendants”). Spradling alleged that the officers\nused excessive force resulting in Collins’s wrongful death. The defendants moved for\nsummary judgment because Spradling filed his complaint outside of the applicable\nstatute of limitations. The district court1 granted the motion and dismissed the\ncomplaint with prejudice.\n\n On appeal, Spradling does not contest that he filed his § 1983 lawsuit outside\nof the applicable statute of limitations. See Ark. Code Ann. § 16-56-105. Instead, he\nargues that he presented evidence of fraudulent concealment and conspiracy sufficient\nto equitably toll the statute of limitations. Because we conclude that the undisputed\nfacts placed Spradling on objective notice of the need to investigate the shooting, we\nhold that the limitations period was not equitably tolled. Therefore, we affirm the\njudgment of the district court.\n\n I. Background\n On July 16, 2008, Officers Hastings, Ford, Woodall, and Simon responded to\n621 Gillette Road to investigate Collin as a robbery suspect. During the investigation,\nCollin was shot and killed.\n\n On November 5, 2012, Spradling filed this § 1983 lawsuit against the officers,\nalleging excessive force, in violation of the Fourth and Fourteenth Amendments, and\nwrongful death and negligence, see Ark. Code Ann. § 16-62-102(a) and (b). In\naddition, Spradling brought a survival claim. See Ark. Code Ann. § 16-62-101(a)(1).\n\n\n 1\n The Honorable James M. Moody Jr., United States District Judge for the\nEastern District of Arkansas.\n\n -2-\n\fSpradling voluntarily nonsuited the case and refiled the action on April 23, 2015. In\nthe refiled action, Spradling added Chief Thomas and the City of Little Rock (“City”)\nas defendants and added three additional claims: (1) a claim of failure to train,\nsupervise, or discipline against Chief Thomas and the City; (2) a claim that Chief\nThomas and the City permitted a widespread, persistent pattern of unconstitutional\nconduct; and (3) a civil conspiracy claim against the officers, Chief Thomas, and\nothers. In the refiled complaint, Spradling alleged that the defendants did not disclose\nmany pertinent facts and purposefully hid others following Collin’s death.\n\n The defendants moved to dismiss the complaint or, in the alternative, for\nsummary judgment based upon the statute of limitations. In resolving the motion to\ndismiss, the district court considered attachments and exhibits outside the pleadings.\nConsequently, it analyzed the defendants’ dismissal motion as a summary-judgment\nmotion. See Fed. R. Civ. P. 12(d). The district court denied the motion, concluding\nthat genuine issues of material fact existed as to when the statute of limitations began\nto run on Spradling’s claims. The court explained:\n\n Plaintiff alleges that he obtained the Spradling Use of Force File\n in 2009. However, that file did not contain certain audio and video\n recordings which cast doubt on the Defendants’ version of the events\n leading to Collin’s death. Until August 22, 2012, Plaintiff believed he\n possessed the complete and accurate file. Plaintiff claims that the\n Defendants withheld audio and video recordings from the day of the\n shooting, falsely transcribed witness statements, tampered with portions\n of video and audio records in order to destroy evidence, and intentionally\n gave the Plaintiff inaccurate information about the shooting.\n\nSpradling v. Hastings, No. 4:15-cv-00238, slip op. at 4 (E.D. Ark. Nov. 18, 2015),\nECF No. 14.\n\n\n\n\n -3-\n\f Later, the defendants did move for summary judgment, noting that Spradling\nfiled his initial complaint outside of the applicable statute of limitations. Based on the\nsummary-judgment record, the district court granted the motion. The court noted that\non November 4, 2008, Christina Hatfield, a witness to the shooting and the mother of\nCollins’s girlfriend, requested a copy of the case file relating to the shooting from the\nLRPD. She received a 556-page case file in response to her request. Then, in late\nNovember 2008 or early 2009, Spradling received a copy of the 556-page case file\nalong with a letter from Hatfield outlining the inconsistencies she believed existed in\nthe file. Hatfield’s letter provides, in relevant part:\n\n As I read through the file, I was struck by so many inconsistencies, that\n I cannot believe the prosecuting attorney’s office didn’t even call us for\n an interview before determining that it wasn’t prosecutable, even though\n I spoke with John Johnson twice, telling him we were available at any\n time and believed Collin had been murdered.\n\n With you not having actually been there, I just wanted to point out a\n couple of things for you to keep in mind as you go through this, as they\n try to paint a pretty good case of justifying their actions.\n\n In regards to the homicide:\n\n First and foremost, they all say Simon was yelling, “Gun, Gun, etc.”\n including Det. Gassaway who was in the FRONT yard at the time, yet\n neither myself, Rachael, nor Paul ever heard them say anything about a\n gun until later, even though we were standing right there. When you read\n our statements, you’ll see that we were consistent about that, even\n though we were immediately segregated from each other and never\n allowed to say a word to each other before our statements were taken.\n\n Simon’s Statement:\n Simon said Collin had his hand in his pocket, but when they first went\n to ground I saw Collin’s right hand, as did Rachael, and it was open and\n empty. Afterwards, there were so many men on him I couldn’t see his\n hands anymore, but if you look at the position of Collin’s right hand in\n\n -4-\n\fthe picture on page 363, how could Simon have possibly have had his\nhand on Collin’s in his right pocket? Also, he says the gun “dropped”\nfrom Collin’s hand, but that when he first saw it, it was about 2 feet\naway? Lastly, he says he moved it to the brick wall to secure it, but the\npicture again tells a different story. If the gun had dropped from Collin’s\nright hand, wouldn’t it have been a lot more secure right where is was,\nrather than on the wall, since Rachael and I were sitting on the back step\nand Paul was on the other side of the patio furniture?\n\nLundy’s Statement:\nLundy confirms he has Collin’s left arm, so takes the left out of play.\nAlso, IF Paul said, “I know he had a gun on him[,”] which he doesn’t\nbelieve he said . . . he would have been referring to the night before, just\nas I was in my statement. Paul’s own statement confirms that he hadn’t\nseen a gun that morning.\n\nWoodall Statement:\nWoodall states that Simon said he was “sure” he had a gun, yet Simon\nsays he never saw the gun until it was over, and that he felt it and\n“thought” it was a gun. Again, if you look at the picture on page 363,\nhow could Collin have possibly pulled a gun in that position with Simon\nholding his right hand or wrist, and Hastings holding his right arm? Also,\nWoodall says he saw the gun, but can’t even tell you what hand it was\nin? Lastly, he admits that he thought Collin had shot at some point.\n\nHastings Statement:\nHastings confirms that he too had Collin’s right arm. So we are to\nbelieve that Simon has his right hand/wrist and Hastings has his right\narm, yet Collin managed to reach into his right pocket while laying on\nhis right arm with 4 men on him . . . pull a gun . . . pull the slide back\n. . . and raise the barrel? Hastings also says he doesn’t know which hand\nthe gun was in and that he shot because he thought Collin had shot.\n\n\n\n\n -5-\n\f Ford’s Statement:\n Ford admits he never saw a gun, and only fired because he thought\n Collin had fired.\n\n How is it that myself and my two children, civilians who have never\n been around guns, could have known that Collin had NOT fired a\n weapon, yet these three trained law enforcement officers ALL thought\n he had?\n\n How is it that two of the three shooters say they don’t even know which\n hand Collin’s gun was in, and the third doesn’t even try to hide the fact\n that he never even saw a gun?\n\n ...\n\n I hope these notes help you in your attempts to get an attorney for your\n civil action, so we can all try to get some sort of justice for Collin. I am\n planning to contact the Attorney General’s office to continue to pursue\n criminal charges against the detectives, and hopefully the Harris’,\n although I’m not holding my breath at this point.\n\nMot. to Dismiss or, in the Alternative, Mot. for Summ. J., Ex. 5, at 1–3, Spradling v.\nHastings, No. 4:15-cv-00238 (E.D. Ark. June 26, 2015), ECF No. 5-5 (emphasis\nadded) (ellipses in original).\n\n Before the district court, Spradling argued against summary judgment,\ncontending that the running of the statute of limitations tolled because the disclosed\npolice file failed to contain certain audio and video recordings. The absence of these\nrecordings cast doubt on the defendants’ version of events leading to Collins’s death.\nThe district court acknowledged the absence of the recordings, but it concluded that\n“the case file did contain references to both the dash cam video and to taped\nstatements of witnesses. Further, the file contained transcripts of the taped\nstatements.” Spradling v. Hastings, No. 4:15-cv-00238, 2017 WL 6816541, at 2\n(E.D. Ark. Oct. 23, 2017). The court emphasized that “in Ms. Hatfield’s letter to the\n\n -6-\n\fPlaintiff she told him that she believed Collin had been murdered and outlined\ninconsistencies she believed existed in the case file.” Id.\n\n The court then held, based on the undisputed facts, that “by early 2009 when\nPlaintiff obtained the case file and the letter of Ms. Hatfield, Plaintiff was placed on\nobjective notice of the need to investigate the shooting.” Id. at 3. In support of its\nholding, the court cited (1) the case file’s reference to both the audio and video tapes;\n(2) Hatfield’s reference to inconsistences she believed existed in the case file and her\nbelief that Collin was murdered; and (3) Spradling’s admission in his affidavit that\n“after the shooting, Christina Hatfield told me her opinions that the shooting which\nshe witnessed, was not justified. She told me that Collin did not do anything that\nwould have justified the LRPD officers shooting him.” Id. With these considerations,\nthe district court concluded Spradling’s cause of action was not concealed. The court,\ntherefore, determined that the statute of limitations on Spradling’s cause of action\ncommenced at the latest in early 2009 and expired in early 2012. Because Spradling\ndid not file suit until November 2012, the court held that the suit was beyond the\nlimitations period.\n\n II. Discussion\n On appeal, Spradling argues that the district court erred in granting summary\njudgment to the defendants. Spradling admits he filed his initial complaint outside of\nthe applicable statute of limitations, but he argues that he presented sufficient evidence\nof fraudulent concealment and conspiracy to equitably toll the limitations period.\n\n “We review the grant of summary judgment based upon the statute of\nlimitations de novo and take all facts in the light most favorable to [Spradling].”\nMahanna v. U.S. Bank Nat’l Ass’n, 747 F.3d 998, 1001 (8th Cir. 2014).\n\n “Arkansas’s three-year personal injury statute of limitations applies to this\n§ 1983 action filed in Arkansas . . . .” Miller v. Norris, 247 F.3d 736, 739 (8th Cir.\n\n -7-\n\f2001) (first citing Ark. Code. Ann. § 16-56-105(3); and then citing Ketchum v. City\nof W. Memphis, Ark., 974 F.2d 81, 82 (8th Cir. 1992)). “The statute begins to run\nwhen the acts occur.” O’Mara v. Dykema, 942 S.W.2d 854, 858 (Ark. 1997). Collin\nwas killed on July 16, 2008. If not tolled, the three-year statute of limitations expired\non July 16, 2011. Spradling’s initial suit was filed on November 5, 2012—nearly 16\nmonths beyond the limitations period.\n\n Spradling does not contest that he filed his § 1983 lawsuit outside of the\napplicable limitations period; instead, he relies on the principle that “affirmative\nactions of concealment of a cause of action will toll the statute of limitations.” Id. As\nwe have previously recognized, Arkansas law provides:\n\n In order to toll the statute of limitations, there must be a fact\n question of some positive act of fraud, something so furtively planned\n and secretly executed as to keep the plaintiff’s cause of action concealed,\n or perpetrated in a way that it conceals itself. Where affirmative acts of\n concealment by the person charged with fraud prevent the discovery of\n that person’s misrepresentations, the statute of limitations will be tolled\n until the fraud is discovered or should have been discovered with the\n exercise of reasonable diligence.\n\n Arkansas courts hold that although the question of fraudulent\n concealment is normally a question of fact that is not suited for summary\n judgment, when the evidence leaves no room for a reasonable difference\n of opinion, a trial court may resolve fact issues as a matter of law.\n Concealment of facts, no matter how fraudulent or otherwise wrongful,\n has no effect on the running of a statute of limitations if the plaintiffs\n could have discovered the fraud or sufficient other facts on which to\n bring their lawsuit, through a reasonable effort on their part.\n\n ...\n\n The statute-of-limitations inquiry is not subjective—we do not inquire\n as to when the plaintiffs should have discovered or did discover the\n alleged fraudulent conduct. Instead, the question is whether the plaintiffs\n\n -8-\n\f used due diligence to discover the alleged fraud. The burden is on the\n plaintiff to exercise due diligence to discover the fraud if apprised of\n facts that should place the plaintiff on notice. The [plaintiff’s] ignorance\n of [his] rights does not prevent the operation of the statute of limitations.\n The statute is tolled only when the ignorance is produced by affirmative\n and fraudulent acts of concealment. The alleged acts of concealment or\n fraud must have been committed by those invoking the benefit of the\n statute of limitations.\n\nVarner v. Peterson Farms, 371 F.3d 1011, 1016–18 (8th Cir. 2004) (emphasis added)\n(cleaned up).\n\n To summarize, under Arkansas law, “the limitations period could only be tolled\nuntil such time that [the plaintiff] learned of the wrong or was placed on objective\nnotice of the need to investigate the matter.” Graham v. Catamaran Health Sols. LLC,\nNo. 16-1161, 2017 WL 3613328, at 5 (8th Cir. Aug. 23, 2017) (citing Varner, 317\nF.3d at 1017). “[Spradling], as the plaintiff, bears the burden of establishing the\napplicability of this tolling theory.” Id. (citing Chalmers v. Toyota Motor Sales, USA,\nInc., 935 S.W.2d 258, 261 (Ark. 1996)).\n\n Viewing the facts in the light most favorable to Spradling, the record shows that\non July 25, 2008, Spradling was appointed administrator of Collin’s estate “for the\nlimited purpose of performing any and all acts necessary to investigate, and, if\nwarranted, prosecute a wrongful death claim relative to the circumstances surrounding\nthe death of William Collin Spradling, which occurred on or about July 16, 2008.”\nMot. to Dismiss or, in the Alternative, Mot. for Summ. J., Ex. 1, at 1, Spradling v.\nHastings, No. 4:15-cv-00238 (E.D. Ark. June 26, 2015), ECF No. 5-1. Then, on\nNovember 4, 2008, Hatfield—who witnessed the shooting—sent a request to the\nLRPD to obtain a copy of the case file related to the shooting. Hatfield received the\ncase file in November 2008. A few weeks to a month after receiving the case file from\nthe LRPD, Hatfield sent the case file to Spradling, along with a letter containing her\nobservations about the file’s contents.\n\n -9-\n\f Crucially, Hatfield personally witnessed Collin’s shooting. Reviewing the\nrecord in the light most favorable to Spradling, we conclude that Hatfield’s detailed\nletter to Spradling— explaining the “many inconsistencies” that she found in the case\nfile and expressing her belief that Collin had been murdered—gave Spradling\n“objective notice of the need to investigate the matter.” Graham, 2017 WL 3613328,\nat 5. For his part, Spradling argues that he doubted Hatfield’s letter after reading “the\nofficial LRPD-transcribed statement of Ms. Hatfield” in which she indicated that\n“Collin had a gun on his person when he shot” despite Hatfield telling Spradling in\nher letter that Collin did not have a gun. Pl.’s Resp. in Opp’n to Defs.’ Mot. for\nSumm. J., Ex. 33, at 8, Spradling v. Hastings, No. 4:15-cv-00238 (E.D. Ark. July 14,\n2015), ECF No. 62-25. But Hatfield’s letter to Spradling explained some of the\nconfusion about her statement that Collin had a gun—she indicated that if she had said\nit, she was referring to the night prior. For purposes of our inquiry, the key question\nis whether Hatfield’s letter gave Spradling objective notice that further investigation\nwas necessary. Hatfield’s first-hand knowledge of events and the inconsistencies\ndetailed in her description of the events versus the police record placed Spradling on\nobjective notice that he needed to investigate further.\n\n Additionally, as the district court noted, the case file—which Spradling\npossessed—specifically referenced the audio and video recordings not included in the\nfile materials provided to Spradling by the defendants. Thus, their existence was not\nconcealed from Spradling. See Varner, 371 F.3d at 1016 (“In order to toll the statute\nof limitations, there must be a fact question of ‘some positive act of fraud, something\nso furtively planned and secretly executed as to keep the plaintiff’s cause of action\nconcealed, or perpetrated in a way that it conceals itself.’” (quoting Martin v. Arthur,\n3 S.W.3d 684, 687 (Ark. 1999))). As the district court noted, Spradling “could have\nobtained the audio and video files by simply requesting them.” Spradling, 2017 WL\n6816541, at *3.\n\n\n\n -10-\n\f Without question, this case involves a tragic loss of life. Legitimate, serious\nquestions surrounding the cause of that tragic loss appeared soon after it occurred.\nBased on the undisputed facts, these questions were present well within the three-year\nstatute of limitations for the claims alleged. Arkansas law prescribes that an action\nmust be dismissed when it is filed outside of the applicable limitations period.\nSpradling was on objective notice of the need to further investigate the circumstances\nsurrounding Collin’s death. He thus does not satisfy the requirements of equitable\ntolling.\n\n III. Conclusion\n Accordingly, we affirm the judgment of the district court.\n\n ______________________________\n\n\n\n\n -11-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4356851/", "author_raw": "SMITH, Chief Judge"}]}	SMITH	MELLOY	STRAS	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4579598/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Michael SPRADLING, as Personal Representative of the Estate Of, William Collin Spradling, Deceased, Plaintiff-Appellant v. Clay HASTINGS, Individually and in His Official Capacity; Michael Ford, Individually and in His Official Capacity; Frederick Steve Woodall, \"Steve\" Individually and in His Official Capacity; Aaron Simon, Individually and in His Official Capacity; Stuart Thomas, Individually and in His Official Capacity; Little Rock, City Of, a Municipality, Defendants-Appellees\nCourt: U.S. Court of Appeals for the Eighth Circuit\nDate decided: 2019-01-08\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3573\n ___________________________\n\n Michael Spradling, as Personal Representative of the Estate of, William Collin\n Spradling, Deceased\n\n lllllllllllllllllllllPlaintiff - Appellant\n\n v.\n\n Clay Hastings, Individually and in his Official Capacity; Michael Ford,\n Individually and in his Official Capacity; Frederick Steve Woodall, \"Steve\"\n Individually and in his Official Capacity; Aaron Simon, Individually and in his\nOfficial Capacity; Stuart Thomas, Individually and in his Official Capacity; Little\n Rock, City of, A Municipality\n\n lllllllllllllllllllllDefendants - Appellees\n ____________\n\n Appeal from United States District Court\n for the Eastern District of Arkansas - Little Rock\n ____________\n\n Submitted: September 27, 2018\n Filed: January 8, 2019\n ____________\n\nBefore SMITH, Chief Judge, MELLOY and STRAS, Circuit Judges.\n ____________\n\nSMITH, Chief Judge.\n\n On July 16, 2008, Officers Clay Hastings, Michael Ford, Steve Woodall, and\nAaron Simon of the Little Rock Police Department (LRPD) were investigating\n\fWilliam Collin Spradling (“Collin”) as a robbery suspect. During the investigation,\nCollin was shot and killed. Over four years later, on November 5, 2012, Michael\nSpradling, as the personal representative of Collin’s estate, filed suit pursuant to 42\nU.S.C. § 1983 against the officers, Little Rock Police Chief Stuart Thomas, and the\nCity of Little Rock (collectively, “defendants”). Spradling alleged that the officers\nused excessive force resulting in Collins’s wrongful death. The defendants moved for\nsummary judgment because Spradling filed his complaint outside of the applicable\nstatute of limitations. The district court1 granted the motion and dismissed the\ncomplaint with prejudice.\n\n On appeal, Spradling does not contest that he filed his § 1983 lawsuit outside\nof the applicable statute of limitations. See Ark. Code Ann. § 16-56-105. Instead, he\nargues that he presented evidence of fraudulent concealment and conspiracy sufficient\nto equitably toll the statute of limitations. Because we conclude that the undisputed\nfacts placed Spradling on objective notice of the need to investigate the shooting, we\nhold that the limitations period was not equitably tolled. Therefore, we affirm the\njudgment of the district court.\n\n I. Background\n On July 16, 2008, Officers Hastings, Ford, Woodall, and Simon responded to\n621 Gillette Road to investigate Collin as a robbery suspect. During the investigation,\nCollin was shot and killed.\n\n On November 5, 2012, Spradling filed this § 1983 lawsuit against the officers,\nalleging excessive force, in violation of the Fourth and Fourteenth Amendments, and\nwrongful death and negligence, see Ark. Code Ann. § 16-62-102(a) and (b). In\naddition, Spradling brought a survival claim. See Ark. Code Ann. § 16-62-101(a)(1).\n\n\n 1\n The Honorable James M. Moody Jr., United States District Judge for the\nEastern District of Arkansas.\n\n -2-\n\fSpradling voluntarily nonsuited the case and refiled the action on April 23, 2015. In\nthe refiled action, Spradling added Chief Thomas and the City of Little Rock (“City”)\nas defendants and added three additional claims: (1) a claim of failure to train,\nsupervise, or discipline against Chief Thomas and the City; (2) a claim that Chief\nThomas and the City permitted a widespread, persistent pattern of unconstitutional\nconduct; and (3) a civil conspiracy claim against the officers, Chief Thomas, and\nothers. In the refiled complaint, Spradling alleged that the defendants did not disclose\nmany pertinent facts and purposefully hid others following Collin’s death.\n\n The defendants moved to dismiss the complaint or, in the alternative, for\nsummary judgment based upon the statute of limitations. In resolving the motion to\ndismiss, the district court considered attachments and exhibits outside the pleadings.\nConsequently, it analyzed the defendants’ dismissal motion as a summary-judgment\nmotion. See Fed. R. Civ. P. 12(d). The district court denied the motion, concluding\nthat genuine issues of material fact existed as to when the statute of limitations began\nto run on Spradling’s claims. The court explained:\n\n Plaintiff alleges that he obtained the Spradling Use of Force File\n in 2009. However, that file did not contain certain audio and video\n recordings which cast doubt on the Defendants’ version of the events\n leading to Collin’s death. Until August 22, 2012, Plaintiff believed he\n possessed the complete and accurate file. Plaintiff claims that the\n Defendants withheld audio and video recordings from the day of the\n shooting, falsely transcribed witness statements, tampered with portions\n of video and audio records in order to destroy evidence, and intentionally\n gave the Plaintiff inaccurate information about the shooting.\n\nSpradling v. Hastings, No. 4:15-cv-00238, slip op. at 4 (E.D. Ark. Nov. 18, 2015),\nECF No. 14.\n\n\n\n\n -3-\n\f Later, the defendants did move for summary judgment, noting that Spradling\nfiled his initial complaint outside of the applicable statute of limitations. Based on the\nsummary-judgment record, the district court granted the motion. The court noted that\non November 4, 2008, Christina Hatfield, a witness to the shooting and the mother of\nCollins’s girlfriend, requested a copy of the case file relating to the shooting from the\nLRPD. She received a 556-page case file in response to her request. Then, in late\nNovember 2008 or early 2009, Spradling received a copy of the 556-page case file\nalong with a letter from Hatfield outlining the inconsistencies she believed existed in\nthe file. Hatfield’s letter provides, in relevant part:\n\n As I read through the file, I was struck by so many inconsistencies, that\n I cannot believe the prosecuting attorney’s office didn’t even call us for\n an interview before determining that it wasn’t prosecutable, even though\n I spoke with John Johnson twice, telling him we were available at any\n time and believed Collin had been murdered.\n\n With you not having actually been there, I just wanted to point out a\n couple of things for you to keep in mind as you go through this, as they\n try to paint a pretty good case of justifying their actions.\n\n In regards to the homicide:\n\n First and foremost, they all say Simon was yelling, “Gun, Gun, etc.”\n including Det. Gassaway who was in the FRONT yard at the time, yet\n neither myself, Rachael, nor Paul ever heard them say anything about a\n gun until later, even though we were standing right there. When you read\n our statements, you’ll see that we were consistent about that, even\n though we were immediately segregated from each other and never\n allowed to say a word to each other before our statements were taken.\n\n Simon’s Statement:\n Simon said Collin had his hand in his pocket, but when they first went\n to ground I saw Collin’s right hand, as did Rachael, and it was open and\n empty. Afterwards, there were so many men on him I couldn’t see his\n hands anymore, but if you look at the position of Collin’s right hand in\n\n -4-\n\fthe picture on page 363, how could Simon have possibly have had his\nhand on Collin’s in his right pocket? Also, he says the gun “dropped”\nfrom Collin’s hand, but that when he first saw it, it was about 2 feet\naway? Lastly, he says he moved it to the brick wall to secure it, but the\npicture again tells a different story. If the gun had dropped from Collin’s\nright hand, wouldn’t it have been a lot more secure right where is was,\nrather than on the wall, since Rachael and I were sitting on the back step\nand Paul was on the other side of the patio furniture?\n\nLundy’s Statement:\nLundy confirms he has Collin’s left arm, so takes the left out of play.\nAlso, IF Paul said, “I know he had a gun on him[,”] which he doesn’t\nbelieve he said . . . he would have been referring to the night before, just\nas I was in my statement. Paul’s own statement confirms that he hadn’t\nseen a gun that morning.\n\nWoodall Statement:\nWoodall states that Simon said he was “sure” he had a gun, yet Simon\nsays he never saw the gun until it was over, and that he felt it and\n“thought” it was a gun. Again, if you look at the picture on page 363,\nhow could Collin have possibly pulled a gun in that position with Simon\nholding his right hand or wrist, and Hastings holding his right arm? Also,\nWoodall says he saw the gun, but can’t even tell you what hand it was\nin? Lastly, he admits that he thought Collin had shot at some point.\n\nHastings Statement:\nHastings confirms that he too had Collin’s right arm. So we are to\nbelieve that Simon has his right hand/wrist and Hastings has his right\narm, yet Collin managed to reach into his right pocket while laying on\nhis right arm with 4 men on him . . . pull a gun . . . pull the slide back\n. . . and raise the barrel? Hastings also says he doesn’t know which hand\nthe gun was in and that he shot because he thought Collin had shot.\n\n\n\n\n -5-\n\f Ford’s Statement:\n Ford admits he never saw a gun, and only fired because he thought\n Collin had fired.\n\n How is it that myself and my two children, civilians who have never\n been around guns, could have known that Collin had NOT fired a\n weapon, yet these three trained law enforcement officers ALL thought\n he had?\n\n How is it that two of the three shooters say they don’t even know which\n hand Collin’s gun was in, and the third doesn’t even try to hide the fact\n that he never even saw a gun?\n\n ...\n\n I hope these notes help you in your attempts to get an attorney for your\n civil action, so we can all try to get some sort of justice for Collin. I am\n planning to contact the Attorney General’s office to continue to pursue\n criminal charges against the detectives, and hopefully the Harris’,\n although I’m not holding my breath at this point.\n\nMot. to Dismiss or, in the Alternative, Mot. for Summ. J., Ex. 5, at 1–3, Spradling v.\nHastings, No. 4:15-cv-00238 (E.D. Ark. June 26, 2015), ECF No. 5-5 (emphasis\nadded) (ellipses in original).\n\n Before the district court, Spradling argued against summary judgment,\ncontending that the running of the statute of limitations tolled because the disclosed\npolice file failed to contain certain audio and video recordings. The absence of these\nrecordings cast doubt on the defendants’ version of events leading to Collins’s death.\nThe district court acknowledged the absence of the recordings, but it concluded that\n“the case file did contain references to both the dash cam video and to taped\nstatements of witnesses. Further, the file contained transcripts of the taped\nstatements.” Spradling v. Hastings, No. 4:15-cv-00238, 2017 WL 6816541, at 2\n(E.D. Ark. Oct. 23, 2017). The court emphasized that “in Ms. Hatfield’s letter to the\n\n -6-\n\fPlaintiff she told him that she believed Collin had been murdered and outlined\ninconsistencies she believed existed in the case file.” Id.\n\n The court then held, based on the undisputed facts, that “by early 2009 when\nPlaintiff obtained the case file and the letter of Ms. Hatfield, Plaintiff was placed on\nobjective notice of the need to investigate the shooting.” Id. at 3. In support of its\nholding, the court cited (1) the case file’s reference to both the audio and video tapes;\n(2) Hatfield’s reference to inconsistences she believed existed in the case file and her\nbelief that Collin was murdered; and (3) Spradling’s admission in his affidavit that\n“after the shooting, Christina Hatfield told me her opinions that the shooting which\nshe witnessed, was not justified. She told me that Collin did not do anything that\nwould have justified the LRPD officers shooting him.” Id. With these considerations,\nthe district court concluded Spradling’s cause of action was not concealed. The court,\ntherefore, determined that the statute of limitations on Spradling’s cause of action\ncommenced at the latest in early 2009 and expired in early 2012. Because Spradling\ndid not file suit until November 2012, the court held that the suit was beyond the\nlimitations period.\n\n II. Discussion\n On appeal, Spradling argues that the district court erred in granting summary\njudgment to the defendants. Spradling admits he filed his initial complaint outside of\nthe applicable statute of limitations, but he argues that he presented sufficient evidence\nof fraudulent concealment and conspiracy to equitably toll the limitations period.\n\n “We review the grant of summary judgment based upon the statute of\nlimitations de novo and take all facts in the light most favorable to [Spradling].”\nMahanna v. U.S. Bank Nat’l Ass’n, 747 F.3d 998, 1001 (8th Cir. 2014).\n\n “Arkansas’s three-year personal injury statute of limitations applies to this\n§ 1983 action filed in Arkansas . . . .” Miller v. Norris, 247 F.3d 736, 739 (8th Cir.\n\n -7-\n\f2001) (first citing Ark. Code. Ann. § 16-56-105(3); and then citing Ketchum v. City\nof W. Memphis, Ark., 974 F.2d 81, 82 (8th Cir. 1992)). “The statute begins to run\nwhen the acts occur.” O’Mara v. Dykema, 942 S.W.2d 854, 858 (Ark. 1997). Collin\nwas killed on July 16, 2008. If not tolled, the three-year statute of limitations expired\non July 16, 2011. Spradling’s initial suit was filed on November 5, 2012—nearly 16\nmonths beyond the limitations period.\n\n Spradling does not contest that he filed his § 1983 lawsuit outside of the\napplicable limitations period; instead, he relies on the principle that “affirmative\nactions of concealment of a cause of action will toll the statute of limitations.” Id. As\nwe have previously recognized, Arkansas law provides:\n\n In order to toll the statute of limitations, there must be a fact\n question of some positive act of fraud, something so furtively planned\n and secretly executed as to keep the plaintiff’s cause of action concealed,\n or perpetrated in a way that it conceals itself. Where affirmative acts of\n concealment by the person charged with fraud prevent the discovery of\n that person’s misrepresentations, the statute of limitations will be tolled\n until the fraud is discovered or should have been discovered with the\n exercise of reasonable diligence.\n\n Arkansas courts hold that although the question of fraudulent\n concealment is normally a question of fact that is not suited for summary\n judgment, when the evidence leaves no room for a reasonable difference\n of opinion, a trial court may resolve fact issues as a matter of law.\n Concealment of facts, no matter how fraudulent or otherwise wrongful,\n has no effect on the running of a statute of limitations if the plaintiffs\n could have discovered the fraud or sufficient other facts on which to\n bring their lawsuit, through a reasonable effort on their part.\n\n ...\n\n The statute-of-limitations inquiry is not subjective—we do not inquire\n as to when the plaintiffs should have discovered or did discover the\n alleged fraudulent conduct. Instead, the question is whether the plaintiffs\n\n -8-\n\f used due diligence to discover the alleged fraud. The burden is on the\n plaintiff to exercise due diligence to discover the fraud if apprised of\n facts that should place the plaintiff on notice. The [plaintiff’s] ignorance\n of [his] rights does not prevent the operation of the statute of limitations.\n The statute is tolled only when the ignorance is produced by affirmative\n and fraudulent acts of concealment. The alleged acts of concealment or\n fraud must have been committed by those invoking the benefit of the\n statute of limitations.\n\nVarner v. Peterson Farms, 371 F.3d 1011, 1016–18 (8th Cir. 2004) (emphasis added)\n(cleaned up).\n\n To summarize, under Arkansas law, “the limitations period could only be tolled\nuntil such time that [the plaintiff] learned of the wrong or was placed on objective\nnotice of the need to investigate the matter.” Graham v. Catamaran Health Sols. LLC,\nNo. 16-1161, 2017 WL 3613328, at 5 (8th Cir. Aug. 23, 2017) (citing Varner, 317\nF.3d at 1017). “[Spradling], as the plaintiff, bears the burden of establishing the\napplicability of this tolling theory.” Id. (citing Chalmers v. Toyota Motor Sales, USA,\nInc., 935 S.W.2d 258, 261 (Ark. 1996)).\n\n Viewing the facts in the light most favorable to Spradling, the record shows that\non July 25, 2008, Spradling was appointed administrator of Collin’s estate “for the\nlimited purpose of performing any and all acts necessary to investigate, and, if\nwarranted, prosecute a wrongful death claim relative to the circumstances surrounding\nthe death of William Collin Spradling, which occurred on or about July 16, 2008.”\nMot. to Dismiss or, in the Alternative, Mot. for Summ. J., Ex. 1, at 1, Spradling v.\nHastings, No. 4:15-cv-00238 (E.D. Ark. June 26, 2015), ECF No. 5-1. Then, on\nNovember 4, 2008, Hatfield—who witnessed the shooting—sent a request to the\nLRPD to obtain a copy of the case file related to the shooting. Hatfield received the\ncase file in November 2008. A few weeks to a month after receiving the case file from\nthe LRPD, Hatfield sent the case file to Spradling, along with a letter containing her\nobservations about the file’s contents.\n\n -9-\n\f Crucially, Hatfield personally witnessed Collin’s shooting. Reviewing the\nrecord in the light most favorable to Spradling, we conclude that Hatfield’s detailed\nletter to Spradling— explaining the “many inconsistencies” that she found in the case\nfile and expressing her belief that Collin had been murdered—gave Spradling\n“objective notice of the need to investigate the matter.” Graham, 2017 WL 3613328,\nat 5. For his part, Spradling argues that he doubted Hatfield’s letter after reading “the\nofficial LRPD-transcribed statement of Ms. Hatfield” in which she indicated that\n“Collin had a gun on his person when he shot” despite Hatfield telling Spradling in\nher letter that Collin did not have a gun. Pl.’s Resp. in Opp’n to Defs.’ Mot. for\nSumm. J., Ex. 33, at 8, Spradling v. Hastings, No. 4:15-cv-00238 (E.D. Ark. July 14,\n2015), ECF No. 62-25. But Hatfield’s letter to Spradling explained some of the\nconfusion about her statement that Collin had a gun—she indicated that if she had said\nit, she was referring to the night prior. For purposes of our inquiry, the key question\nis whether Hatfield’s letter gave Spradling objective notice that further investigation\nwas necessary. Hatfield’s first-hand knowledge of events and the inconsistencies\ndetailed in her description of the events versus the police record placed Spradling on\nobjective notice that he needed to investigate further.\n\n Additionally, as the district court noted, the case file—which Spradling\npossessed—specifically referenced the audio and video recordings not included in the\nfile materials provided to Spradling by the defendants. Thus, their existence was not\nconcealed from Spradling. See Varner, 371 F.3d at 1016 (“In order to toll the statute\nof limitations, there must be a fact question of ‘some positive act of fraud, something\nso furtively planned and secretly executed as to keep the plaintiff’s cause of action\nconcealed, or perpetrated in a way that it conceals itself.’” (quoting Martin v. Arthur,\n3 S.W.3d 684, 687 (Ark. 1999))). As the district court noted, Spradling “could have\nobtained the audio and video files by simply requesting them.” Spradling, 2017 WL\n6816541, at *3.\n\n\n\n -10-\n\f Without question, this case involves a tragic loss of life. Legitimate, serious\nquestions surrounding the cause of that tragic loss appeared soon after it occurred.\nBased on the undisputed facts, these questions were present well within the three-year\nstatute of limitations for the claims alleged. Arkansas law prescribes that an action\nmust be dismissed when it is filed outside of the applicable limitations period.\nSpradling was on objective notice of the need to further investigate the circumstances\nsurrounding Collin’s death. He thus does not satisfy the requirements of equitable\ntolling.\n\n III. Conclusion\n Accordingly, we affirm the judgment of the district court.\n\n ______________________________\n\n\n\n\n -11-\n[END_CASE]", "role": "user" } ]
4,579,889	Yobarri Takie EASON, Petitioner - Appellant v. UNITED STATES of America, Respondent - Appellee	Yobarri Eason v. United States	2019-01-09	17-3299	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Smith, Loken, Gruender", "parties": "", "opinions": [{"author": "LOKEN, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3299\n ___________________________\n\n Yobarri Takie Eason\n\n lllllllllllllllllllllPetitioner - Appellant\n\n v.\n\n United States of America\n\n lllllllllllllllllllllRespondent - Appellee\n ____________\n\n Appeal from United States District Court\n for the District of Minnesota - Minneapolis\n ____________\n\n Submitted: October 19, 2018\n Filed: January 9, 2019\n ____________\n\nBefore SMITH, Chief Judge, LOKEN and GRUENDER, Circuit Judges.\n ____________\n\nLOKEN, Circuit Judge.\n\n In 2008, Yobarri Takie Eason pleaded guilty to one count of distributing\ncocaine base in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A), and one count of\npossessing a firearm as an armed career criminal in violation of 18 U.S.C. § 922(g)(1)\nand § 924(e). The Presentence Investigation Report (“PSR”) stated that Eason had\nprior convictions for aggravated robbery, simple robbery, and second-degree assault\n\fwith a dangerous weapon. Eason conceded these convictions made him an armed\ncareer criminal under the Armed Career Criminal Act (“ACCA”). The district court1\nadopted the PSR’s findings and imposed concurrent 220-month prison sentences on\nthe two counts. Eason did not appeal the convictions and sentences.\n\n In 2014, Eason filed a post-conviction motion to vacate his sentence on the\nfirearm count, arguing that his prior juvenile conviction for aggravated robbery was\nno longer a violent felony after the Supreme Court’s decision in Descamps v. United\nStates, 570 U.S. 254 (2013). The district court denied the motion as time-barred\nbecause Descamps did not announce a newly recognized rule that would extend the\none-year statute of limitations. See 28 U.S.C. § 2255(f)(3). In September 2016, we\ngranted Eason authorization to file a second or successive § 2255 motion challenging\nhis sentence on the firearm count based on the Supreme Court’s recent decision in\nJohnson v. United States, 135 S. Ct. 2551 (2015). Because Eason did not challenge\nhis concurrent 220-month sentence for distributing cocaine base, the district court\ndenied the successive motion as precluded by the concurrent sentence doctrine and\ngranted Eason a certificate of appealability on this issue. On appeal, he argues the\ndistrict court erred in applying the concurrent sentence doctrine because he faces the\npossibility of adverse consequences if the merits of his successive § 2255 motion are\nnot reviewed. Reviewing this issue de novo, we affirm.\n\n The concurrent sentence doctrine allows courts to decline to review the validity\nof a concurrent conviction or sentence when a ruling in the defendant’s favor “would\nnot reduce the time he is required to serve” or otherwise “prejudice him in any way.”\nUnited States v. Olunloyo, 10 F.3d 578, 581-82 (8th Cir. 1993). Early cases\nconsidering the doctrine involved challenges to one or more concurrent convictions,\nfor example, for violation of the Double Jeopardy Clause, and courts struggled to\n\n\n 1\n The Honorable John R. Tunheim, Chief Judge of the United States District\nCourt for the District of Minnesota.\n\n -2-\n\fdefine the minimal level of prejudice that would preclude application of the\nconcurrent sentence doctrine. See Benton v. Maryland, 395 U.S. 784, 787-93 (1969).\nThat was the issue in Logan v. Lockhart, 994 F.2d 1324, 1331-32 (8th Cir. 1993).\nThe issue was largely eliminated when the Supreme Court ruled that the special\nassessment imposed “on any person convicted of an offense against the United\nStates,” 18 U.S.C. § 3013(a), now $100 for a felony offense by an individual, is\nsufficient prejudice to require § 2255 review of a concurrent conviction’s validity.\nSee Rutledge v. United States, 517 U.S. 292, 301-03 (1996); United States v. Holmes,\n620 F.3d 836, 846 n.3 (8th Cir. 2010). However, where a § 2255 motion challenges\nonly the validity of a concurrent sentence, as in this case, the concurrent sentence\ndoctrine will apply unless a ruling in Eason’s favor would reduce the time he is\nrequired to serve or otherwise prejudice him in any way. See United States v.\nBradley, 644 F.3d 1213, 1293-94 (11th Cir. 2011).\n\n In denying Eason’s successive § 2255 motion, the district court explained:\n\n The Court finds that applying the concurrent-sentence doctrine is\n justified in this case because Eason’s total sentence, and his sentence on\n [the drug charge], was not affected by the ACCA enhancement. . . . The\n ACCA enhancement had no effect on Eason’s overall advisory\n Guidelines range or his statutory range for [the drug charge]: Eason\n already had a ten-year mandatory minimum for [the drug charge] and the\n advisory Guidelines range, with or without the ACCA enhancement,\n would have been 262- to 327-months imprisonment. Additionally, there\n is no indication that the ACCA enhancement drove Eason’s sentence\n because the Court sentenced Eason to 40 additional months, beyond the\n mandatory minimum, and the record suggests that the advisory\n Guidelines for career offenders—unaffected by Eason’s ACCA\n enhancement—drove Eason’s advisory Guidelines range and the Court’s\n sentencing decision.\n\n\n\n\n -3-\n\fUnited States v. Eason, No. 08-CR-0123, 2017 WL 3381813, at *2-3 (D. Minn. Aug.\n4, 2017). Eason does not challenge the district court’s conclusion that a successful\nchallenge to his sentence as an armed career criminal on the firearm count would not\nreduce his total concurrent sentence on both counts.2 But he argues that failure to\naddress the merits of his challenge to being sentenced as an armed career criminal\ncould nonetheless prejudice him in the future.\n\n To establish the risk of future prejudice, Eason hypothesizes that, after serving\nhis 220-month sentence for drug trafficking, he might violate his concurrent\nsupervised release terms so seriously that the district court would revoke supervised\nrelease and impose the maximum revocation sentence authorized by 18 U.S.C.\n§ 3583(e)(3). Under his concurrent 220-month sentences, the maximum revocation\nsentence would be ten years imprisonment (consecutive five-year sentences on each\ncount). See 18 U.S.C. §§ 3559(a)(1), 3583(b)(1). But if Eason was not sentenced as\nan armed career criminal for the firearm count, the maximum revocation sentence\nwould be only eight years (five years + three years) because the firearm offense\nwould then be a Class C felony. See §§ 3559(a)(3), 3583(b)(2).\n\n Eason cites no case where we refused to apply the concurrent sentence doctrine\nbased on such “highly speculative” adverse collateral consequences. United States\nv. Wilson, 671 F.2d 1138, 1139-40 n.2 (8th Cir. 1982). Moreover, the adverse\ncollateral consequence Eason posits is more than highly speculative. It could not\n\n\n 2\n Eason does argue that reversal of his sentence on the firearm count under\nJohnson would result in a resentencing under the “sentencing package” doctrine that\ncould result in a reduced total sentence. In his Rule 59(e) motion for reconsideration\nto the district court, Eason argued that his “original sentence was the type of\n‘package’ that must be reconfigured entirely once his ACCA sentence is vacated.”\nThe district court did not abuse its discretion in rejecting this contention, which\nmisconstrued the “sentencing package” doctrine. See Wright v. United States, 902\nF.3d 868, 872-73 (8th Cir. 2018).\n\n -4-\n\foccur unless Eason chooses to commit serious violations of law during his future\nterm of supervised release. Cf. USSG §§ 7B1.1(a), 7B1.4(a)(2). Thus, the adverse\nconsequences are entirely within Eason’s control to avoid. “[L]iteral application of\nsuch speculative consequences, resting upon a supposition of defendant’s continued\ncriminality, would effectively bar the application of the [concurrent sentence] rule.”\nUnited States v. Darnell, 545 F.2d 595, 599 (8th Cir. 1976). We again decline to\nagree that this type of speculation precludes district courts from applying this useful\nrule. Rather, we agree with the district court’s decision to apply the discretionary\nconcurrent sentence doctrine and deny successive § 2255 relief because sentencing\nEason as an armed career criminal on the firearm count had no impact on his advisory\nguidelines range for the drug trafficking charge, and his 220-month sentence was 40\nmonths above the ACCA’s mandatory 180-month minimum.\n\n The Order of the district court dated August 4, 2017, is affirmed.\n ______________________________\n\n\n\n\n -5-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4357142/", "author_raw": "LOKEN, Circuit Judge."}]}	SMITH	LOKEN	GRUENDER	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4579889/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Yobarri Takie EASON, Petitioner - Appellant v. UNITED STATES of America, Respondent - Appellee\nCourt: U.S. Court of Appeals for the Eighth Circuit\nDate decided: 2019-01-09\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3299\n ___________________________\n\n Yobarri Takie Eason\n\n lllllllllllllllllllllPetitioner - Appellant\n\n v.\n\n United States of America\n\n lllllllllllllllllllllRespondent - Appellee\n ____________\n\n Appeal from United States District Court\n for the District of Minnesota - Minneapolis\n ____________\n\n Submitted: October 19, 2018\n Filed: January 9, 2019\n ____________\n\nBefore SMITH, Chief Judge, LOKEN and GRUENDER, Circuit Judges.\n ____________\n\nLOKEN, Circuit Judge.\n\n In 2008, Yobarri Takie Eason pleaded guilty to one count of distributing\ncocaine base in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A), and one count of\npossessing a firearm as an armed career criminal in violation of 18 U.S.C. § 922(g)(1)\nand § 924(e). The Presentence Investigation Report (“PSR”) stated that Eason had\nprior convictions for aggravated robbery, simple robbery, and second-degree assault\n\fwith a dangerous weapon. Eason conceded these convictions made him an armed\ncareer criminal under the Armed Career Criminal Act (“ACCA”). The district court1\nadopted the PSR’s findings and imposed concurrent 220-month prison sentences on\nthe two counts. Eason did not appeal the convictions and sentences.\n\n In 2014, Eason filed a post-conviction motion to vacate his sentence on the\nfirearm count, arguing that his prior juvenile conviction for aggravated robbery was\nno longer a violent felony after the Supreme Court’s decision in Descamps v. United\nStates, 570 U.S. 254 (2013). The district court denied the motion as time-barred\nbecause Descamps did not announce a newly recognized rule that would extend the\none-year statute of limitations. See 28 U.S.C. § 2255(f)(3). In September 2016, we\ngranted Eason authorization to file a second or successive § 2255 motion challenging\nhis sentence on the firearm count based on the Supreme Court’s recent decision in\nJohnson v. United States, 135 S. Ct. 2551 (2015). Because Eason did not challenge\nhis concurrent 220-month sentence for distributing cocaine base, the district court\ndenied the successive motion as precluded by the concurrent sentence doctrine and\ngranted Eason a certificate of appealability on this issue. On appeal, he argues the\ndistrict court erred in applying the concurrent sentence doctrine because he faces the\npossibility of adverse consequences if the merits of his successive § 2255 motion are\nnot reviewed. Reviewing this issue de novo, we affirm.\n\n The concurrent sentence doctrine allows courts to decline to review the validity\nof a concurrent conviction or sentence when a ruling in the defendant’s favor “would\nnot reduce the time he is required to serve” or otherwise “prejudice him in any way.”\nUnited States v. Olunloyo, 10 F.3d 578, 581-82 (8th Cir. 1993). Early cases\nconsidering the doctrine involved challenges to one or more concurrent convictions,\nfor example, for violation of the Double Jeopardy Clause, and courts struggled to\n\n\n 1\n The Honorable John R. Tunheim, Chief Judge of the United States District\nCourt for the District of Minnesota.\n\n -2-\n\fdefine the minimal level of prejudice that would preclude application of the\nconcurrent sentence doctrine. See Benton v. Maryland, 395 U.S. 784, 787-93 (1969).\nThat was the issue in Logan v. Lockhart, 994 F.2d 1324, 1331-32 (8th Cir. 1993).\nThe issue was largely eliminated when the Supreme Court ruled that the special\nassessment imposed “on any person convicted of an offense against the United\nStates,” 18 U.S.C. § 3013(a), now $100 for a felony offense by an individual, is\nsufficient prejudice to require § 2255 review of a concurrent conviction’s validity.\nSee Rutledge v. United States, 517 U.S. 292, 301-03 (1996); United States v. Holmes,\n620 F.3d 836, 846 n.3 (8th Cir. 2010). However, where a § 2255 motion challenges\nonly the validity of a concurrent sentence, as in this case, the concurrent sentence\ndoctrine will apply unless a ruling in Eason’s favor would reduce the time he is\nrequired to serve or otherwise prejudice him in any way. See United States v.\nBradley, 644 F.3d 1213, 1293-94 (11th Cir. 2011).\n\n In denying Eason’s successive § 2255 motion, the district court explained:\n\n The Court finds that applying the concurrent-sentence doctrine is\n justified in this case because Eason’s total sentence, and his sentence on\n [the drug charge], was not affected by the ACCA enhancement. . . . The\n ACCA enhancement had no effect on Eason’s overall advisory\n Guidelines range or his statutory range for [the drug charge]: Eason\n already had a ten-year mandatory minimum for [the drug charge] and the\n advisory Guidelines range, with or without the ACCA enhancement,\n would have been 262- to 327-months imprisonment. Additionally, there\n is no indication that the ACCA enhancement drove Eason’s sentence\n because the Court sentenced Eason to 40 additional months, beyond the\n mandatory minimum, and the record suggests that the advisory\n Guidelines for career offenders—unaffected by Eason’s ACCA\n enhancement—drove Eason’s advisory Guidelines range and the Court’s\n sentencing decision.\n\n\n\n\n -3-\n\fUnited States v. Eason, No. 08-CR-0123, 2017 WL 3381813, at *2-3 (D. Minn. Aug.\n4, 2017). Eason does not challenge the district court’s conclusion that a successful\nchallenge to his sentence as an armed career criminal on the firearm count would not\nreduce his total concurrent sentence on both counts.2 But he argues that failure to\naddress the merits of his challenge to being sentenced as an armed career criminal\ncould nonetheless prejudice him in the future.\n\n To establish the risk of future prejudice, Eason hypothesizes that, after serving\nhis 220-month sentence for drug trafficking, he might violate his concurrent\nsupervised release terms so seriously that the district court would revoke supervised\nrelease and impose the maximum revocation sentence authorized by 18 U.S.C.\n§ 3583(e)(3). Under his concurrent 220-month sentences, the maximum revocation\nsentence would be ten years imprisonment (consecutive five-year sentences on each\ncount). See 18 U.S.C. §§ 3559(a)(1), 3583(b)(1). But if Eason was not sentenced as\nan armed career criminal for the firearm count, the maximum revocation sentence\nwould be only eight years (five years + three years) because the firearm offense\nwould then be a Class C felony. See §§ 3559(a)(3), 3583(b)(2).\n\n Eason cites no case where we refused to apply the concurrent sentence doctrine\nbased on such “highly speculative” adverse collateral consequences. United States\nv. Wilson, 671 F.2d 1138, 1139-40 n.2 (8th Cir. 1982). Moreover, the adverse\ncollateral consequence Eason posits is more than highly speculative. It could not\n\n\n 2\n Eason does argue that reversal of his sentence on the firearm count under\nJohnson would result in a resentencing under the “sentencing package” doctrine that\ncould result in a reduced total sentence. In his Rule 59(e) motion for reconsideration\nto the district court, Eason argued that his “original sentence was the type of\n‘package’ that must be reconfigured entirely once his ACCA sentence is vacated.”\nThe district court did not abuse its discretion in rejecting this contention, which\nmisconstrued the “sentencing package” doctrine. See Wright v. United States, 902\nF.3d 868, 872-73 (8th Cir. 2018).\n\n -4-\n\foccur unless Eason chooses to commit serious violations of law during his future\nterm of supervised release. Cf. USSG §§ 7B1.1(a), 7B1.4(a)(2). Thus, the adverse\nconsequences are entirely within Eason’s control to avoid. “[L]iteral application of\nsuch speculative consequences, resting upon a supposition of defendant’s continued\ncriminality, would effectively bar the application of the [concurrent sentence] rule.”\nUnited States v. Darnell, 545 F.2d 595, 599 (8th Cir. 1976). We again decline to\nagree that this type of speculation precludes district courts from applying this useful\nrule. Rather, we agree with the district court’s decision to apply the discretionary\nconcurrent sentence doctrine and deny successive § 2255 relief because sentencing\nEason as an armed career criminal on the firearm count had no impact on his advisory\nguidelines range for the drug trafficking charge, and his 220-month sentence was 40\nmonths above the ACCA’s mandatory 180-month minimum.\n\n The Order of the district court dated August 4, 2017, is affirmed.\n ______________________________\n\n\n\n\n -5-\n[END_CASE]", "role": "user" } ]
4,579,895	MEDTRONIC SOFAMOR DANEK, INC.; Medtronic Sofamor Danek USA, Inc.; Medtronic, Inc., Plaintiffs - Appellees v. Patrick B. GANNON, Defendant - Appellant	Medtronic Sofamor Danek, Inc. v. Patrick B. Gannon	2019-01-09	17-3302	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Smith, Loken, Gruender", "parties": "", "opinions": [{"author": "GRUENDER, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3302\n ___________________________\n\nMedtronic Sofamor Danek, Inc.; Medtronic Sofamor Danek USA, Inc.; Medtronic,\n Inc.\n\n lllllllllllllllllllllPlaintiffs - Appellees\n\n v.\n\n Patrick B. Gannon\n\n lllllllllllllllllllllDefendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the District of Minnesota - Minneapolis\n ____________\n\n Submitted: October 16, 2018\n Filed: January 9, 2019\n ____________\n\nBefore SMITH, Chief Judge, LOKEN and GRUENDER, Circuit Judges.\n ____________\n\nGRUENDER, Circuit Judge.\n\n Patrick Gannon appeals the grant of a motion to remand filed by his former\nemployer, Medtronic Sofamor Danek, Inc., Medtronic Sofamor Danek USA, Inc., and\n\fMedtronic, Inc. (collectively, “Medtronic”). The district court1 held that Gannon\nwaived his right to remove the case to federal court because the employment contract\nhe signed contained an enforceable forum selection clause. We affirm.\n\n I.\n\n On March 2, 2015, Gannon signed an Offer Letter, an Employee Agreement,\nand a Repayment Agreement. He does not dispute that he signed these documents at\nthe same time to form an employment relationship with Medtronic.\n\n The Offer Letter is a “formal offer of employment at Medtronic.” By signing\nit, Gannon “ACCEPT[ED] THIS OFFER OF EMPLOYMENT” and agreed to the\nterms set forth in it. The Offer Letter includes basic information about Gannon’s\nemployment, including his start date, compensation structure, vacation time, and\ntraining. It is also expressly “contingent upon [Gannon] signing the attached\nEmployee Agreement and the Sales Guarantee Repayment Agreement.”\n\n The Employee Agreement deals with things like confidentiality, proprietary\ninventions, and restrictions on competition. It also includes a forum selection clause.\nThat clause says that disputes “arising out of or related to this Agreement” must be\nlitigated in Minnesota state court and that Gannon “irrevocably consents to the\npersonal jurisdiction of the state courts in the State of Minnesota for the purposes of\nany action arising out of or related to this Agreement.” The Employee Agreement\ndoes not address “compensation, benefits, and other financial terms and conditions,”\nwhich it says are “set forth in separate documents provided to [Gannon].” In a section\nentitled “Prior Agreements,” the Employee Agreement says that nothing in it “affects\nany term or provision of any MEDTRONIC compensation or benefit plan or any\nagreements related thereto.”\n\n\n\n 1\n The Honorable Susan Richard Nelson, United States District Judge for the\nDistrict of Minnesota.\n\n -2-\n\f The one-page Repayment Agreement states that Medtronic and Gannon “wish\nto enter into an . . . employment relationship.” Medtronic agreed to pay Gannon\n$900,000 over a three-year “Guarantee Period,” but “if [Gannon] voluntarily\nterminates from Medtronic during the Guarantee Period or within one year after the\nend of the Guarantee Period, [he] must pay back to Medtronic the difference\nbetween” his earned commissions and payments received. The Offer Letter also\ndescribes the Guarantee Period and summarizes the condition of repayment should\nGannon terminate his employment during this period. The Repayment Agreement\ndoes not include a forum selection clause.\n\n In late 2016, Gannon left Medtronic. Medtronic sued him in Minnesota state\ncourt, alleging that he left during the Guarantee Period and failed to repay Medtronic\npursuant to the Repayment Agreement. Gannon removed the action to federal court\nunder 28 U.S.C. § 1332(a)(1), and Medtronic moved to remand pursuant to the forum\nselection clause in the Employee Agreement. The district court granted Medtronic’s\nmotion, holding that the forum selection clause in the Employee Agreement applied\nto actions arising from the Repayment Agreement because, under Minnesota law,\nboth agreements were different parts of the same contract. It also determined that\nMedtronic’s suit was “related to” the Employee Agreement and therefore subject to\nits forum selection clause. Gannon appeals.\n\n II.\n\n We review a district court’s grant of a motion to remand de novo. See\nFaltermeier v. FCA US LLC, 899 F.3d 617, 620 (8th Cir. 2018). “Under 28 U.S.C.\n§ 1446, a defendant may remove a case filed in state court to federal court based on\ndiversity jurisdiction.” PR Group, LLC v. Windmill Intern., Ltd., 792 F.3d 1025,\n1026 (8th Cir. 2015). This right to remove may be waived by agreement. Id. “Such\nwaiver must be clear and unequivocal.” Id.\n\n The parties do not dispute that Minnesota law applies to the interpretation of\nthe Employee Agreement, Repayment Agreement, and Offer Letter. They also do not\n\n -3-\n\fdispute that the forum selection clause in the Employee Agreement is clear and\nunequivocal. But they disagree about whether the forum selection clause applies to\nthe present dispute, which arises from the Repayment Agreement. Gannon argues\nthat the forum selection clause does not apply to the Repayment Agreement because\nit is a separate contract from the Employee Agreement. But even if they are parts of\nthe same contract, he claims that language in the Employee Agreement precludes\napplication of its forum selection clause to the Repayment Agreement.\n\n A.\n\n As an initial matter, Gannon asserts that a party may waive its right to remove\nan action for breach of contract only if the contract from which the action arose\ncontains a clear and unequivocal forum selection clause. See, e.g., City of New\nOrleans v. Municipal Admin. Servs., 376 F.3d 501, 504 (5th Cir. 2004); Brister v.\nRomanowski, No. 14-2921, 2015 WL 2090236, at 2 (E.D. La. Apr. 30, 2015).\nMaintaining that the Employee Agreement and Repayment Agreement are separate\ncontracts, Gannon concludes that he did not waive his right to remove because this\naction arose from the Repayment Agreement, a contract that does not contain a forum\nselection clause.\n\n But the Employment Agreement and Repayment Agreement are not separate\ncontracts. Under Minnesota law, “instruments executed at the same time, for the\nsame purpose, and in the course of the same transaction are, in the eyes of the law,\none instrument and will be read and construed together unless the parties stipulate\notherwise.” Marso v. Mankato Clinic, Ltd., 153 N.W.2d 281, 288-89 (Minn. 1967).\n“Whether separate documents executed simultaneously should be treated as a single\ncontract is governed by the intent of the parties manifested at the time of contracting\nand viewed in light of the surrounding circumstances.” Farrell v. Johnson, 442\nN.W.2d 805, 807 (Minn. Ct. App. 1989).\n\n The Employee Agreement, Repayment Agreement, and Offer Letter were\nexecuted simultaneously, and the circumstances surrounding their execution indicate\n\n -4-\n\fthat they should be treated as a single contract. The Offer Letter constitutes a “formal\noffer of employment” and is contingent upon Gannon’s execution of the Employee\nAgreement and Repayment Agreement, strong indications that all three documents\nare part of the same transaction and were executed for the same purpose of forming\nan employment relationship. See Boston Scientific Corp. v. Kiland, No. 10-4053,\n2011 WL 3035088, at 3 (D. Minn. July 25, 2011) (applying Minnesota law and\nholding that employment-related agreements must be read together in part because\n“entering into both agreements was a condition of guaranteed employment and\ncompensation”). The Offer Letter also summarizes the key provisions of the\nRepayment Agreement, and the Repayment Agreement states that “[Gannon] and\nMedtronic wish to enter into an . . . employment relationship,” which, as Gannon\nconcedes, was formed by his execution of all three documents. The Repayment\nAgreement is therefore not a “free-standing contract,” as he claims.\n\n Gannon also contends that the Employee Agreement and Repayment\nAgreement are separate contracts because they do not expressly incorporate each\nother. But Minnesota courts do not require that separate agreements incorporate each\nother to be considered parts of the same contract. Marso, 153 N.W.2d at 289 (“Where\nseveral instruments are made part of one transaction, they will be read together and\neach will be construed with reference to the others, although the instruments do not\nin terms refer to each other.”).\n\n For these reasons, we hold that the Offer Letter, Employee Agreement, and\nRepayment Agreement are parts of a single contract.\n\n B.\n\n We next address Gannon’s argument that language in the Employee Agreement\nprecludes application of its forum selection clause to this action. The forum selection\nclause says that disputes “arising out of or related to this Agreement” must be\nlitigated in Minnesota state court. Gannon contends that the clause is, at the very\nleast, ambiguous whether it extends to claims arising from the Repayment Agreement,\n\n -5-\n\fand we should therefore construe it against its drafter, Medtronic. See Hilligoss v.\nCargill, Inc., 649 N.W.2d 142, 148 (Minn. 2002) (“A fundamental principle of\ncontract law is that when contract language is reasonably susceptible of more than\none interpretation it is ambiguous, and ambiguous contract terms must be construed\nagainst the drafter . . . .”). However, the clause is reasonably susceptible to only one\ninterpretation.\n\n When analyzing the forum selection clause, we must “avoid an interpretation\nthat renders a clause meaningless.” See Fortune Funding, LLC v. Ceridian Corp.,\n368 F.3d 985, 987 (8th Cir. 2004) (applying Minnesota law). We agree with the\ndistrict court that “[b]ecause the words ‘arising out of’ must mean disputes about the\nterms of the Employee Agreement—that is, confidentiality, restrictive covenant,\netc.—the words ‘or relating to’ must mean something else.” Medtronic Sofamor\nDanek, Inc., et al. v. Gannon, No. 0:17-cv-00943, 2017 WL 4685041, at *4 (D. Minn.\nOct. 16, 2017). Our analysis about whether the Repayment Agreement and Employee\nAgreement are different parts of the same contract applies here and requires us to\nconclude that the Repayment Agreement is unambiguously “related to” the Employee\nAgreement. They were executed at the same time and for the same purpose, and\nwithout either one of them, the Offer Letter would be unenforceable. The Repayment\nAgreement and Employee Agreement are also complementary in that they address\ndifferent aspects of the same employment relationship. The Repayment Agreement\nfocuses on compensation, and the Employee Agreement on things like confidentiality,\nproprietary inventions, and restrictions on competition. Indeed, the Employee\nAgreement expressly saves compensation terms for “separate documents provided to\n[Gannon],” another indication that any such document (i.e., the Repayment\nAgreement) is “related to” it.\n\n Gannon also relies on the “Prior Agreements” section of the Employee\nAgreement, which says that “nothing in [the Employee Agreement] affects any term\nor provision of any MEDTRONIC compensation or benefit plan or any agreements\nrelated thereto.” He argues that application of the forum selection clause violates the\n\n -6-\n\f“Prior Agreements” section because doing so “affects” the Repayment Agreement.\nBut under Minnesota law, “the specific in a writing governs over the general,” and\ntherefore the “Prior Agreements” section cannot supersede the forum selection clause,\nwhich is specific to the question of proper venue in this case. See Burgi v. Eckes, 354\nN.W.2d 514, 519 (Minn. Ct. App. 1984). We also note that Gannon’s interpretation\ncreates a conflict within the Employee Agreement between the “Prior Agreements”\nsection and the forum selection clause. Such an interpretation is disfavored. See\nOster v. Medtronic, Inc., 428 N.W.2d 116, 119 (Minn. Ct. App. 1988) (“Where there\nis an apparent conflict between two clauses or provisions of a contract, it is the\ncourt’s duty to find harmony between them and to reconcile them if possible.”).\nThus, the language of the Employee Agreement does not preclude application of its\nforum selection clause to this action.\n\n III.\n\n We conclude that the Employee Agreement contains a clear and unequivocal\nforum selection clause that unambiguously encompasses the Repayment Agreement,\nand we affirm the district court’s grant of Medtronic’s motion to remand.\n\n ______________________________\n\n\n\n\n -7-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4357148/", "author_raw": "GRUENDER, Circuit Judge."}]}	SMITH	LOKEN	GRUENDER	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4579895/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: MEDTRONIC SOFAMOR DANEK, INC.; Medtronic Sofamor Danek USA, Inc.; Medtronic, Inc., Plaintiffs - Appellees v. Patrick B. GANNON, Defendant - Appellant\nCourt: U.S. Court of Appeals for the Eighth Circuit\nDate decided: 2019-01-09\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3302\n ___________________________\n\nMedtronic Sofamor Danek, Inc.; Medtronic Sofamor Danek USA, Inc.; Medtronic,\n Inc.\n\n lllllllllllllllllllllPlaintiffs - Appellees\n\n v.\n\n Patrick B. Gannon\n\n lllllllllllllllllllllDefendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the District of Minnesota - Minneapolis\n ____________\n\n Submitted: October 16, 2018\n Filed: January 9, 2019\n ____________\n\nBefore SMITH, Chief Judge, LOKEN and GRUENDER, Circuit Judges.\n ____________\n\nGRUENDER, Circuit Judge.\n\n Patrick Gannon appeals the grant of a motion to remand filed by his former\nemployer, Medtronic Sofamor Danek, Inc., Medtronic Sofamor Danek USA, Inc., and\n\fMedtronic, Inc. (collectively, “Medtronic”). The district court1 held that Gannon\nwaived his right to remove the case to federal court because the employment contract\nhe signed contained an enforceable forum selection clause. We affirm.\n\n I.\n\n On March 2, 2015, Gannon signed an Offer Letter, an Employee Agreement,\nand a Repayment Agreement. He does not dispute that he signed these documents at\nthe same time to form an employment relationship with Medtronic.\n\n The Offer Letter is a “formal offer of employment at Medtronic.” By signing\nit, Gannon “ACCEPT[ED] THIS OFFER OF EMPLOYMENT” and agreed to the\nterms set forth in it. The Offer Letter includes basic information about Gannon’s\nemployment, including his start date, compensation structure, vacation time, and\ntraining. It is also expressly “contingent upon [Gannon] signing the attached\nEmployee Agreement and the Sales Guarantee Repayment Agreement.”\n\n The Employee Agreement deals with things like confidentiality, proprietary\ninventions, and restrictions on competition. It also includes a forum selection clause.\nThat clause says that disputes “arising out of or related to this Agreement” must be\nlitigated in Minnesota state court and that Gannon “irrevocably consents to the\npersonal jurisdiction of the state courts in the State of Minnesota for the purposes of\nany action arising out of or related to this Agreement.” The Employee Agreement\ndoes not address “compensation, benefits, and other financial terms and conditions,”\nwhich it says are “set forth in separate documents provided to [Gannon].” In a section\nentitled “Prior Agreements,” the Employee Agreement says that nothing in it “affects\nany term or provision of any MEDTRONIC compensation or benefit plan or any\nagreements related thereto.”\n\n\n\n 1\n The Honorable Susan Richard Nelson, United States District Judge for the\nDistrict of Minnesota.\n\n -2-\n\f The one-page Repayment Agreement states that Medtronic and Gannon “wish\nto enter into an . . . employment relationship.” Medtronic agreed to pay Gannon\n$900,000 over a three-year “Guarantee Period,” but “if [Gannon] voluntarily\nterminates from Medtronic during the Guarantee Period or within one year after the\nend of the Guarantee Period, [he] must pay back to Medtronic the difference\nbetween” his earned commissions and payments received. The Offer Letter also\ndescribes the Guarantee Period and summarizes the condition of repayment should\nGannon terminate his employment during this period. The Repayment Agreement\ndoes not include a forum selection clause.\n\n In late 2016, Gannon left Medtronic. Medtronic sued him in Minnesota state\ncourt, alleging that he left during the Guarantee Period and failed to repay Medtronic\npursuant to the Repayment Agreement. Gannon removed the action to federal court\nunder 28 U.S.C. § 1332(a)(1), and Medtronic moved to remand pursuant to the forum\nselection clause in the Employee Agreement. The district court granted Medtronic’s\nmotion, holding that the forum selection clause in the Employee Agreement applied\nto actions arising from the Repayment Agreement because, under Minnesota law,\nboth agreements were different parts of the same contract. It also determined that\nMedtronic’s suit was “related to” the Employee Agreement and therefore subject to\nits forum selection clause. Gannon appeals.\n\n II.\n\n We review a district court’s grant of a motion to remand de novo. See\nFaltermeier v. FCA US LLC, 899 F.3d 617, 620 (8th Cir. 2018). “Under 28 U.S.C.\n§ 1446, a defendant may remove a case filed in state court to federal court based on\ndiversity jurisdiction.” PR Group, LLC v. Windmill Intern., Ltd., 792 F.3d 1025,\n1026 (8th Cir. 2015). This right to remove may be waived by agreement. Id. “Such\nwaiver must be clear and unequivocal.” Id.\n\n The parties do not dispute that Minnesota law applies to the interpretation of\nthe Employee Agreement, Repayment Agreement, and Offer Letter. They also do not\n\n -3-\n\fdispute that the forum selection clause in the Employee Agreement is clear and\nunequivocal. But they disagree about whether the forum selection clause applies to\nthe present dispute, which arises from the Repayment Agreement. Gannon argues\nthat the forum selection clause does not apply to the Repayment Agreement because\nit is a separate contract from the Employee Agreement. But even if they are parts of\nthe same contract, he claims that language in the Employee Agreement precludes\napplication of its forum selection clause to the Repayment Agreement.\n\n A.\n\n As an initial matter, Gannon asserts that a party may waive its right to remove\nan action for breach of contract only if the contract from which the action arose\ncontains a clear and unequivocal forum selection clause. See, e.g., City of New\nOrleans v. Municipal Admin. Servs., 376 F.3d 501, 504 (5th Cir. 2004); Brister v.\nRomanowski, No. 14-2921, 2015 WL 2090236, at 2 (E.D. La. Apr. 30, 2015).\nMaintaining that the Employee Agreement and Repayment Agreement are separate\ncontracts, Gannon concludes that he did not waive his right to remove because this\naction arose from the Repayment Agreement, a contract that does not contain a forum\nselection clause.\n\n But the Employment Agreement and Repayment Agreement are not separate\ncontracts. Under Minnesota law, “instruments executed at the same time, for the\nsame purpose, and in the course of the same transaction are, in the eyes of the law,\none instrument and will be read and construed together unless the parties stipulate\notherwise.” Marso v. Mankato Clinic, Ltd., 153 N.W.2d 281, 288-89 (Minn. 1967).\n“Whether separate documents executed simultaneously should be treated as a single\ncontract is governed by the intent of the parties manifested at the time of contracting\nand viewed in light of the surrounding circumstances.” Farrell v. Johnson, 442\nN.W.2d 805, 807 (Minn. Ct. App. 1989).\n\n The Employee Agreement, Repayment Agreement, and Offer Letter were\nexecuted simultaneously, and the circumstances surrounding their execution indicate\n\n -4-\n\fthat they should be treated as a single contract. The Offer Letter constitutes a “formal\noffer of employment” and is contingent upon Gannon’s execution of the Employee\nAgreement and Repayment Agreement, strong indications that all three documents\nare part of the same transaction and were executed for the same purpose of forming\nan employment relationship. See Boston Scientific Corp. v. Kiland, No. 10-4053,\n2011 WL 3035088, at 3 (D. Minn. July 25, 2011) (applying Minnesota law and\nholding that employment-related agreements must be read together in part because\n“entering into both agreements was a condition of guaranteed employment and\ncompensation”). The Offer Letter also summarizes the key provisions of the\nRepayment Agreement, and the Repayment Agreement states that “[Gannon] and\nMedtronic wish to enter into an . . . employment relationship,” which, as Gannon\nconcedes, was formed by his execution of all three documents. The Repayment\nAgreement is therefore not a “free-standing contract,” as he claims.\n\n Gannon also contends that the Employee Agreement and Repayment\nAgreement are separate contracts because they do not expressly incorporate each\nother. But Minnesota courts do not require that separate agreements incorporate each\nother to be considered parts of the same contract. Marso, 153 N.W.2d at 289 (“Where\nseveral instruments are made part of one transaction, they will be read together and\neach will be construed with reference to the others, although the instruments do not\nin terms refer to each other.”).\n\n For these reasons, we hold that the Offer Letter, Employee Agreement, and\nRepayment Agreement are parts of a single contract.\n\n B.\n\n We next address Gannon’s argument that language in the Employee Agreement\nprecludes application of its forum selection clause to this action. The forum selection\nclause says that disputes “arising out of or related to this Agreement” must be\nlitigated in Minnesota state court. Gannon contends that the clause is, at the very\nleast, ambiguous whether it extends to claims arising from the Repayment Agreement,\n\n -5-\n\fand we should therefore construe it against its drafter, Medtronic. See Hilligoss v.\nCargill, Inc., 649 N.W.2d 142, 148 (Minn. 2002) (“A fundamental principle of\ncontract law is that when contract language is reasonably susceptible of more than\none interpretation it is ambiguous, and ambiguous contract terms must be construed\nagainst the drafter . . . .”). However, the clause is reasonably susceptible to only one\ninterpretation.\n\n When analyzing the forum selection clause, we must “avoid an interpretation\nthat renders a clause meaningless.” See Fortune Funding, LLC v. Ceridian Corp.,\n368 F.3d 985, 987 (8th Cir. 2004) (applying Minnesota law). We agree with the\ndistrict court that “[b]ecause the words ‘arising out of’ must mean disputes about the\nterms of the Employee Agreement—that is, confidentiality, restrictive covenant,\netc.—the words ‘or relating to’ must mean something else.” Medtronic Sofamor\nDanek, Inc., et al. v. Gannon, No. 0:17-cv-00943, 2017 WL 4685041, at *4 (D. Minn.\nOct. 16, 2017). Our analysis about whether the Repayment Agreement and Employee\nAgreement are different parts of the same contract applies here and requires us to\nconclude that the Repayment Agreement is unambiguously “related to” the Employee\nAgreement. They were executed at the same time and for the same purpose, and\nwithout either one of them, the Offer Letter would be unenforceable. The Repayment\nAgreement and Employee Agreement are also complementary in that they address\ndifferent aspects of the same employment relationship. The Repayment Agreement\nfocuses on compensation, and the Employee Agreement on things like confidentiality,\nproprietary inventions, and restrictions on competition. Indeed, the Employee\nAgreement expressly saves compensation terms for “separate documents provided to\n[Gannon],” another indication that any such document (i.e., the Repayment\nAgreement) is “related to” it.\n\n Gannon also relies on the “Prior Agreements” section of the Employee\nAgreement, which says that “nothing in [the Employee Agreement] affects any term\nor provision of any MEDTRONIC compensation or benefit plan or any agreements\nrelated thereto.” He argues that application of the forum selection clause violates the\n\n -6-\n\f“Prior Agreements” section because doing so “affects” the Repayment Agreement.\nBut under Minnesota law, “the specific in a writing governs over the general,” and\ntherefore the “Prior Agreements” section cannot supersede the forum selection clause,\nwhich is specific to the question of proper venue in this case. See Burgi v. Eckes, 354\nN.W.2d 514, 519 (Minn. Ct. App. 1984). We also note that Gannon’s interpretation\ncreates a conflict within the Employee Agreement between the “Prior Agreements”\nsection and the forum selection clause. Such an interpretation is disfavored. See\nOster v. Medtronic, Inc., 428 N.W.2d 116, 119 (Minn. Ct. App. 1988) (“Where there\nis an apparent conflict between two clauses or provisions of a contract, it is the\ncourt’s duty to find harmony between them and to reconcile them if possible.”).\nThus, the language of the Employee Agreement does not preclude application of its\nforum selection clause to this action.\n\n III.\n\n We conclude that the Employee Agreement contains a clear and unequivocal\nforum selection clause that unambiguously encompasses the Repayment Agreement,\nand we affirm the district court’s grant of Medtronic’s motion to remand.\n\n ______________________________\n\n\n\n\n -7-\n[END_CASE]", "role": "user" } ]
4,580,408	UNITED STATES of America, Plaintiff - Appellee, v. Joseph L. HILL, Defendant - Appellant.	United States v. Joseph Hill	2019-01-10	17-2425	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Colloton, Gruender, Grasz", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-2425\n ___________________________\n\n United States of America,\n\n lllllllllllllllllllllPlaintiff - Appellee,\n\n v.\n\n Joseph L. Hill,\n\n lllllllllllllllllllllDefendant - Appellant.\n ____________\n\n Appeal from United States District Court\n for the Western District of Missouri - Kansas City\n ____________\n\n Submitted: September 24, 2018\n Filed: January 10, 2019\n [Published]\n ____________\n\nBefore COLLOTON, GRUENDER, and GRASZ, Circuit Judges.\n ____________\n\nPER CURIAM.\n\n Joseph Hill pleaded guilty to unlawful possession of ammunition as a\npreviously convicted felon, in violation of 18 U.S.C. § 922(g)(1). The district court1\n\n 1\n The Honorable Beth Phillips, United States District Judge for the Western\nDistrict of Missouri.\n\fdetermined that Hill qualified as an armed career criminal under the Armed Career\nCriminal Act, 18 U.S.C. § 924(e)(1), because he had sustained three prior convictions\nfor “a serious drug offense” within the meaning of § 924(e)(2)(A)(ii). The court\ntherefore sentenced him to the statutory minimum term of fifteen years’\nimprisonment. Hill argues on appeal that his prior convictions under Missouri law\ndo not qualify as serious drug offenses, so he is not an armed career criminal, and that\nthe maximum punishment for his offense is therefore only ten years’ imprisonment.\nSee id. § 924(a)(2).\n\n In concluding that Hill was an armed career criminal, the district court cited\nfour prior convictions under Missouri Revised Statutes § 195.211.1 (1989), which\ncriminalized the distribution, delivery, manufacture, or production of a controlled\nsubstance. “Delivery” includes both the sale of a controlled substance and the “offer\ntherefor.” See Mo. Rev. Stat. §§ 195.010(8) and 195.010(36) (1997). Hill observes\nthat the definition of “serious drug offense” under § 924(e)(2)(A)(ii) requires an\noffense under state law “involving manufacturing, distributing, or possessing with\nintent to manufacture or distribute” a controlled substance. He argues that a state\ncrime involving merely an offer to sell drugs does not qualify.\n\n Hill’s argument is foreclosed by the reasoning of United States v. Bynum, 669\nF.3d 880 (8th Cir. 2012). There, we held that a knowing offer to sell drugs in\nMinnesota is a crime “involving” the distribution of drugs, because it is “related to\nor connected with” drug distribution. Id. at 886 (quoting United States v. Vickers,\n540 F.3d 356, 365 (5th Cir. 2008)). United States v. Wadena, 895 F.3d 1075 (8th Cir.\n2018), reiterated that an offer to sell drugs is a serious drug offense under the Act.\nId. at 1077. For the same reasons, the district court properly counted Hill’s\nconvictions under a Missouri statute that forbade an offer to sell controlled\nsubstances. With three prior convictions for a serious drug offense, Hill qualified as\n\n\n\n\n -2-\n\fan armed career criminal and was subject to the mandatory minimum term of fifteen\nyears’ imprisonment.\n\n The judgment of the district court is affirmed.\n ______________________________\n\n\n\n\n -3-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4357661/", "author_raw": "PER CURIAM"}]}	COLLOTON	GRUENDER	GRASZ	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4580408/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff - Appellee, v. Joseph L. HILL, Defendant - Appellant.\nCourt: U.S. Court of Appeals for the Eighth Circuit\nDate decided: 2019-01-10\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-2425\n ___________________________\n\n United States of America,\n\n lllllllllllllllllllllPlaintiff - Appellee,\n\n v.\n\n Joseph L. Hill,\n\n lllllllllllllllllllllDefendant - Appellant.\n ____________\n\n Appeal from United States District Court\n for the Western District of Missouri - Kansas City\n ____________\n\n Submitted: September 24, 2018\n Filed: January 10, 2019\n [Published]\n ____________\n\nBefore COLLOTON, GRUENDER, and GRASZ, Circuit Judges.\n ____________\n\nPER CURIAM.\n\n Joseph Hill pleaded guilty to unlawful possession of ammunition as a\npreviously convicted felon, in violation of 18 U.S.C. § 922(g)(1). The district court1\n\n 1\n The Honorable Beth Phillips, United States District Judge for the Western\nDistrict of Missouri.\n\fdetermined that Hill qualified as an armed career criminal under the Armed Career\nCriminal Act, 18 U.S.C. § 924(e)(1), because he had sustained three prior convictions\nfor “a serious drug offense” within the meaning of § 924(e)(2)(A)(ii). The court\ntherefore sentenced him to the statutory minimum term of fifteen years’\nimprisonment. Hill argues on appeal that his prior convictions under Missouri law\ndo not qualify as serious drug offenses, so he is not an armed career criminal, and that\nthe maximum punishment for his offense is therefore only ten years’ imprisonment.\nSee id. § 924(a)(2).\n\n In concluding that Hill was an armed career criminal, the district court cited\nfour prior convictions under Missouri Revised Statutes § 195.211.1 (1989), which\ncriminalized the distribution, delivery, manufacture, or production of a controlled\nsubstance. “Delivery” includes both the sale of a controlled substance and the “offer\ntherefor.” See Mo. Rev. Stat. §§ 195.010(8) and 195.010(36) (1997). Hill observes\nthat the definition of “serious drug offense” under § 924(e)(2)(A)(ii) requires an\noffense under state law “involving manufacturing, distributing, or possessing with\nintent to manufacture or distribute” a controlled substance. He argues that a state\ncrime involving merely an offer to sell drugs does not qualify.\n\n Hill’s argument is foreclosed by the reasoning of United States v. Bynum, 669\nF.3d 880 (8th Cir. 2012). There, we held that a knowing offer to sell drugs in\nMinnesota is a crime “involving” the distribution of drugs, because it is “related to\nor connected with” drug distribution. Id. at 886 (quoting United States v. Vickers,\n540 F.3d 356, 365 (5th Cir. 2008)). United States v. Wadena, 895 F.3d 1075 (8th Cir.\n2018), reiterated that an offer to sell drugs is a serious drug offense under the Act.\nId. at 1077. For the same reasons, the district court properly counted Hill’s\nconvictions under a Missouri statute that forbade an offer to sell controlled\nsubstances. With three prior convictions for a serious drug offense, Hill qualified as\n\n\n\n\n -2-\n\fan armed career criminal and was subject to the mandatory minimum term of fifteen\nyears’ imprisonment.\n\n The judgment of the district court is affirmed.\n ______________________________\n\n\n\n\n -3-\n[END_CASE]", "role": "user" } ]
4,580,411	UNITED STATES of America, Plaintiff - Appellee v. Jeremy D. TERRELL, Defendant - Appellant	United States v. Jeremy Terrell	2019-01-10	17-2929	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Wollman, Arnold, Benton", "parties": "", "opinions": [{"author": "BENTON, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-2929\n ___________________________\n\n United States of America\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n v.\n\n Jeremy D. Terrell\n\n lllllllllllllllllllllDefendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the Northern District of Iowa - Ft. Dodge\n ____________\n\n Submitted: October 19, 2018\n Filed: January 10, 2019\n ____________\n\nBefore WOLLMAN, ARNOLD, and BENTON, Circuit Judges.\n ____________\n\nBENTON, Circuit Judge.\n\n Jeremy D. Terrell pled guilty to conspiracy to distribute methamphetamine and\npossession with intent to distribute meth and “a mixture or substance containing a\ndetectable amount of cocaine” in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A),\n\f§ 841(b)(1)(C), 846, and 851. The district court1 denied the motion to suppress\nevidence from the wiretaps. He appeals. Having jurisdiction under 28 U.S.C. § 1291,\nthis court affirms.\n\n In 2014, Nebraska law enforcement began investigating a series of gang-\nrelated robberies. Terrell, an alleged member of the NIKE gang, was a “target\nsuspect.” In 2015, the county attorney for Douglas County, Nebraska submitted a\nwiretap application—not “signed and sworn”—to the Nebraska Attorney General.\nThe application sought to tap the phones of two members of the NIKE gang (not\nTerrell). It included extensive information about felony firearms violations, drug use\nand trafficking, robberies, and gang activity. The Attorney General recommended\ngranting it. The next day, the state court ordered the wiretap. It later extended it.\n\n In August 2015, after the first wiretap ended, the county attorney applied for\na wiretap on Terrell’s phones. The county attorney submitted another wiretap\napplication—again not “signed and sworn”—to the Nebraska Attorney General, who\nrecommended granting it. Four days later, the state court ordered the wiretap. It also\nwas extended.\n\n The second wiretap ended September 15. Terrell learned about the wiretaps\nfor the first time on October 26 during a proffer interview with law enforcement. He\nreceived written notice of the wiretaps in January 2016.\n\n Terrell contends the district court erred in denying his motion to suppress. This\ncourt reviews the district court’s factual findings for clear error, and its legal\nconclusions de novo. United States v. Lomeli, 676 F.3d 734, 738 (8th Cir. 2012).\n\n\n\n 1\n The Honorable Mark W. Bennett, United States District Judge for the\nNorthern District of Iowa.\n\n -2-\n\f I.\n\n Terrell believes the wiretaps and extensions were invalid because they were not\npreauthorized by the Nebraska Attorney General. The federal wiretap statute requires\nthat a federal prosecutor, before applying to a federal court for a wiretap, receive\nauthorization from the United States Attorney General (or a designee). See 18 U.S.C.\n§ 2516(1). Terrell argues this requirement applies to Nebraska’s state wiretap statute.\nIt does not.\n\n A “wiretap order issued by a state court must comply with state as well as\nfederal law.” United States v. Moore, 41 F.3d 370, 373 n.1 (8th Cir. 1994). When\nsought by a state prosecuting attorney, the federal statute requires that state-issued\nwiretaps comply with “applicable State statute.” See 18 U.S.C. § 2516(2). Under\nthe Nebraska wiretap statute, the Attorney General is required to give a\nrecommendation, not pre-authorization, to the district court. See Neb. Rev. Stat. §\n86-291 (“Within twenty-four hours of receipt by the office of the Attorney General\nof the application from the county attorney, the Attorney General or his or her\ndesignated deputy or assistant, as the case may be, shall state to the district court\nwhere the order is sought his or her recommendation as to whether the order should\nbe granted.”). The district court did not err in granting the wiretap applications\nwithout preauthorization from the Nebraska Attorney General.\n\n II.\n\n Terrell argues the wiretap applications were improper because they were not\nsworn under oath before submission to the Attorney General and were submitted by\na deputy county attorney rather than the principal county attorney. Both arguments\nare without merit.\n\n There is no requirement that wiretap applications be sworn under oath before\nsubmission to the Nebraska Attorney General. The Nebraska statute, like 18 U.S.C.\n\n -3-\n\f§ 2518(1), requires only that a wiretap application be sworn under oath before\npresentation to the judge, not the Attorney General. See Neb. Rev. Stat. § 86-293(1)\n(“Each application for an order authorizing or approving the interception of a wire,\nelectronic, or oral communication shall be made in writing upon oath or affirmation\nto a judge of a district court and shall state the applicant’s authority to make such\napplication.”).\n\n There also is no requirement that wiretap applications be submitted to the\nAttorney General by the principal county attorney. Although the federal wiretap\nstatute requires the “principal prosecuting attorney” of the state to submit the wiretap\napplication to the judge, there is no similar requirement for submission to the\nAttorney General. See 18 U.S.C. § 2518(2). Nebraska also does not have this\nrequirement. Nebraska law authorizes a county attorney to appoint one or more\ndeputies to assist in the discharge of official duties. See Neb. Rev. Stat. § 23-1204.\nNothing in the Nebraska wiretap statute prohibits deputy county attorneys from\nsubmitting wiretap applications to the Attorney General. See Neb. Rev. Stat. § 86-\n291. See also Thompson v. O’Grady, 290 N.W. 716, 718 (Neb. 1940) (holding that\na deputy county attorney has the authority under Nebraska law to sign a criminal\ninformation for the county attorney). The district court did not err in granting the\nwiretap applications despite these objections.\n\n\n\n III.\n\n Terrell asserts the first wiretap—which listed him as a target subject—lacked\nprobable cause. The Nebraska requirement for probable cause matches the federal\nrequirement. See Neb. Rev. Stat. § 86-293(3)(a)-(d); 18 U.S.C. § 2518 (3)(a)-(d).\nThe federal wiretap statue does not “prohibit the government from listing someone\nas a target subject even if probable cause is lacking as to that person.” United States\nv. Dunn, 723 F.3d 919, 927 (8th Cir. 2013). The district court did not err in finding\nprobable cause to wiretap Terrell’s co-conspirators: “Law enforcement officers had\n\n -4-\n\finformation from multiple sources that defendant and other members of a gang were\ninvolved in bank robberies and narcotics trafficking. The reliability of these sources\nwas corroborated.” Thus, Terrell properly was listed as a target subject. Id.\n\n Terrell also claims that the length of time from gathering the information until\nordering the wiretap made probable cause stale. The district court said “the mere\nlapse of time between information and its use in an affidavit is not controlling, a court\nmust also consider the nature of the criminal activity involved and whether such\nactivity is continuous or ongoing in nature.” A lapse in time is less significant when\nthe criminal activity is continuous and ongoing. See United States v. Jeanetta, 533\nF.3d 651, 655 (8th Cir. 2008) (“[W]here continuing criminal activity is suspected, the\npassage of time is less significant.”);United States v. Macklin, 902 F.2d 1320, 1326\n(8th Cir. 1990) (same). Here, because the criminal activity was continuous and\nongoing, the district court did not err in finding the probable-cause information was\nnot stale.\n\n IV.\n\n Terrell disputes that wiretaps were necessary on his phones and those of his co-\nconspirators. Under Nebraska law, a judge may approve a wiretap application if the\napplicant shows that “normal investigative procedures have been tried and have\nfailed or reasonably appear to be unlikely to succeed if tried or to be too dangerous.”\nNeb. Rev. Stat. § 86-293(3)(c). See 18 U.S.C. § 2518(3)(c) (containing similar\nlanguage). “Whether the statutory requirement is met is to be determined by the\nissuing judge in a commonsense manner, and the determination is a finding of fact,\nwhich can be reversed only if clearly erroneous.” United States v. Maxwell, 25 F.3d\n1389, 1394 (8th Cir. 1994). Terrell believes law enforcement failed to pursue several\ntraditional procedures before seeking a wiretap. But the necessity requirement does\nnot require the government to exhaust every available investigative technique.\nUnited States. v. Losing, 560 F.2d 906, 910 (8th Cir. 1977) (“Congress did not\nrequire the exhaustion of ‘specific’ or ‘all possible’ investigative techniques before\n\n -5-\n\fwiretap orders could be issued.”). Instead, “it is sufficient if there is evidence that\n‘normal investigative techniques . . . reasonably appear to be unlikely to succeed if\ntried.’” United States v. Williams, 124 F.3d 411, 418 (8th Cir. 1997), quoting 18\nU.S.C. § 2518(3)(c). The original wiretap affidavit detailed the investigative\ntechniques police used before applying for the wiretap and reasons why other\ntraditional procedures would be insufficient. The district did not clearly err in finding\nthe wiretaps were necessary.\n\n V.\n\n Terrell maintains the government failed to give him timely notice of the\nwiretaps. The Nebraska statute, like 18 U.S.C. § 2518(8)(d), requires that “the\npersons named in the order” receive notice of the wiretap within 90 days after “the\ntermination of the period of [a wiretap] order or extensions thereof.” See Neb. Rev.\nStat. § 86-293(9)(a).\n\n The county attorney did not give Terrell written notice of the wiretaps on his\nphones until 120 days after their termination. Terrell did, however, receive actual\nnotice of the wiretaps within the 90 days required by state statute. During a proffer\ninterview with law enforcement—86 days after the first wiretap ended—agents told\nTerrell they had intercepted his calls. This was sufficient. See Dunn, 723 F.3d at 927\n(holding that “actual notice” of interception is adequate). The district court did not\nerr when it found the government provided timely notice of the wiretaps.\n\n\n\n *******\n\n The judgment is affirmed.\n ______________________________\n\n\n\n\n -6-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4357664/", "author_raw": "BENTON, Circuit Judge."}]}	WOLLMAN	ARNOLD	BENTON	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4580411/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff - Appellee v. Jeremy D. TERRELL, Defendant - Appellant\nCourt: U.S. Court of Appeals for the Eighth Circuit\nDate decided: 2019-01-10\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-2929\n ___________________________\n\n United States of America\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n v.\n\n Jeremy D. Terrell\n\n lllllllllllllllllllllDefendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the Northern District of Iowa - Ft. Dodge\n ____________\n\n Submitted: October 19, 2018\n Filed: January 10, 2019\n ____________\n\nBefore WOLLMAN, ARNOLD, and BENTON, Circuit Judges.\n ____________\n\nBENTON, Circuit Judge.\n\n Jeremy D. Terrell pled guilty to conspiracy to distribute methamphetamine and\npossession with intent to distribute meth and “a mixture or substance containing a\ndetectable amount of cocaine” in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A),\n\f§ 841(b)(1)(C), 846, and 851. The district court1 denied the motion to suppress\nevidence from the wiretaps. He appeals. Having jurisdiction under 28 U.S.C. § 1291,\nthis court affirms.\n\n In 2014, Nebraska law enforcement began investigating a series of gang-\nrelated robberies. Terrell, an alleged member of the NIKE gang, was a “target\nsuspect.” In 2015, the county attorney for Douglas County, Nebraska submitted a\nwiretap application—not “signed and sworn”—to the Nebraska Attorney General.\nThe application sought to tap the phones of two members of the NIKE gang (not\nTerrell). It included extensive information about felony firearms violations, drug use\nand trafficking, robberies, and gang activity. The Attorney General recommended\ngranting it. The next day, the state court ordered the wiretap. It later extended it.\n\n In August 2015, after the first wiretap ended, the county attorney applied for\na wiretap on Terrell’s phones. The county attorney submitted another wiretap\napplication—again not “signed and sworn”—to the Nebraska Attorney General, who\nrecommended granting it. Four days later, the state court ordered the wiretap. It also\nwas extended.\n\n The second wiretap ended September 15. Terrell learned about the wiretaps\nfor the first time on October 26 during a proffer interview with law enforcement. He\nreceived written notice of the wiretaps in January 2016.\n\n Terrell contends the district court erred in denying his motion to suppress. This\ncourt reviews the district court’s factual findings for clear error, and its legal\nconclusions de novo. United States v. Lomeli, 676 F.3d 734, 738 (8th Cir. 2012).\n\n\n\n 1\n The Honorable Mark W. Bennett, United States District Judge for the\nNorthern District of Iowa.\n\n -2-\n\f I.\n\n Terrell believes the wiretaps and extensions were invalid because they were not\npreauthorized by the Nebraska Attorney General. The federal wiretap statute requires\nthat a federal prosecutor, before applying to a federal court for a wiretap, receive\nauthorization from the United States Attorney General (or a designee). See 18 U.S.C.\n§ 2516(1). Terrell argues this requirement applies to Nebraska’s state wiretap statute.\nIt does not.\n\n A “wiretap order issued by a state court must comply with state as well as\nfederal law.” United States v. Moore, 41 F.3d 370, 373 n.1 (8th Cir. 1994). When\nsought by a state prosecuting attorney, the federal statute requires that state-issued\nwiretaps comply with “applicable State statute.” See 18 U.S.C. § 2516(2). Under\nthe Nebraska wiretap statute, the Attorney General is required to give a\nrecommendation, not pre-authorization, to the district court. See Neb. Rev. Stat. §\n86-291 (“Within twenty-four hours of receipt by the office of the Attorney General\nof the application from the county attorney, the Attorney General or his or her\ndesignated deputy or assistant, as the case may be, shall state to the district court\nwhere the order is sought his or her recommendation as to whether the order should\nbe granted.”). The district court did not err in granting the wiretap applications\nwithout preauthorization from the Nebraska Attorney General.\n\n II.\n\n Terrell argues the wiretap applications were improper because they were not\nsworn under oath before submission to the Attorney General and were submitted by\na deputy county attorney rather than the principal county attorney. Both arguments\nare without merit.\n\n There is no requirement that wiretap applications be sworn under oath before\nsubmission to the Nebraska Attorney General. The Nebraska statute, like 18 U.S.C.\n\n -3-\n\f§ 2518(1), requires only that a wiretap application be sworn under oath before\npresentation to the judge, not the Attorney General. See Neb. Rev. Stat. § 86-293(1)\n(“Each application for an order authorizing or approving the interception of a wire,\nelectronic, or oral communication shall be made in writing upon oath or affirmation\nto a judge of a district court and shall state the applicant’s authority to make such\napplication.”).\n\n There also is no requirement that wiretap applications be submitted to the\nAttorney General by the principal county attorney. Although the federal wiretap\nstatute requires the “principal prosecuting attorney” of the state to submit the wiretap\napplication to the judge, there is no similar requirement for submission to the\nAttorney General. See 18 U.S.C. § 2518(2). Nebraska also does not have this\nrequirement. Nebraska law authorizes a county attorney to appoint one or more\ndeputies to assist in the discharge of official duties. See Neb. Rev. Stat. § 23-1204.\nNothing in the Nebraska wiretap statute prohibits deputy county attorneys from\nsubmitting wiretap applications to the Attorney General. See Neb. Rev. Stat. § 86-\n291. See also Thompson v. O’Grady, 290 N.W. 716, 718 (Neb. 1940) (holding that\na deputy county attorney has the authority under Nebraska law to sign a criminal\ninformation for the county attorney). The district court did not err in granting the\nwiretap applications despite these objections.\n\n\n\n III.\n\n Terrell asserts the first wiretap—which listed him as a target subject—lacked\nprobable cause. The Nebraska requirement for probable cause matches the federal\nrequirement. See Neb. Rev. Stat. § 86-293(3)(a)-(d); 18 U.S.C. § 2518 (3)(a)-(d).\nThe federal wiretap statue does not “prohibit the government from listing someone\nas a target subject even if probable cause is lacking as to that person.” United States\nv. Dunn, 723 F.3d 919, 927 (8th Cir. 2013). The district court did not err in finding\nprobable cause to wiretap Terrell’s co-conspirators: “Law enforcement officers had\n\n -4-\n\finformation from multiple sources that defendant and other members of a gang were\ninvolved in bank robberies and narcotics trafficking. The reliability of these sources\nwas corroborated.” Thus, Terrell properly was listed as a target subject. Id.\n\n Terrell also claims that the length of time from gathering the information until\nordering the wiretap made probable cause stale. The district court said “the mere\nlapse of time between information and its use in an affidavit is not controlling, a court\nmust also consider the nature of the criminal activity involved and whether such\nactivity is continuous or ongoing in nature.” A lapse in time is less significant when\nthe criminal activity is continuous and ongoing. See United States v. Jeanetta, 533\nF.3d 651, 655 (8th Cir. 2008) (“[W]here continuing criminal activity is suspected, the\npassage of time is less significant.”);United States v. Macklin, 902 F.2d 1320, 1326\n(8th Cir. 1990) (same). Here, because the criminal activity was continuous and\nongoing, the district court did not err in finding the probable-cause information was\nnot stale.\n\n IV.\n\n Terrell disputes that wiretaps were necessary on his phones and those of his co-\nconspirators. Under Nebraska law, a judge may approve a wiretap application if the\napplicant shows that “normal investigative procedures have been tried and have\nfailed or reasonably appear to be unlikely to succeed if tried or to be too dangerous.”\nNeb. Rev. Stat. § 86-293(3)(c). See 18 U.S.C. § 2518(3)(c) (containing similar\nlanguage). “Whether the statutory requirement is met is to be determined by the\nissuing judge in a commonsense manner, and the determination is a finding of fact,\nwhich can be reversed only if clearly erroneous.” United States v. Maxwell, 25 F.3d\n1389, 1394 (8th Cir. 1994). Terrell believes law enforcement failed to pursue several\ntraditional procedures before seeking a wiretap. But the necessity requirement does\nnot require the government to exhaust every available investigative technique.\nUnited States. v. Losing, 560 F.2d 906, 910 (8th Cir. 1977) (“Congress did not\nrequire the exhaustion of ‘specific’ or ‘all possible’ investigative techniques before\n\n -5-\n\fwiretap orders could be issued.”). Instead, “it is sufficient if there is evidence that\n‘normal investigative techniques . . . reasonably appear to be unlikely to succeed if\ntried.’” United States v. Williams, 124 F.3d 411, 418 (8th Cir. 1997), quoting 18\nU.S.C. § 2518(3)(c). The original wiretap affidavit detailed the investigative\ntechniques police used before applying for the wiretap and reasons why other\ntraditional procedures would be insufficient. The district did not clearly err in finding\nthe wiretaps were necessary.\n\n V.\n\n Terrell maintains the government failed to give him timely notice of the\nwiretaps. The Nebraska statute, like 18 U.S.C. § 2518(8)(d), requires that “the\npersons named in the order” receive notice of the wiretap within 90 days after “the\ntermination of the period of [a wiretap] order or extensions thereof.” See Neb. Rev.\nStat. § 86-293(9)(a).\n\n The county attorney did not give Terrell written notice of the wiretaps on his\nphones until 120 days after their termination. Terrell did, however, receive actual\nnotice of the wiretaps within the 90 days required by state statute. During a proffer\ninterview with law enforcement—86 days after the first wiretap ended—agents told\nTerrell they had intercepted his calls. This was sufficient. See Dunn, 723 F.3d at 927\n(holding that “actual notice” of interception is adequate). The district court did not\nerr when it found the government provided timely notice of the wiretaps.\n\n\n\n *******\n\n The judgment is affirmed.\n ______________________________\n\n\n\n\n -6-\n[END_CASE]", "role": "user" } ]
4,580,413	Shondel CHURCH; Randall Lee Dalton; Dorian Samuels; Viola Bowman; Brian Richman, Plaintiffs - Appellees v. State of MISSOURI; Michael L. Parson, in His Official Capacity as Governor of the State of Missouri, Defendants - Appellants Michael Barrett; H. Riley Bock; Charles R. Jackson; Craig Chval; A. Crista Hogan, Defendants	Shondel Church v. State of Missouri	2019-01-10	17-2857	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Gruender, Melloy, Benton", "parties": "", "opinions": [{"author": "BENTON, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-2857\n ___________________________\n\nShondel Church; Randall Lee Dalton; Dorian Samuels; Viola Bowman; Brian Richman\n\n lllllllllllllllllllllPlaintiffs - Appellees\n\n v.\n\n State of Missouri; Michael L. Parson,1 in his official capacity as Governor of the\n State of Missouri\n\n lllllllllllllllllllllDefendants - Appellants\n\nMichael Barrett; H. Riley Bock; Charles R. Jackson; Craig Chval; A. Crista Hogan\n\n lllllllllllllllllllllDefendants\n ____________\n\n Appeal from United States District Court\n for the Western District of Missouri - Jefferson City\n ____________\n\n Submitted: April 10, 2018\n Filed: January 10, 2019\n ____________\n\nBefore GRUENDER, MELLOY, and BENTON, Circuit Judges.\n ____________\n\n\n 1\n While this appeal was pending, Eric R. Greitens resigned as governor of\nMissouri. His successor, Michael L. Parson, is automatically substituted under\nFederal Rule of Appellate Procedure 43(c)(2). See Digital Recognition Network, Inc.\nv. Hutchinson, 803 F.3d 952, 952 n.1 (8th Cir. 2015).\n\fBENTON, Circuit Judge.\n\n This is a class action against the State and governor of Missouri, the director of\nthe Missouri State Public Defender office, and the commissioners of the Missouri\nState Public Defender Commission. The plaintiffs alleged that the State “has failed\nto meet its constitutional obligation to provide indigent defendants with meaningful\nrepresentation.” Invoking sovereign immunity, the State and governor moved to\ndismiss. The governor also invoked legislative immunity. The district court denied\nthe motion. Church v. Missouri, 268 F. Supp. 3d 992 (W.D. Mo. 2017). The director\nand commissioners do not appeal. Having jurisdiction under 28 U.S.C. § 1291\nthrough the collateral order doctrine,2 this court reverses and remands.\n\n I.\n\n The Sixth Amendment guarantees indigent defendants in criminal cases the\nright to appointed counsel. Gideon v. Wainwright, 372 U.S. 335, 344-45 (1963).\nBecause the right to counsel is “fundamental and essential to a fair trial,” it is\n“protected against state invasion by the Due Process Clause of the Fourteenth\nAmendment.” Id. at 341-42.\n\n The State usually provides counsel through the Missouri State Public Defender.\nSee State ex rel. Missouri Pub. Def. Comm’n v. Pratte, 298 S.W.3d 870, 875 (Mo.\nbanc 2009) (indigent defense is “a duty which constitutionally is the burden of the\nState,” and “[w]hen a defendant is found to be indigent in Missouri, the defendant’s\nSixth Amendment right to counsel is usually met by the judge appointing the ‘Office\nof State Public Defender’”) (citation omitted). Here, the plaintiffs “were all charged\n\n 2\n See Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S.\n139, 147 (1993); Fryberger v. University of Ark., 889 F.3d 471, 473 (8th Cir. 2018);\nMcDonough Assocs., Inc. v. Grunloh, 722 F.3d 1043, 1048 (7th Cir. 2013); Scott v.\nTaylor, 405 F.3d 1251, 1253 (11th Cir. 2005).\n\n -2-\n\fwith crimes in Missouri state court and, as a result of their indigency, were entitled to\nrepresentation by the MSPD.” They bring this lawsuit “on behalf of themselves and\na putative class of all indigent defendants in criminal and juvenile proceedings in\nMissouri who are eligible for representation by the MSPD.” The putative class does\nnot include individuals seeking post-conviction relief. See Mo. Sup. Ct. R. 24.035(e),\n29.15(e) (requiring appointment of counsel for all pro se, indigent, post-conviction\nmovants).\n\n The plaintiffs allege: “The State’s indigent defense budget is shockingly\ninadequate. . . . Without sufficient funding, overstretched and under-resourced\n[MSPD] attorneys are forced to handle far too many cases and to devote far too few\nhours to each case.” They argue they “have suffered and continue to suffer the denial\nof adequate counsel at critical stages of their criminal cases due to these systemic\ncaseload problems among MSPD attorney.” They seek “a declaratory judgment\nstating that their right to counsel is being violated and an order enjoining the ongoing\nviolation of their rights and requiring Defendants to propose a remedial plan to the\ncourt.”\n\n II.\n\n The State of Missouri invokes sovereign immunity for itself. “This court\nreviews de novo questions of sovereign immunity.” Fryberger, 889 F.3d at 473.\n“Sovereign immunity is the privilege of the sovereign not to be sued without its\nconsent.” Virginia Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 253 (2011).\nThe Eleventh Amendment is “one particular exemplification of that immunity.”\nFederal Mar. Comm’n v. South Carolina State Ports Auth., 535 U.S. 743, 753\n(2002). The State removed this case to federal court, waiving its Eleventh\nAmendment immunity. See Lapides v. Board of Regents of Univ. Sys. of Ga., 535\nU.S. 613, 624 (2002) (“We conclude that the State’s action joining the removing of\nthis case to federal court waived its Eleventh Amendment immunity”).\n\n -3-\n\f But “[s]tates also enjoy a broader sovereign immunity, which applies against\nall private suits, whether in state or federal court.” Beaulieu v. Vermont, 807 F.3d\n478, 483 (2d Cir. 2015), citing Alden v. Maine, 527 U.S. 706, 713 (1999) (“We have\n. . . sometimes referred to the States’ immunity from suit as ‘Eleventh Amendment\nimmunity.’ The phrase is convenient shorthand but something of a misnomer, for the\nsovereign immunity of the States neither derives from, nor is limited by, the terms of\nthe Eleventh Amendment.”). The Supreme Court “has repeatedly held that the\nsovereign immunity enjoyed by the States extends beyond the literal text of the\nEleventh Amendment.” Fed. Mar. Comm’n, 535 U.S. at 754.\n\n “The preeminent purpose of state sovereign immunity is to accord States the\ndignity that is consistent with their status as sovereign entities.” Id. at 760.\nDeveloped at common law, “immunity from suit is a fundamental aspect of the\nsovereignty which the States enjoyed before the ratification of the Constitution.”\nAlden, 527 U.S. at 713. See also Nevada v. Hall, 440 U.S. 410, 414-16 (1979)\n(explaining sovereign immunity’s common-law origins). “States entered the Union\nwith their sovereign immunity intact, unlimited by Article III’s jurisdictional grant.”\nStewart, 563 U.S. at 253. “The leading advocates of the Constitution assured the\npeople in no uncertain terms that the Constitution would not strip the States of\nsovereign immunity.” Alden, 527 U.S. at 716. “The founding generation thought it\n‘neither becoming nor convenient that the several States of the Union, invested with\nthat large residuum of sovereignty which had not been delegated to the United States,\nshould be summoned as defendants to answer the complaints of private persons.’” Id.\nat 748, quoting In re Ayers, 123 U.S. 443, 505 (1887).\n\n “[N]either logic nor precedent supports the proposition that a state waives its\ngeneral state sovereign immunity by removing an action from state court to federal\ncourt.” Beaulieu, 807 F.3d at 486. Missouri’s state sovereign immunity applies\nunless “it is waived or a statutory or recognized common law exception, such as\n\n -4-\n\fconsent, is applicable.” Metropolitan St. Louis Sewer Dist. v. City of Bellefontaine\nNeighbors, 476 S.W.3d 913, 914 (Mo. banc 2016). The plaintiffs assert both a waiver\nand a common-law exception, contending that sovereign immunity does not apply in\nMissouri when a plaintiff seeks prospective equitable relief to enforce the State’s\naffirmative duty or obligation.\n\n A.\n\n Courts “give effect” to a state’s waiver of sovereign immunity “only where\nstated by the most express language or by such overwhelming implication from the\ntext as [will] leave no room for any other reasonable construction.’” Port Auth.\nTrans-Hudson Corp. v. Feeney, 495 U.S. 299, 305 (1990), quoting Atascadero State\nHosp. v. Scanlon, 473 U.S. 234, 239-40 (1985). Express language does appear in\nsection 537.600, RSMo 2016, which “carve[s] out limited exceptions [for negligent\noperation of motor vehicles and dangerous conditions of public property] to a general\nrule of immunity.” Bellefontaine, 476 S.W.3d at 921.\n\n Emphasizing two Missouri Court of Appeals opinions, the plaintiffs argue that\nsovereign immunity does not bar a claim for equitable relief to enforce the State’s\naffirmative “duty or obligation.” In Wyman v. Missouri Department of Mental Health,\n376 S.W.3d 16, 23 (Mo. App. 2012), the court of appeals said it “found no case which\napplies § 537.600 to a claim seeking only equitable relief.” The Court of Appeals then\nstated that “sovereign immunity does not necessarily bar a claim for injunctive relief\nwhich seeks to reverse a state agency’s prior violation of its statutory obligations, or\nto prevent future violations.” Wyman, 376 S.W.3d at 23. In 2018, the Court of\nAppeals–citing the district court’s decision here–quoted and followed Wyman.\nMissouri State Conf. of NAACP v. State, 2018 WL 5492832, at 6 (Mo. App. Oct.\n30, 2018).\n\n\n\n\n -5-\n\f Both the Wyman and NAACP opinions fail to address the abundant contrary\nMissouri authority on sovereign immunity. In 2016 and 2017, the Supreme Court of\nMissouri stated: “Sovereign immunity is the rule, not the exception.” Bellefontaine,\n476 S.W.3d at 914; Newsome v. Kansas City Mo. Sch. Dist., 520 S.W.3d 769, 775\n(Mo. banc 2017). Of critical importance here, the Missouri Supreme Court held that\n\n in the absence of an express statutory exception to sovereign immunity,\n or a recognized common law exception such as the proprietary function\n and consent exceptions, sovereign immunity is the rule and applies to all\n suits against public entities.\n\nBellefontaine, 476 S.W.3d at 921-22 (emphasis added). Because—except for\nstatutory and common-law exceptions—sovereign immunity bars all suits against the\nState, it bars suits for prospective equitable relief.\n\n The plaintiffs claim that Bellefontaine covers only suits for damages because\nthat is all the plaintiff there sought. To the contrary, Bellefontaine follows the long-\nestablished Missouri precedent on sovereign immunity. Granting injunctive relief\nagainst an unconstitutional law in 1908, the Missouri Supreme Court held:\n\n That the sovereign state may not be sued is a truism . . . . But\n defendants . . . . ministerial officers, charged to be about to do irreparable\n injury . . . . are not beyond the strong arm of a court of equity.\n\nMerchants’ Exchange of St. Louis v. Knott, 111 S.W. 565, 574 (Mo. banc 1908)\n(agreeing with the Ex parte Young doctrine for state injunction cases just two months\nafter the United States Supreme Court’s decision). The Missouri Supreme Court has\nrepeatedly followed this approach.\n\n The amenability of respondents as executive or administrative officers\n of the State to the restrictive power of the courts in a proceeding of this\n character has been frequently declared in a number of cases . . . . It is not\n\n -6-\n\f to be understood from these cases that the state itself can be enjoined;\n but, when its officers act in an unconstitutional or illegal manner they are\n not to be regarded as acting for the state, and they may be enjoined.\n\nCarson v. Sullivan, 223 S.W. 571, 571 (Mo. banc 1920) (citing several cases\nincluding Merchants’ Exchange and Ex parte Young). See, e.g., Nacy v. Le Page,\n111 S.W.2d 25, 25–26 (Mo. banc 1937) (“because the state may not be sued without\nits consent” and because a garnishment “seeks to compel action on the part of the\nstate,” a state court may not require the State to submit to a legal writ of garnishment)\n(changed by § 525.310, RSMo 1943); State ex rel. Eagleton v. Hall, 389 S.W.2d 798,\n801 (Mo. banc 1965) (a will-contest suit affecting residuary estate left to state is a suit\nagainst the state, thus barred by sovereign immunity) , quoted in Bellefontaine, 476\nS.W.3d at 921; Garland v. Ruhl, 455 S.W.3d 442, 446 (Mo. banc 2015) (even when\na statute authorizes award of attorney fees against the state, sovereign immunity\nprevents ordering the state to do so, due to strict construction of the statute).\n\n Because the two Court of Appeals opinions have a limited consideration of\ncontrolling Missouri Supreme Court cases and fail even to address contrary authority,\nthe Wyman and NAACP cases are not instructive as to how the Missouri Supreme\nCourt would decide the sovereign immunity issue in this case. See United Fire &\nCas. Co. v. Titan Contractors Serv., Inc., 751 F.3d 880, 885 n.2 (8th Cir. 2014).\n\n The plaintiffs cite five cases where the Missouri Supreme Court affirmed\ninjunctions directed at the State. See Weinschenk v. State, 203 S.W.3d 201, 205 (Mo.\nbanc 2006); Brooks v. State, 128 S.W.3d 844, 851 (Mo. banc 2004); Rolla 31 Sch.\nDist. v. State, 837 S.W.2d 1, 7 (Mo. banc 1992); Pohl v. State Highway Comm’n, 431\nS.W.2d 99, 107 (Mo. banc 1968); Koplar v. State Tax Comm’n, 321 S.W.2d 686, 697\n(Mo. 1959). These five cases, plaintiffs assert, show it is “perfectly ordinary” to\nenjoin the State itself to force compliance with its obligations.\n\n\n\n\n -7-\n\f First, in the three most recent cases, state officials–subject to Missouri’s Ex\nparte Young doctrine–were also named as defendants. Weinschenk, 203 S.W.3d at\n204 n.1 (secretary of state); Brooks, 128 S.W.3d at 846 (attorney general); Rolla, 837\nS.W.2d at 2 & n. 2 (naming the “various state officials” who were defendants). The\nPohl case is an “injunction suit by taxpayers.” Pohl, 431 S.W.2d at 100. See\nManzara v. State, 343 S.W.3d 656, 658-59 (Mo. banc 2011) (reviewing history of\ntaxpayer suits since 1873 and holding “when a public interest is involved and public\nmonies are being expended for an illegal purpose, taxpayers have the right to enjoin\nthe action” so “government officials conform to the dictates of the law”). The Koplar\ncase is a judicial review of administrative decisions under the Missouri Administrative\nProcedure Act–specifically held to be a “waiver of sovereign immunity.” See St.\nLouis County v. State, 424 S.W.3d 450, 454 n.3 (Mo. banc 2014) (statute authorizing\njudicial review of administrative decisions is a waiver of sovereign immunity). As a\nresult, none of these five cases even hint at the threshold question presented here:\nwhether Missouri’s sovereign immunity covers suits for prospective equitable relief.\n“Questions which merely lurk in the record, neither brought to the attention of the\ncourt nor ruled upon, are not to be considered as having been so decided as to\nconstitute precedents.” Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 170\n(2004). See also Byrne & Jones Enters., Inc. v. Monroe City R-1 Sch. Dist., 493\nS.W.3d 847, 855 (Mo. banc 2016) (“Judicial decisions must be construed with\nreference to the facts and issues of the particular case, and that the authority of the\ndecision as a precedent is limited to those points of law which are raised by the record,\nconsidered by the court, and necessary to a decision.”) (citation omitted).\n\n Second, adopting the plaintiffs’ view creates a judicial exception to sovereign\nimmunity. But Bellefontaine rejects that, explaining it would “not judicially create an\nexception to the common law rule of sovereign immunity” to address the specific\nsituation there because the issue presented “policy concerns . . . for the legislature.”\nBellefontaine, 476 S.W.3d at 923. The legislature—not the judiciary—must waive\nsovereign immunity. Id. at 921 (“This Court cannot read into the statute an exception\n\n -8-\n\fto sovereign immunity or imply waivers not explicitly created in the statute.”). See\nalso Winston v. Reorganized Sch. Dist. R-2, Lawrence Cnty., 636 S.W.2d 324, 328\n(Mo. banc 1982) (“[W]e are mindful of the oft repeated principle that, within\nconstitutional limits, a sovereign may prescribe the terms and conditions under which\nit may be sued, and the decision to waive immunity, and to what extent it is waived,\nlies within the legislature’s purview.”). The parties have not cited a Missouri statute\nthat waives sovereign immunity for prospective equitable relief. The five cases they\ncite, Wyman/NAACP, or other states’ decisions cannot serve as a substitute.\n\n True, Bellefontaine does not address the precise issue here. But it says that\nsovereign immunity “is the rule—not the exception—even in the absence of prior\ncases specifically addressing this issue.” Bellefontaine, 476 S.W.3d at 922. “When\nthere is no state supreme court case directly on point, our role is to predict how the\nstate supreme court would rule if faced with the [same issue] before us.” Blankenship\nv. USA Truck, Inc., 601 F.3d 852, 856 (8th Cir. 2010) (alteration in original) (citation\nomitted). See also Craven v. University of Colo. Hosp. Auth., 260 F.3d 1218, 1231\n(10th Cir. 2001) (applying the same rule to a sovereign immunity issue). This court\npredicts that the Missouri Supreme Court would apply Bellefontaine’s long-\nestablished principles to cases involving prospective equitable relief. Missouri does\nnot have a waiver of sovereign immunity for prospective equitable relief “stated by\nthe most express language or by such overwhelming implication from the text as [will]\nleave no room for any other reasonable construction.” Feeney, 495 U.S. at 305.\n\n B.\n\n Plaintiffs also assert a recognized common law exception to sovereign\nimmunity. See Bellefontaine, 476 S.W.3d at 921-22 (stating sovereign immunity\napplies to all suits, in the absence of a recognized common law exception). The\nBellefontaine case notes two such exceptions, consent and “proprietary function” (of\nmunicipalities). Id. Neither of these apply here.\n\n -9-\n\f Citing Blackstone, law review articles, a common-law case, and other state\ncourts, the plaintiffs argue that “even at common law, courts of equity enforced the\nCrown’s obligations.” See generally Armstrong v. Exceptional Child Ctr., Inc., 135\nS. Ct. 1378, 1384 (2015) (“It is true enough that we have long held that federal courts\nmay in some circumstances grant injunctive relief against state officers who are\nviolating, or planning to violate, federal law. . . . The ability to sue to enjoin\nunconstitutional actions by state and federal officers is the creation of courts of equity,\nand reflects a long history of judicial review of illegal executive action, tracing back\nto England.”) (emphasis added), citing Young, 209 U.S. at 150-51 (other citations\nomitted).\n\n The State counters, with arguments based on the “law or equity” phrase in the\nEleventh Amendment and the Supreme Court’s words in an Eleventh Amendment\ncase that\n\n sovereign immunity applies regardless of whether a private plaintiff’s\n suit is for monetary damages or some other type of relief. See [Seminole\n Tribe of Fla. v. Florida, 517 U.S. 44, 58 (1996)] (“[W]e have often made\n it clear that the relief sought by a plaintiff suing a State is irrelevant to\n the question whether the suit is barred by the Eleventh Amendment”).\n\n\nFed. Mar. Comm’n, 535 U.S. at 765-66 (emphasis added).\n\n These expertly briefed arguments are beside the point. The Missouri Supreme\nCourt is the “custodian” of the common law in Missouri. Townsend v. Townsend,\n708 S.W.2d 646, 649-50 (Mo. banc 1986). That Court has rejected that “the state\nitself can be enjoined.” Carson, 223 S.W. at 571, following Merchants’ Exchange,\n111 S.W. at 574. A recognized common law exception to Missouri’s sovereign\nimmunity does not apply here.\n\n\n -10-\n\f III.\n\n The plaintiffs argue that even if sovereign immunity bars prospective injunctive\nrelief, the State “can be sued directly for equitable relief for failing to comply with a\nfederal constitutional obligation, here, the Sixth Amendment.” They stress First\nEnglish Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987),\nand Reich v. Collins, 513 U.S. 106 (1994).\n\n In First English, the Supreme Court stated it “has frequently repeated the view\nthat, in the event of a taking, the compensation remedy is required by the\nConstitution.” First English, 482 U.S. at 316. It footnoted:\n\n The Solicitor General urges that the prohibitory nature of the Fifth\n Amendment, combined with principles of sovereign immunity,\n establishes that the Amendment itself is only a limitation on the power\n of the Government to act, not a remedial provision. The cases cited in\n the text, we think, refute the argument of the United States that “the\n Constitution does not, of its own force, furnish a basis for a court to\n award money damages against the government.”\n\nId. at 316 n.9 (citations omitted). In Reich, the Court explained that “a long line of\ncases” establishes that “due process requires a ‘clear and certain’ remedy for taxes\ncollected in violation of federal law,” and that “a denial by a state court of a recovery\nof taxes exacted in violation of the laws or Constitution of the United States by\ncompulsion is itself in contravention of the Fourteenth Amendment, the sovereign\nimmunity States traditionally enjoy in their own courts notwithstanding.” Reich, 513\nU.S. at 108, 109-110 (citations and internal quotation marks omitted).\n\n According to the plaintiffs, these cases (particularly the footnote in First\nEnglish) mean that “where the Constitution places an affirmative obligation on the\n\n\n -11-\n\fState itself, the State cannot rely on state sovereign immunity to defeat a suit that aims\nto force it to comply with that obligation.” But that is too broad a reading. Instead,\nthe cases mean that “where the Constitution requires a particular remedy, such as\nthrough the Due Process Clause for the tax monies at issue in Reich, or through the\nTakings Clause as indicated in First English, the state is required to provide that\nremedy in its own courts, notwithstanding sovereign immunity.” DLX, Inc. v.\nKentucky, 381 F.3d 511, 528 (6th Cir. 2004) (emphasis added). For the situation at\nissue here, the Constitution does not require a “particular” or “clear and certain”\nremedy.\n\n Congress may also abrogate state sovereign immunity by providing an\nenforcement mechanism for constitutional violations:\n\n We have held also that in adopting the Fourteenth Amendment, the\n people required the States to surrender a portion of the sovereignty that\n had been preserved to them by the original Constitution, so that Congress\n may authorize private suits against nonconsenting States pursuant to its\n § 5 enforcement power. By imposing explicit limits on the powers of the\n States and granting Congress the power to enforce them, the Amendment\n fundamentally altered the balance of state and federal power struck by\n the Constitution. When Congress enacts appropriate legislation to\n enforce this Amendment, federal interests are paramount, and Congress\n may assert an authority over the States which would be otherwise\n unauthorized by the Constitution.\n\nAlden, 527 U.S. at 756 (internal citations and quotation marks omitted). See also\nUnited States v. Georgia, 546 U.S. 151, 159 (2006) (“insofar as Title II [of the ADA]\ncreates a private cause of action for damages against the States for conduct that\nactually violates the Fourteenth Amendment, Title II validly abrogates state sovereign\nimmunity.”). No statutory enforcement mechanism exists here.\n\n\n\n\n -12-\n\f IV.\n\n The governor asserts sovereign immunity. The plaintiffs argue that sovereign\nimmunity does not shield the governor because he is an Ex parte Young defendant.\n“Under the Ex Parte Young doctrine, a private party can sue a state officer in his\nofficial capacity to enjoin a prospective action that would violate federal law.” 281\nCare, 638 F.3d at 632. The doctrine “rests on the premise—less delicately called a\n‘fiction’—that when a federal court commands a state official to do nothing more than\nrefrain from violating federal law, he is not the State for sovereign-immunity\npurposes.” Stewart, 563 U.S. at 255 (internal citation omitted). See also Hutchinson,\n803 F.3d at 957 (“Enforcement of unconstitutional legislation ‘is simply an illegal act\nupon the part of [the] state official,’ and the State may not immunize officials from\nsuit for such violations of the Constitution.”), quoting Young, 209 U.S. at 159.\n\n “In determining whether this exception applies, a court conducts ‘a\nstraightforward inquiry into whether [the] complaint alleges [1] an ongoing violation\nof federal law and [2] seeks relief properly characterized as prospective.’” 281 Care,\n638 F.3d at 632, quoting Verizon Maryland, Inc. v. Public Serv. Comm’n of\nMaryland, 535 U.S. 635, 645 (2002) (alterations added). On the first inquiry, the\nofficial must have “some connection to the enforcement of the challenged laws.”\nCalzone v. Hawley, 866 F.3d 866, 869 (8th Cir. 2017), citing Young, 209 U.S. at 157.\nSee also 281 Care, 638 F.3d at 632. “Without that connection, the officer would be\nsued merely ‘as a representative of the state’ in an impermissible attempt to ‘make the\nstate a party.’” Hutchinson, 803 F.3d at 960, quoting Young, 209 U.S. at 157.\n“[T]hat connection does not need to be primary authority to enforce the challenged\nlaw.” 281 Care, 638 F.3d at 632. “Nor does the [state officer] need to have the full\npower to redress a plaintiff’s injury in order to have ‘some connection’ with the\nchallenged law.” Id. at 633.\n\n\n\n\n -13-\n\f Ruling that the governor is an Ex parte Young defendant, the district court\nidentified three connections to the enforcement of the State’s Sixth Amendment\nobligation to provide indigent defendants with adequate counsel.\n\n A.\n\n The district court noted the governor’s general-enforcement authority. The\nMissouri Constitution says, “The supreme executive power shall be vested in a\ngovernor,” and “The governor shall take care that the laws are distributed and\nfaithfully executed, and shall be a conservator of the peace throughout the state.” Mo.\nConst. art. IV, §§ 1-2. The district court also cited a Missouri statute: “When\ndirected by the governor, the attorney general, or one of his assistants, shall aid any\nprosecuting or circuit attorney in the discharge of their respective duties in the trial\ncourts and in examinations before grand juries . . . .” § 27.030, RSMo.\n\n The district court concluded that these provisions make the Missouri governor\nlike the Georgia governor in Luckey v. Harris, 860 F.2d 1012 (11th Cir. 1988). There,\nindigent defendants sought injunctive relief against a governor to remedy Sixth\nAmendment violations. Luckey, 860 F.2d at 1013. The Eleventh Circuit held that\nGeorgia’s governor had “some connection” and was an “appropriate part[y] against\nwhom prospective relief could be ordered” because:\n\n According to the Georgia constitution, the governor is responsible for\n law enforcement in that state and is charged with executing the laws\n faithfully. The governor further has the residual power to commence\n criminal prosecutions, and has the final authority to direct the Attorney\n General to “institute and prosecute” on behalf of the state.\n\nId. at 1016 (internal citations omitted).\n\n\n\n\n -14-\n\f The governor here argues that this court’s Calzone decision trumps Luckey.\nThe Calzone plaintiff sought an injunction against the Missouri governor in a\nchallenge to the constitutionality of a state statute. Calzone, 866 F.3d at 869. This\ncourt held that neither the statute nor the Missouri Constitution’s general-enforcement\nprovision make the governor an Ex parte Young defendant:\n\n No provision in Chapter 304 or the statutes defining his executive\n authority specifically authorizes the governor to enforce the vehicle\n inspection statutes. See Mo. Rev. Stat. § 26.010-.225. The Missouri\n Constitution confers upon the governor the duty to “take care that the\n laws are distributed and faithfully executed,” Mo. Const. art. IV, § 2, but\n such a general executive responsibility is an insufficient connection to\n the enforcement of a statute to avoid the Eleventh Amendment. See Fitts\n v. McGhee, 172 U.S. 516, 530 (1899).\n\nId. at 870.\n\n The plaintiffs try to distinguish Calzone because the statute there “delegated\nenforcement exclusively to the superintendent of the highway patrol,” meaning “[t]he\nGovernor was not a proper defendant because he has no connection to the statute. . . .\nUnlike the statute in Calzone, the State’s constitutional obligation to provide adequate\ncounsel—and the Governor’s role in its failure to do so—cannot be delegated\nexclusively to the MSPD.”\n\n Although Calzone is factually distinguishable, its guidance on the Missouri\ngovernor’s general-enforcement authority is consistent with this court’s precedent.\nSee Hutchinson, 803 F.3d at 961; Citizens for Equal Protection v. Bruning, 455 F.3d\n859 (8th Cir. 2006), abrogated on other grounds by Obergefell v. Hodges, 135 S. Ct.\n2584 (2015).\n\n In Bruning, the Nebraska governor and attorney general were Ex parte Young\ndefendants in a suit to enjoin enforcement of a state constitutional amendment.\n\n -15-\n\fBruning, 455 F.3d at 864. This court found a sufficient connection to the\nenforcement of the amendment because “the Governor and the Attorney General have\nbroad powers to enforce the State’s Constitution and statutes.” Id. The Hutchinson\ndecision clarifies that statement from Bruning:\n\n [T]he court’s statement [in Bruning] must be read in context. In\n Bruning, the “broad powers” of the officials included authority to\n enforce the constitutional amendment at issue. The Nebraska attorney\n general has power to enforce the Nebraska Constitution by bringing suit\n for a declaratory judgment that a state statute is unconstitutional, or for\n an injunction prohibiting the enforcement of a state statute on the\n grounds that it is unconstitutional. The Nebraska governor has some\n connection to the enforcement of the Nebraska Constitution because he\n may direct the attorney general to file suit to enjoin application of an\n unconstitutional state statute. That sort of enforcement authority is\n lacking with respect to [the] statute [at issue in Hutchinson] that provides\n only for private civil enforcement.\n\nHutchinson, 803 F.3d at 961 (internal citations omitted).\n\n The Bruning and Hutchinson decisions mean that a governor’s general-\nenforcement authority is “some connection” if that authority gives the governor\nmethods of enforcement. The governor in Bruning had a method of enforcement\nbecause he could direct the attorney general to seek equitable relief. But the\ngovernors in Calzone and Hutchinson did not have a comparable enforcement\nmechanism.\n\n Nor does the governor here. The district court’s reliance on section 27.030 is\ninsufficient because that provision covers aiding prosecution, not defense. The\ngovernor’s general-enforcement authority is not “some connection” to enforcement\nof the State’s Sixth Amendment obligation. See Calzone, 866 F.3d at 870. See also\nAir Evac EMS, Inc. v. Texas, Dep’t of Ins., Div. of Workers’ Comp., 851 F.3d 507,\n\n\n -16-\n\f517 (5th Cir. 2017) (“[A] state governor with a broad duty to uphold state law is not\na proper defendant.”); Los Angeles Cnty. Bar Ass’n v. Eu, 979 F.2d 697, 704 (9th\nCir. 1992) (“[A] generalized duty to enforce state law or general supervisory power\nover the persons responsible for enforcing the challenged provision will not subject\nan official to suit.”); Shell Oil Co. v. Noel, 608 F.2d 208, 211 (1st Cir. 1979) (“The\nmere fact that a governor is under a general duty to enforce state laws does not make\nhim a proper defendant in every action attacking the constitutionality of a state\nstatute.”).\n\n B.\n\n The district court ruled the governor had “some connection” because he\n“appoints all seven members of the MSPD Commission.” Church, 268 F. Supp. 3d\nat 1013, citing § 600.015.1, RSMo (“The commission shall be composed of seven\nmembers . . . appointed by the governor with the advice and consent of the senate.”).\nThe district court cited the Ninth Circuit’s decision in Eu, where a bar association sued\na governor to challenge a state statute that limited the number of judges in a county.\nEu, 979 F.2d at 699. The governor had “a duty to appoint judges to any\nnewly-created judicial positions,” which the Ninth Circuit considered to be “a specific\nconnection to the challenged statute,” placing the governor within Ex parte Young’s\nscope. Id. at 704.\n\n Invoking Eu, the plaintiffs argue: “although the Governor alone cannot solve\nthe indigent defense crisis in this state, his role in the ongoing violation of those Sixth\nAmendment rights through his appointment of MSPD Commissioners, in addition to\nhis ability to profoundly affect MSPD caseload, is sufficient for Ex parte Young\npurposes.” The governor counters with this court’s decision in Balogh v. Lombardi,\n816 F.3d 536 (8th Cir. 2016).\n\n\n\n\n -17-\n\f In Balogh, a Missouri statute gave a private right of action against anyone who,\nwithout the approval of the Director of Corrections, knowingly discloses the identity\nof an execution-team member. Balogh, 816 F.3d at 539. The statute also gave the\ndirector authority to select those members. Id. This court ruled that the director’s\nselection authority is only “administrative or ministerial,” and not “some connection”\nto the statute’s enforcement:\n\n Although the director’s authority to delineate the members of the\n execution team does affect who might have a private right of action\n against [someone disclosing the identity of execution team members], it\n has nothing to do with an execution team member’s potential prosecution\n of such an action. Selection of the execution team constitutes\n implementation of the statute in an administrative or ministerial sense\n and is not analogous to enforcing the statute’s non-disclosure provision\n through a civil or criminal prosecution. The director’s authority to\n define the members of the execution team is not an enforcement action\n within the meaning of Ex Parte Young and its progeny.\n\nId. at 546.\n\n Like in Balogh, appointing members of the MSPD Commission is an\nadministrative act. See State ex rel. Sikes v. Williams, 121 S.W. 64, 65 (Mo. banc\n1909) (“The confirmations by the Senate of appointments made by the Governor are\nnot legislative acts . . . . Such acts by the Governor concerning appointments are\nmerely administrative . . . .”). It does not give the governor some connection to the\nState’s Sixth Amendment obligation. The Balogh decision, not Eu, binds this court.\n\n C.\n\n The district court concluded the governor met the “some connection”\nrequirement because of his appropriation-reduction authority:\n\n\n\n -18-\n\f Governor Greitens’s predecessor, Governor Nixon, affirmatively used\n his executive authority to withhold roughly $7 million in funding\n allocated by the Missouri Legislature to the MSPD, thereby\n demonstrating an even more direct “connection” to the challenged\n conduct. Governor Greitens has since upheld Governor Nixon's\n withholding of funds allocated to the MSPD.\n\nChurch, 268 F. Supp. 3d at 1012-13 (internal citation omitted). In addition to arguing\nthat his appropriation-reduction authority is not “some connection”, the governor\nasserts legislative immunity.\n\n “[S]tate legislators enjoy common-law immunity from liability for their\nlegislative acts.” Supreme Court of Va. v. Consumers Union of U. S., Inc., 446 U.S.\n719, 732 (1980). “[O]fficials outside the legislative branch are entitled to legislative\nimmunity when they perform legislative functions.” Bogan v. Scott–Harris, 523 U.S.\n44, 55 (1998). “Whether an act is legislative turns on the nature of the act, rather than\non the motive or intent of the official performing it.” Id. at 54. The act must be\nlegislative “in substance,” bearing “all the hallmarks of traditional legislation,” and\n“in form,” involving “integral steps in the legislative process.” Id. at 55.\n\n The district court suggested that the governor’s “withholding of funds is a\nlegislative function entitled to legislative immunity.” Church, 268 F. Supp. 3d at\n1020. It emphasized Abbey v. Rowland, 359 F. Supp. 2d 94, 100 (D. Conn. 2005):\n\n Nothing could be more integral to the legislative process than [proposing\n a budget]. The Governor’s choices of exactly how to cut the budget may\n have been discretionary, but they were policy choices of broad import.\n The fact that any budget reduction would necessarily have an adverse\n impact on some employment does not change the budgetary decision\n from a legislative to an administrative function.\n\n\n\n\n -19-\n\f Indeed, the Supreme Court has said that a “discretionary, policymaking decision\nimplicating the budgetary priorities of the [government] and the services the\n[government] provides to its constituents” is a “hallmark[] of traditional legislation.”\nBogan, 523 U.S. at 55-56. And in Missouri, “the budget process . . . begins and ends\nwith the Governor,” making the governor’s appropriation reduction legislative in\nform. See Missouri Health Care Ass’n v. Holden, 89 S.W.3d 504, 508 (Mo. banc\n2002). The Missouri Constitution “does not permit the state to spend money it does\nnot have” and “broadly authorizes the Governor to balance the state’s budget in the\nevent that state revenues fall below the revenue expectations.” Id. at 506-07, citing\nMo. Const. art. IV, § 27. A Missouri governor’s appropriation reduction is a\nlegislative act.\n\n The district court, however, ruled that it was premature to apply legislative\nimmunity “because it is unclear what the terms of any injunction entered would\ninclude. . . . That finding is subject to change should the Plaintiffs request any\nremedies that would violate Gov. Greitens’ immunity from acts ‘integral’ to the\nlegislative process.” Church, 268 F. Supp. 3d at 1020. By that rationale, the\nremedy—not the challenged act—guides whether legislative immunity applies.\n\n The governor counters: “legislative immunity is an immunity from suit, not\nmerely an immunity from the award of certain types of relief. The district court’s\nrationale would enable any plaintiff to defeat legislative immunity merely by making\na vague and indefinite request for ‘injunctive and declaratory relief.’”\n\n The Supreme Court’s decision in Consumers Union addresses this issue. There,\nthe Supreme Court of Virginia, in addition to its inherent authority, used its statutory\nauthority to promulgate a professional ethics code. Consumers Union, 446 U.S. at\n721. The Virginia legislature “vested in the court virtually its entire legislative or\nregulatory power over the legal profession.” Id. at 722. The court also had the power\nto enforce its professional ethics code. Id. at 722-24.\n\n -20-\n\f The plaintiffs believed that the code’s provision on attorney advertisement\nviolated the First Amendment. Id. at 726. They sued the Virginia Court and its chief\njustice in his personal and official capacity under 42 U.S.C. § 1983, seeking a\ndeclaration that the provision was unconstitutional and an injunction against its\nenforcement. Id. at 725-26. The chief justice and the court asserted legislative\nimmunity. Id. at 730. The Supreme Court concluded (1) the Virginia court’s\npromulgation of the professional ethics code was a legislative act, (2) “the Virginia\nCourt and its members are immune from suit when acting in their legislative\ncapacity,” and (3) legislative immunity applies to suits for equitable relief. Id. at 731-\n32, 734.\n\n The Supreme Court, however, did not apply legislative immunity: “If the sole\nbasis for appellees’ § 1983 action against the Virginia Court and its chief justice were\nthe issuance of, or failure to amend, the challenged rules, legislative immunity would\nforeclose suit against appellants.” Id. at 734 (emphasis added). But the Court\nconcluded that the Virginia court’s enforcement authority was a non-legislative act:\n“the Virginia Court performs more than a legislative role with respect to the State Bar\nCode. It also hears appeals from lower court decisions in disciplinary cases, a\ntraditional adjudicative task; and in addition, it has independent enforcement authority\nof its own.” Id. “For this reason the Virginia Court and its members were proper\ndefendants in a suit for declaratory and injunctive relief.” Id. at 736.\n\n Under Consumers Union, the “basis” for suit governs whether legislative\nimmunity “foreclose[s] suit.” The Second Circuit, however, has a different\ninterpretation of Consumers Union: legislators “must still show, before they are\nafforded the protections of legislative immunity as to claims for injunctive relief, that\nthe requested relief would enjoin them in their legislative capacities.” State\nEmployees Bargaining Agent Coal. v. Rowland, 494 F.3d 71, 93 (2d Cir. 2007).\nAccording to the Second Circuit, the Consumers Union decision\n\n -21-\n\f applied legislative immunity to bar plaintiff’s claims for injunctive relief\n insofar as the relief sought would compel the defendants to perform a\n legislative act—the repeal or amendment of the state’s bar code to\n conform with constitutional requirements. The Court concluded,\n however, that legislative immunity did not bar claims for injunctive\n relief that would enjoin the defendant justices from committing a\n distinctly non-legislative act—independent enforcement of the\n unconstitutional provisions of the bar code against particular individuals.\n\n\n\nId. at 88, citing Consumers Union, 446 U.S. at 733-36. The Second Circuit assumed\nthat the Consumers Union plaintiffs sought “declaratory and injunctive relief that\nwould have forced the Supreme Court [of Virginia] to amend or repeal the code.” Id.\nat 83-84. Through that assumption, the Second Circuit appears to interpret Consumers\nUnion’s enforcement discussion to mean that if the suit sought only amendment or\nrepeal, then that suit would have been barred by legislative immunity. Id. By the\nSecond Circuit’s reading of the case, the suit also sought an injunction against\nenforcement, meaning legislative immunity was not a bar in Consumers Union.\n\n But Consumers Union does not say that the plaintiffs there sought to amend or\nrepeal the code. The Court’s only reference to amendment or repeal was as a “basis”\nfor suit—the Virginia court’s “issuance of, or failure to amend, the challenged rules.”\nConsumers Union, 446 U.S. at 734. True, the Consumers Union plaintiffs did seek\nan injunction against enforcement. But the Virginia’s court’s enforcement of the\nprofessional ethics code also was a basis for suit: “[M]ere enforcement authority does\nnot create a case or controversy with the enforcement official; but in the circumstances\nof this case, a sufficiently concrete dispute is as well made out against the Virginia\nCourt as an enforcer . . . .” Id. at 736 n.15. In other words, the Virginia court’s\nenforcement—in addition to its promulgation—of the professional ethics code was a\nnon-legislative act that violated the First Amendment, providing a separate basis for\nsuit not barred by legislative immunity. See Alia v. Michigan Supreme Court, 906\n\n -22-\n\fF.2d 1100, 1107 (6th Cir. 1990) (Wellford, J., dissenting) (analyzing Consumers\nUnion and concluding “to the extent the individual justices acted in a rulemaking\ncapacity, they are entitled to legislative immunity, but to the extent they acted in an\nenforcement capacity, they are not entitled to claim legislative immunity”) (underlines\nadded).\n\n In the end, these ambiguities do not impact the result here. In Consumers\nUnion, the Supreme Court states: “If the sole basis for appellees’ § 1983 action\nagainst the Virginia Court and its chief justice were the issuance of, or failure to\namend, the challenged rules, legislative immunity would foreclose suit against\nappellants.” Consumers Union, 446 U.S. at 734 (emphasis added). In the complaint\nhere, the plaintiffs allege:\n\n As chief executive of the State, Governor Greitens bears ultimate\n responsibility for the provision of constitutionally mandated services,\n including indigent defense, to the people of Missouri. The Governor of\n Missouri appoints the members of the Missouri State Public Defender\n Commission, with the advice and consent of the Senate. The Governor\n has claimed the authority to withhold money budgeted to the Missouri\n State Public Defender’s Office and has exercised that claimed authority\n in recent years, including fiscal year 2017.\n\nAs discussed above, to the extent the plaintiffs claim that the governor’s general-\nenforcement authority and appointment authority are non-legislative acts that lead to\na constitutional violation, the governor is subject to sovereign immunity for those acts\nbecause they do not satisfy Ex parte Young.\n\n That leaves as “the sole basis” for the plaintiffs’ action against the governor his\nappropriation reduction—a legislative act—meaning legislative immunity\n“foreclose[s] suit” against him. See id. at 734. The Supreme Court used the word\n“suit,” not “remedy.” This approach is consistent with how the Supreme Court treats\nsovereign immunity: “Sovereign immunity does not merely constitute a defense to\n\n -23-\n\fmonetary liability or even to all types of liability. Rather, it provides an immunity\nfrom suit.” Fed. Mar. Comm’n, 535 U.S. at 766 (emphasis added).\n\n Even if the governor’s appropriation-reduction authority is not shielded by\nsovereign immunity through Ex parte Young, legislative immunity, a separate defense,\nforecloses suit against the governor. See Consumers Union, 446 U.S. at 734. See\nalso Tolman v. Finneran, 171 F. Supp. 2d 31, 37-38 (D. Mass. 2001) (“Short of the\nexceptional case, it is unlikely that Ex Parte Young is broad enough to abrogate\nlegislative immunity and authorize suit against a legislator acting in a purely\nlegislative capacity.”).3\n\n ******\n\n\n\n\n 3\n The plaintiffs argue that legislative immunity is a personal defense that does\nnot apply to official-capacity suits, like the one here. They cite Roach v. Stouffer, 560\nF.3d 860 (8th Cir. 2009), quoting a Second Circuit decision: “immunity, either\nabsolute or qualified, is a personal defense that is available only when officials are\nsued in their individual capacities; the immunities officials enjoy when sued\npersonally do not extend to instances where they are sued in their official capacities.”\nRoach, 560 F.3d at 870, quoting Almonte v. City of Long Beach, 478 F.3d 100, 106\n(2d Cir. 2007). But under Consumers Union, legislative immunity applies to official-\ncapacity suits. Consumers Union, 446 U.S. at 725-26, 734. See also Scott v. Taylor,\n405 F.3d 1251, 1254 n.4, 1255 (11th Cir. 2005) (analyzing Consumers Union and\nKentucky v. Graham, 473 U.S. 159 (1985), and “hold[ing] that the legislator\ndefendants in the instant official capacity suit for prospective relief are entitled to\nabsolute immunity.”). The Second Circuit–recognizing the tension between Almonte\nand Consumers Union–limited Almonte to “claims against local-level officials, rather\nthan state officials.” Rowland, 494 F.3d at 86, 88 (“claims for injunctive relief against\ndefendant state officials, sued in their official capacities, may be barred by the\ndoctrine of legislative immunity”). To the extent Roach conflicts with Consumers\nUnion, this court is bound by Consumers Union.\n\n -24-\n\f The judgment is reversed, and the case remanded for proceedings consistent\nwith this opinion.4\n ______________________________\n\n\n\n\n 4\n This court grants the plaintiffs’ motion for leave to file a sur-reply. In reaching\nthis decision, this court considered the sur-reply attached to the motion.\n\n -25-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4357666/", "author_raw": "BENTON, Circuit Judge."}]}	GRUENDER	MELLOY	BENTON	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4580413/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Shondel CHURCH; Randall Lee Dalton; Dorian Samuels; Viola Bowman; Brian Richman, Plaintiffs - Appellees v. State of MISSOURI; Michael L. Parson, in His Official Capacity as Governor of the State of Missouri, Defendants - Appellants Michael Barrett; H. Riley Bock; Charles R. Jackson; Craig Chval; A. Crista Hogan, Defendants\nCourt: U.S. Court of Appeals for the Eighth Circuit\nDate decided: 2019-01-10\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-2857\n ___________________________\n\nShondel Church; Randall Lee Dalton; Dorian Samuels; Viola Bowman; Brian Richman\n\n lllllllllllllllllllllPlaintiffs - Appellees\n\n v.\n\n State of Missouri; Michael L. Parson,1 in his official capacity as Governor of the\n State of Missouri\n\n lllllllllllllllllllllDefendants - Appellants\n\nMichael Barrett; H. Riley Bock; Charles R. Jackson; Craig Chval; A. Crista Hogan\n\n lllllllllllllllllllllDefendants\n ____________\n\n Appeal from United States District Court\n for the Western District of Missouri - Jefferson City\n ____________\n\n Submitted: April 10, 2018\n Filed: January 10, 2019\n ____________\n\nBefore GRUENDER, MELLOY, and BENTON, Circuit Judges.\n ____________\n\n\n 1\n While this appeal was pending, Eric R. Greitens resigned as governor of\nMissouri. His successor, Michael L. Parson, is automatically substituted under\nFederal Rule of Appellate Procedure 43(c)(2). See Digital Recognition Network, Inc.\nv. Hutchinson, 803 F.3d 952, 952 n.1 (8th Cir. 2015).\n\fBENTON, Circuit Judge.\n\n This is a class action against the State and governor of Missouri, the director of\nthe Missouri State Public Defender office, and the commissioners of the Missouri\nState Public Defender Commission. The plaintiffs alleged that the State “has failed\nto meet its constitutional obligation to provide indigent defendants with meaningful\nrepresentation.” Invoking sovereign immunity, the State and governor moved to\ndismiss. The governor also invoked legislative immunity. The district court denied\nthe motion. Church v. Missouri, 268 F. Supp. 3d 992 (W.D. Mo. 2017). The director\nand commissioners do not appeal. Having jurisdiction under 28 U.S.C. § 1291\nthrough the collateral order doctrine,2 this court reverses and remands.\n\n I.\n\n The Sixth Amendment guarantees indigent defendants in criminal cases the\nright to appointed counsel. Gideon v. Wainwright, 372 U.S. 335, 344-45 (1963).\nBecause the right to counsel is “fundamental and essential to a fair trial,” it is\n“protected against state invasion by the Due Process Clause of the Fourteenth\nAmendment.” Id. at 341-42.\n\n The State usually provides counsel through the Missouri State Public Defender.\nSee State ex rel. Missouri Pub. Def. Comm’n v. Pratte, 298 S.W.3d 870, 875 (Mo.\nbanc 2009) (indigent defense is “a duty which constitutionally is the burden of the\nState,” and “[w]hen a defendant is found to be indigent in Missouri, the defendant’s\nSixth Amendment right to counsel is usually met by the judge appointing the ‘Office\nof State Public Defender’”) (citation omitted). Here, the plaintiffs “were all charged\n\n 2\n See Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S.\n139, 147 (1993); Fryberger v. University of Ark., 889 F.3d 471, 473 (8th Cir. 2018);\nMcDonough Assocs., Inc. v. Grunloh, 722 F.3d 1043, 1048 (7th Cir. 2013); Scott v.\nTaylor, 405 F.3d 1251, 1253 (11th Cir. 2005).\n\n -2-\n\fwith crimes in Missouri state court and, as a result of their indigency, were entitled to\nrepresentation by the MSPD.” They bring this lawsuit “on behalf of themselves and\na putative class of all indigent defendants in criminal and juvenile proceedings in\nMissouri who are eligible for representation by the MSPD.” The putative class does\nnot include individuals seeking post-conviction relief. See Mo. Sup. Ct. R. 24.035(e),\n29.15(e) (requiring appointment of counsel for all pro se, indigent, post-conviction\nmovants).\n\n The plaintiffs allege: “The State’s indigent defense budget is shockingly\ninadequate. . . . Without sufficient funding, overstretched and under-resourced\n[MSPD] attorneys are forced to handle far too many cases and to devote far too few\nhours to each case.” They argue they “have suffered and continue to suffer the denial\nof adequate counsel at critical stages of their criminal cases due to these systemic\ncaseload problems among MSPD attorney.” They seek “a declaratory judgment\nstating that their right to counsel is being violated and an order enjoining the ongoing\nviolation of their rights and requiring Defendants to propose a remedial plan to the\ncourt.”\n\n II.\n\n The State of Missouri invokes sovereign immunity for itself. “This court\nreviews de novo questions of sovereign immunity.” Fryberger, 889 F.3d at 473.\n“Sovereign immunity is the privilege of the sovereign not to be sued without its\nconsent.” Virginia Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 253 (2011).\nThe Eleventh Amendment is “one particular exemplification of that immunity.”\nFederal Mar. Comm’n v. South Carolina State Ports Auth., 535 U.S. 743, 753\n(2002). The State removed this case to federal court, waiving its Eleventh\nAmendment immunity. See Lapides v. Board of Regents of Univ. Sys. of Ga., 535\nU.S. 613, 624 (2002) (“We conclude that the State’s action joining the removing of\nthis case to federal court waived its Eleventh Amendment immunity”).\n\n -3-\n\f But “[s]tates also enjoy a broader sovereign immunity, which applies against\nall private suits, whether in state or federal court.” Beaulieu v. Vermont, 807 F.3d\n478, 483 (2d Cir. 2015), citing Alden v. Maine, 527 U.S. 706, 713 (1999) (“We have\n. . . sometimes referred to the States’ immunity from suit as ‘Eleventh Amendment\nimmunity.’ The phrase is convenient shorthand but something of a misnomer, for the\nsovereign immunity of the States neither derives from, nor is limited by, the terms of\nthe Eleventh Amendment.”). The Supreme Court “has repeatedly held that the\nsovereign immunity enjoyed by the States extends beyond the literal text of the\nEleventh Amendment.” Fed. Mar. Comm’n, 535 U.S. at 754.\n\n “The preeminent purpose of state sovereign immunity is to accord States the\ndignity that is consistent with their status as sovereign entities.” Id. at 760.\nDeveloped at common law, “immunity from suit is a fundamental aspect of the\nsovereignty which the States enjoyed before the ratification of the Constitution.”\nAlden, 527 U.S. at 713. See also Nevada v. Hall, 440 U.S. 410, 414-16 (1979)\n(explaining sovereign immunity’s common-law origins). “States entered the Union\nwith their sovereign immunity intact, unlimited by Article III’s jurisdictional grant.”\nStewart, 563 U.S. at 253. “The leading advocates of the Constitution assured the\npeople in no uncertain terms that the Constitution would not strip the States of\nsovereign immunity.” Alden, 527 U.S. at 716. “The founding generation thought it\n‘neither becoming nor convenient that the several States of the Union, invested with\nthat large residuum of sovereignty which had not been delegated to the United States,\nshould be summoned as defendants to answer the complaints of private persons.’” Id.\nat 748, quoting In re Ayers, 123 U.S. 443, 505 (1887).\n\n “[N]either logic nor precedent supports the proposition that a state waives its\ngeneral state sovereign immunity by removing an action from state court to federal\ncourt.” Beaulieu, 807 F.3d at 486. Missouri’s state sovereign immunity applies\nunless “it is waived or a statutory or recognized common law exception, such as\n\n -4-\n\fconsent, is applicable.” Metropolitan St. Louis Sewer Dist. v. City of Bellefontaine\nNeighbors, 476 S.W.3d 913, 914 (Mo. banc 2016). The plaintiffs assert both a waiver\nand a common-law exception, contending that sovereign immunity does not apply in\nMissouri when a plaintiff seeks prospective equitable relief to enforce the State’s\naffirmative duty or obligation.\n\n A.\n\n Courts “give effect” to a state’s waiver of sovereign immunity “only where\nstated by the most express language or by such overwhelming implication from the\ntext as [will] leave no room for any other reasonable construction.’” Port Auth.\nTrans-Hudson Corp. v. Feeney, 495 U.S. 299, 305 (1990), quoting Atascadero State\nHosp. v. Scanlon, 473 U.S. 234, 239-40 (1985). Express language does appear in\nsection 537.600, RSMo 2016, which “carve[s] out limited exceptions [for negligent\noperation of motor vehicles and dangerous conditions of public property] to a general\nrule of immunity.” Bellefontaine, 476 S.W.3d at 921.\n\n Emphasizing two Missouri Court of Appeals opinions, the plaintiffs argue that\nsovereign immunity does not bar a claim for equitable relief to enforce the State’s\naffirmative “duty or obligation.” In Wyman v. Missouri Department of Mental Health,\n376 S.W.3d 16, 23 (Mo. App. 2012), the court of appeals said it “found no case which\napplies § 537.600 to a claim seeking only equitable relief.” The Court of Appeals then\nstated that “sovereign immunity does not necessarily bar a claim for injunctive relief\nwhich seeks to reverse a state agency’s prior violation of its statutory obligations, or\nto prevent future violations.” Wyman, 376 S.W.3d at 23. In 2018, the Court of\nAppeals–citing the district court’s decision here–quoted and followed Wyman.\nMissouri State Conf. of NAACP v. State, 2018 WL 5492832, at 6 (Mo. App. Oct.\n30, 2018).\n\n\n\n\n -5-\n\f Both the Wyman and NAACP opinions fail to address the abundant contrary\nMissouri authority on sovereign immunity. In 2016 and 2017, the Supreme Court of\nMissouri stated: “Sovereign immunity is the rule, not the exception.” Bellefontaine,\n476 S.W.3d at 914; Newsome v. Kansas City Mo. Sch. Dist., 520 S.W.3d 769, 775\n(Mo. banc 2017). Of critical importance here, the Missouri Supreme Court held that\n\n in the absence of an express statutory exception to sovereign immunity,\n or a recognized common law exception such as the proprietary function\n and consent exceptions, sovereign immunity is the rule and applies to all\n suits against public entities.\n\nBellefontaine, 476 S.W.3d at 921-22 (emphasis added). Because—except for\nstatutory and common-law exceptions—sovereign immunity bars all suits against the\nState, it bars suits for prospective equitable relief.\n\n The plaintiffs claim that Bellefontaine covers only suits for damages because\nthat is all the plaintiff there sought. To the contrary, Bellefontaine follows the long-\nestablished Missouri precedent on sovereign immunity. Granting injunctive relief\nagainst an unconstitutional law in 1908, the Missouri Supreme Court held:\n\n That the sovereign state may not be sued is a truism . . . . But\n defendants . . . . ministerial officers, charged to be about to do irreparable\n injury . . . . are not beyond the strong arm of a court of equity.\n\nMerchants’ Exchange of St. Louis v. Knott, 111 S.W. 565, 574 (Mo. banc 1908)\n(agreeing with the Ex parte Young doctrine for state injunction cases just two months\nafter the United States Supreme Court’s decision). The Missouri Supreme Court has\nrepeatedly followed this approach.\n\n The amenability of respondents as executive or administrative officers\n of the State to the restrictive power of the courts in a proceeding of this\n character has been frequently declared in a number of cases . . . . It is not\n\n -6-\n\f to be understood from these cases that the state itself can be enjoined;\n but, when its officers act in an unconstitutional or illegal manner they are\n not to be regarded as acting for the state, and they may be enjoined.\n\nCarson v. Sullivan, 223 S.W. 571, 571 (Mo. banc 1920) (citing several cases\nincluding Merchants’ Exchange and Ex parte Young). See, e.g., Nacy v. Le Page,\n111 S.W.2d 25, 25–26 (Mo. banc 1937) (“because the state may not be sued without\nits consent” and because a garnishment “seeks to compel action on the part of the\nstate,” a state court may not require the State to submit to a legal writ of garnishment)\n(changed by § 525.310, RSMo 1943); State ex rel. Eagleton v. Hall, 389 S.W.2d 798,\n801 (Mo. banc 1965) (a will-contest suit affecting residuary estate left to state is a suit\nagainst the state, thus barred by sovereign immunity) , quoted in Bellefontaine, 476\nS.W.3d at 921; Garland v. Ruhl, 455 S.W.3d 442, 446 (Mo. banc 2015) (even when\na statute authorizes award of attorney fees against the state, sovereign immunity\nprevents ordering the state to do so, due to strict construction of the statute).\n\n Because the two Court of Appeals opinions have a limited consideration of\ncontrolling Missouri Supreme Court cases and fail even to address contrary authority,\nthe Wyman and NAACP cases are not instructive as to how the Missouri Supreme\nCourt would decide the sovereign immunity issue in this case. See United Fire &\nCas. Co. v. Titan Contractors Serv., Inc., 751 F.3d 880, 885 n.2 (8th Cir. 2014).\n\n The plaintiffs cite five cases where the Missouri Supreme Court affirmed\ninjunctions directed at the State. See Weinschenk v. State, 203 S.W.3d 201, 205 (Mo.\nbanc 2006); Brooks v. State, 128 S.W.3d 844, 851 (Mo. banc 2004); Rolla 31 Sch.\nDist. v. State, 837 S.W.2d 1, 7 (Mo. banc 1992); Pohl v. State Highway Comm’n, 431\nS.W.2d 99, 107 (Mo. banc 1968); Koplar v. State Tax Comm’n, 321 S.W.2d 686, 697\n(Mo. 1959). These five cases, plaintiffs assert, show it is “perfectly ordinary” to\nenjoin the State itself to force compliance with its obligations.\n\n\n\n\n -7-\n\f First, in the three most recent cases, state officials–subject to Missouri’s Ex\nparte Young doctrine–were also named as defendants. Weinschenk, 203 S.W.3d at\n204 n.1 (secretary of state); Brooks, 128 S.W.3d at 846 (attorney general); Rolla, 837\nS.W.2d at 2 & n. 2 (naming the “various state officials” who were defendants). The\nPohl case is an “injunction suit by taxpayers.” Pohl, 431 S.W.2d at 100. See\nManzara v. State, 343 S.W.3d 656, 658-59 (Mo. banc 2011) (reviewing history of\ntaxpayer suits since 1873 and holding “when a public interest is involved and public\nmonies are being expended for an illegal purpose, taxpayers have the right to enjoin\nthe action” so “government officials conform to the dictates of the law”). The Koplar\ncase is a judicial review of administrative decisions under the Missouri Administrative\nProcedure Act–specifically held to be a “waiver of sovereign immunity.” See St.\nLouis County v. State, 424 S.W.3d 450, 454 n.3 (Mo. banc 2014) (statute authorizing\njudicial review of administrative decisions is a waiver of sovereign immunity). As a\nresult, none of these five cases even hint at the threshold question presented here:\nwhether Missouri’s sovereign immunity covers suits for prospective equitable relief.\n“Questions which merely lurk in the record, neither brought to the attention of the\ncourt nor ruled upon, are not to be considered as having been so decided as to\nconstitute precedents.” Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 170\n(2004). See also Byrne & Jones Enters., Inc. v. Monroe City R-1 Sch. Dist., 493\nS.W.3d 847, 855 (Mo. banc 2016) (“Judicial decisions must be construed with\nreference to the facts and issues of the particular case, and that the authority of the\ndecision as a precedent is limited to those points of law which are raised by the record,\nconsidered by the court, and necessary to a decision.”) (citation omitted).\n\n Second, adopting the plaintiffs’ view creates a judicial exception to sovereign\nimmunity. But Bellefontaine rejects that, explaining it would “not judicially create an\nexception to the common law rule of sovereign immunity” to address the specific\nsituation there because the issue presented “policy concerns . . . for the legislature.”\nBellefontaine, 476 S.W.3d at 923. The legislature—not the judiciary—must waive\nsovereign immunity. Id. at 921 (“This Court cannot read into the statute an exception\n\n -8-\n\fto sovereign immunity or imply waivers not explicitly created in the statute.”). See\nalso Winston v. Reorganized Sch. Dist. R-2, Lawrence Cnty., 636 S.W.2d 324, 328\n(Mo. banc 1982) (“[W]e are mindful of the oft repeated principle that, within\nconstitutional limits, a sovereign may prescribe the terms and conditions under which\nit may be sued, and the decision to waive immunity, and to what extent it is waived,\nlies within the legislature’s purview.”). The parties have not cited a Missouri statute\nthat waives sovereign immunity for prospective equitable relief. The five cases they\ncite, Wyman/NAACP, or other states’ decisions cannot serve as a substitute.\n\n True, Bellefontaine does not address the precise issue here. But it says that\nsovereign immunity “is the rule—not the exception—even in the absence of prior\ncases specifically addressing this issue.” Bellefontaine, 476 S.W.3d at 922. “When\nthere is no state supreme court case directly on point, our role is to predict how the\nstate supreme court would rule if faced with the [same issue] before us.” Blankenship\nv. USA Truck, Inc., 601 F.3d 852, 856 (8th Cir. 2010) (alteration in original) (citation\nomitted). See also Craven v. University of Colo. Hosp. Auth., 260 F.3d 1218, 1231\n(10th Cir. 2001) (applying the same rule to a sovereign immunity issue). This court\npredicts that the Missouri Supreme Court would apply Bellefontaine’s long-\nestablished principles to cases involving prospective equitable relief. Missouri does\nnot have a waiver of sovereign immunity for prospective equitable relief “stated by\nthe most express language or by such overwhelming implication from the text as [will]\nleave no room for any other reasonable construction.” Feeney, 495 U.S. at 305.\n\n B.\n\n Plaintiffs also assert a recognized common law exception to sovereign\nimmunity. See Bellefontaine, 476 S.W.3d at 921-22 (stating sovereign immunity\napplies to all suits, in the absence of a recognized common law exception). The\nBellefontaine case notes two such exceptions, consent and “proprietary function” (of\nmunicipalities). Id. Neither of these apply here.\n\n -9-\n\f Citing Blackstone, law review articles, a common-law case, and other state\ncourts, the plaintiffs argue that “even at common law, courts of equity enforced the\nCrown’s obligations.” See generally Armstrong v. Exceptional Child Ctr., Inc., 135\nS. Ct. 1378, 1384 (2015) (“It is true enough that we have long held that federal courts\nmay in some circumstances grant injunctive relief against state officers who are\nviolating, or planning to violate, federal law. . . . The ability to sue to enjoin\nunconstitutional actions by state and federal officers is the creation of courts of equity,\nand reflects a long history of judicial review of illegal executive action, tracing back\nto England.”) (emphasis added), citing Young, 209 U.S. at 150-51 (other citations\nomitted).\n\n The State counters, with arguments based on the “law or equity” phrase in the\nEleventh Amendment and the Supreme Court’s words in an Eleventh Amendment\ncase that\n\n sovereign immunity applies regardless of whether a private plaintiff’s\n suit is for monetary damages or some other type of relief. See [Seminole\n Tribe of Fla. v. Florida, 517 U.S. 44, 58 (1996)] (“[W]e have often made\n it clear that the relief sought by a plaintiff suing a State is irrelevant to\n the question whether the suit is barred by the Eleventh Amendment”).\n\n\nFed. Mar. Comm’n, 535 U.S. at 765-66 (emphasis added).\n\n These expertly briefed arguments are beside the point. The Missouri Supreme\nCourt is the “custodian” of the common law in Missouri. Townsend v. Townsend,\n708 S.W.2d 646, 649-50 (Mo. banc 1986). That Court has rejected that “the state\nitself can be enjoined.” Carson, 223 S.W. at 571, following Merchants’ Exchange,\n111 S.W. at 574. A recognized common law exception to Missouri’s sovereign\nimmunity does not apply here.\n\n\n -10-\n\f III.\n\n The plaintiffs argue that even if sovereign immunity bars prospective injunctive\nrelief, the State “can be sued directly for equitable relief for failing to comply with a\nfederal constitutional obligation, here, the Sixth Amendment.” They stress First\nEnglish Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987),\nand Reich v. Collins, 513 U.S. 106 (1994).\n\n In First English, the Supreme Court stated it “has frequently repeated the view\nthat, in the event of a taking, the compensation remedy is required by the\nConstitution.” First English, 482 U.S. at 316. It footnoted:\n\n The Solicitor General urges that the prohibitory nature of the Fifth\n Amendment, combined with principles of sovereign immunity,\n establishes that the Amendment itself is only a limitation on the power\n of the Government to act, not a remedial provision. The cases cited in\n the text, we think, refute the argument of the United States that “the\n Constitution does not, of its own force, furnish a basis for a court to\n award money damages against the government.”\n\nId. at 316 n.9 (citations omitted). In Reich, the Court explained that “a long line of\ncases” establishes that “due process requires a ‘clear and certain’ remedy for taxes\ncollected in violation of federal law,” and that “a denial by a state court of a recovery\nof taxes exacted in violation of the laws or Constitution of the United States by\ncompulsion is itself in contravention of the Fourteenth Amendment, the sovereign\nimmunity States traditionally enjoy in their own courts notwithstanding.” Reich, 513\nU.S. at 108, 109-110 (citations and internal quotation marks omitted).\n\n According to the plaintiffs, these cases (particularly the footnote in First\nEnglish) mean that “where the Constitution places an affirmative obligation on the\n\n\n -11-\n\fState itself, the State cannot rely on state sovereign immunity to defeat a suit that aims\nto force it to comply with that obligation.” But that is too broad a reading. Instead,\nthe cases mean that “where the Constitution requires a particular remedy, such as\nthrough the Due Process Clause for the tax monies at issue in Reich, or through the\nTakings Clause as indicated in First English, the state is required to provide that\nremedy in its own courts, notwithstanding sovereign immunity.” DLX, Inc. v.\nKentucky, 381 F.3d 511, 528 (6th Cir. 2004) (emphasis added). For the situation at\nissue here, the Constitution does not require a “particular” or “clear and certain”\nremedy.\n\n Congress may also abrogate state sovereign immunity by providing an\nenforcement mechanism for constitutional violations:\n\n We have held also that in adopting the Fourteenth Amendment, the\n people required the States to surrender a portion of the sovereignty that\n had been preserved to them by the original Constitution, so that Congress\n may authorize private suits against nonconsenting States pursuant to its\n § 5 enforcement power. By imposing explicit limits on the powers of the\n States and granting Congress the power to enforce them, the Amendment\n fundamentally altered the balance of state and federal power struck by\n the Constitution. When Congress enacts appropriate legislation to\n enforce this Amendment, federal interests are paramount, and Congress\n may assert an authority over the States which would be otherwise\n unauthorized by the Constitution.\n\nAlden, 527 U.S. at 756 (internal citations and quotation marks omitted). See also\nUnited States v. Georgia, 546 U.S. 151, 159 (2006) (“insofar as Title II [of the ADA]\ncreates a private cause of action for damages against the States for conduct that\nactually violates the Fourteenth Amendment, Title II validly abrogates state sovereign\nimmunity.”). No statutory enforcement mechanism exists here.\n\n\n\n\n -12-\n\f IV.\n\n The governor asserts sovereign immunity. The plaintiffs argue that sovereign\nimmunity does not shield the governor because he is an Ex parte Young defendant.\n“Under the Ex Parte Young doctrine, a private party can sue a state officer in his\nofficial capacity to enjoin a prospective action that would violate federal law.” 281\nCare, 638 F.3d at 632. The doctrine “rests on the premise—less delicately called a\n‘fiction’—that when a federal court commands a state official to do nothing more than\nrefrain from violating federal law, he is not the State for sovereign-immunity\npurposes.” Stewart, 563 U.S. at 255 (internal citation omitted). See also Hutchinson,\n803 F.3d at 957 (“Enforcement of unconstitutional legislation ‘is simply an illegal act\nupon the part of [the] state official,’ and the State may not immunize officials from\nsuit for such violations of the Constitution.”), quoting Young, 209 U.S. at 159.\n\n “In determining whether this exception applies, a court conducts ‘a\nstraightforward inquiry into whether [the] complaint alleges [1] an ongoing violation\nof federal law and [2] seeks relief properly characterized as prospective.’” 281 Care,\n638 F.3d at 632, quoting Verizon Maryland, Inc. v. Public Serv. Comm’n of\nMaryland, 535 U.S. 635, 645 (2002) (alterations added). On the first inquiry, the\nofficial must have “some connection to the enforcement of the challenged laws.”\nCalzone v. Hawley, 866 F.3d 866, 869 (8th Cir. 2017), citing Young, 209 U.S. at 157.\nSee also 281 Care, 638 F.3d at 632. “Without that connection, the officer would be\nsued merely ‘as a representative of the state’ in an impermissible attempt to ‘make the\nstate a party.’” Hutchinson, 803 F.3d at 960, quoting Young, 209 U.S. at 157.\n“[T]hat connection does not need to be primary authority to enforce the challenged\nlaw.” 281 Care, 638 F.3d at 632. “Nor does the [state officer] need to have the full\npower to redress a plaintiff’s injury in order to have ‘some connection’ with the\nchallenged law.” Id. at 633.\n\n\n\n\n -13-\n\f Ruling that the governor is an Ex parte Young defendant, the district court\nidentified three connections to the enforcement of the State’s Sixth Amendment\nobligation to provide indigent defendants with adequate counsel.\n\n A.\n\n The district court noted the governor’s general-enforcement authority. The\nMissouri Constitution says, “The supreme executive power shall be vested in a\ngovernor,” and “The governor shall take care that the laws are distributed and\nfaithfully executed, and shall be a conservator of the peace throughout the state.” Mo.\nConst. art. IV, §§ 1-2. The district court also cited a Missouri statute: “When\ndirected by the governor, the attorney general, or one of his assistants, shall aid any\nprosecuting or circuit attorney in the discharge of their respective duties in the trial\ncourts and in examinations before grand juries . . . .” § 27.030, RSMo.\n\n The district court concluded that these provisions make the Missouri governor\nlike the Georgia governor in Luckey v. Harris, 860 F.2d 1012 (11th Cir. 1988). There,\nindigent defendants sought injunctive relief against a governor to remedy Sixth\nAmendment violations. Luckey, 860 F.2d at 1013. The Eleventh Circuit held that\nGeorgia’s governor had “some connection” and was an “appropriate part[y] against\nwhom prospective relief could be ordered” because:\n\n According to the Georgia constitution, the governor is responsible for\n law enforcement in that state and is charged with executing the laws\n faithfully. The governor further has the residual power to commence\n criminal prosecutions, and has the final authority to direct the Attorney\n General to “institute and prosecute” on behalf of the state.\n\nId. at 1016 (internal citations omitted).\n\n\n\n\n -14-\n\f The governor here argues that this court’s Calzone decision trumps Luckey.\nThe Calzone plaintiff sought an injunction against the Missouri governor in a\nchallenge to the constitutionality of a state statute. Calzone, 866 F.3d at 869. This\ncourt held that neither the statute nor the Missouri Constitution’s general-enforcement\nprovision make the governor an Ex parte Young defendant:\n\n No provision in Chapter 304 or the statutes defining his executive\n authority specifically authorizes the governor to enforce the vehicle\n inspection statutes. See Mo. Rev. Stat. § 26.010-.225. The Missouri\n Constitution confers upon the governor the duty to “take care that the\n laws are distributed and faithfully executed,” Mo. Const. art. IV, § 2, but\n such a general executive responsibility is an insufficient connection to\n the enforcement of a statute to avoid the Eleventh Amendment. See Fitts\n v. McGhee, 172 U.S. 516, 530 (1899).\n\nId. at 870.\n\n The plaintiffs try to distinguish Calzone because the statute there “delegated\nenforcement exclusively to the superintendent of the highway patrol,” meaning “[t]he\nGovernor was not a proper defendant because he has no connection to the statute. . . .\nUnlike the statute in Calzone, the State’s constitutional obligation to provide adequate\ncounsel—and the Governor’s role in its failure to do so—cannot be delegated\nexclusively to the MSPD.”\n\n Although Calzone is factually distinguishable, its guidance on the Missouri\ngovernor’s general-enforcement authority is consistent with this court’s precedent.\nSee Hutchinson, 803 F.3d at 961; Citizens for Equal Protection v. Bruning, 455 F.3d\n859 (8th Cir. 2006), abrogated on other grounds by Obergefell v. Hodges, 135 S. Ct.\n2584 (2015).\n\n In Bruning, the Nebraska governor and attorney general were Ex parte Young\ndefendants in a suit to enjoin enforcement of a state constitutional amendment.\n\n -15-\n\fBruning, 455 F.3d at 864. This court found a sufficient connection to the\nenforcement of the amendment because “the Governor and the Attorney General have\nbroad powers to enforce the State’s Constitution and statutes.” Id. The Hutchinson\ndecision clarifies that statement from Bruning:\n\n [T]he court’s statement [in Bruning] must be read in context. In\n Bruning, the “broad powers” of the officials included authority to\n enforce the constitutional amendment at issue. The Nebraska attorney\n general has power to enforce the Nebraska Constitution by bringing suit\n for a declaratory judgment that a state statute is unconstitutional, or for\n an injunction prohibiting the enforcement of a state statute on the\n grounds that it is unconstitutional. The Nebraska governor has some\n connection to the enforcement of the Nebraska Constitution because he\n may direct the attorney general to file suit to enjoin application of an\n unconstitutional state statute. That sort of enforcement authority is\n lacking with respect to [the] statute [at issue in Hutchinson] that provides\n only for private civil enforcement.\n\nHutchinson, 803 F.3d at 961 (internal citations omitted).\n\n The Bruning and Hutchinson decisions mean that a governor’s general-\nenforcement authority is “some connection” if that authority gives the governor\nmethods of enforcement. The governor in Bruning had a method of enforcement\nbecause he could direct the attorney general to seek equitable relief. But the\ngovernors in Calzone and Hutchinson did not have a comparable enforcement\nmechanism.\n\n Nor does the governor here. The district court’s reliance on section 27.030 is\ninsufficient because that provision covers aiding prosecution, not defense. The\ngovernor’s general-enforcement authority is not “some connection” to enforcement\nof the State’s Sixth Amendment obligation. See Calzone, 866 F.3d at 870. See also\nAir Evac EMS, Inc. v. Texas, Dep’t of Ins., Div. of Workers’ Comp., 851 F.3d 507,\n\n\n -16-\n\f517 (5th Cir. 2017) (“[A] state governor with a broad duty to uphold state law is not\na proper defendant.”); Los Angeles Cnty. Bar Ass’n v. Eu, 979 F.2d 697, 704 (9th\nCir. 1992) (“[A] generalized duty to enforce state law or general supervisory power\nover the persons responsible for enforcing the challenged provision will not subject\nan official to suit.”); Shell Oil Co. v. Noel, 608 F.2d 208, 211 (1st Cir. 1979) (“The\nmere fact that a governor is under a general duty to enforce state laws does not make\nhim a proper defendant in every action attacking the constitutionality of a state\nstatute.”).\n\n B.\n\n The district court ruled the governor had “some connection” because he\n“appoints all seven members of the MSPD Commission.” Church, 268 F. Supp. 3d\nat 1013, citing § 600.015.1, RSMo (“The commission shall be composed of seven\nmembers . . . appointed by the governor with the advice and consent of the senate.”).\nThe district court cited the Ninth Circuit’s decision in Eu, where a bar association sued\na governor to challenge a state statute that limited the number of judges in a county.\nEu, 979 F.2d at 699. The governor had “a duty to appoint judges to any\nnewly-created judicial positions,” which the Ninth Circuit considered to be “a specific\nconnection to the challenged statute,” placing the governor within Ex parte Young’s\nscope. Id. at 704.\n\n Invoking Eu, the plaintiffs argue: “although the Governor alone cannot solve\nthe indigent defense crisis in this state, his role in the ongoing violation of those Sixth\nAmendment rights through his appointment of MSPD Commissioners, in addition to\nhis ability to profoundly affect MSPD caseload, is sufficient for Ex parte Young\npurposes.” The governor counters with this court’s decision in Balogh v. Lombardi,\n816 F.3d 536 (8th Cir. 2016).\n\n\n\n\n -17-\n\f In Balogh, a Missouri statute gave a private right of action against anyone who,\nwithout the approval of the Director of Corrections, knowingly discloses the identity\nof an execution-team member. Balogh, 816 F.3d at 539. The statute also gave the\ndirector authority to select those members. Id. This court ruled that the director’s\nselection authority is only “administrative or ministerial,” and not “some connection”\nto the statute’s enforcement:\n\n Although the director’s authority to delineate the members of the\n execution team does affect who might have a private right of action\n against [someone disclosing the identity of execution team members], it\n has nothing to do with an execution team member’s potential prosecution\n of such an action. Selection of the execution team constitutes\n implementation of the statute in an administrative or ministerial sense\n and is not analogous to enforcing the statute’s non-disclosure provision\n through a civil or criminal prosecution. The director’s authority to\n define the members of the execution team is not an enforcement action\n within the meaning of Ex Parte Young and its progeny.\n\nId. at 546.\n\n Like in Balogh, appointing members of the MSPD Commission is an\nadministrative act. See State ex rel. Sikes v. Williams, 121 S.W. 64, 65 (Mo. banc\n1909) (“The confirmations by the Senate of appointments made by the Governor are\nnot legislative acts . . . . Such acts by the Governor concerning appointments are\nmerely administrative . . . .”). It does not give the governor some connection to the\nState’s Sixth Amendment obligation. The Balogh decision, not Eu, binds this court.\n\n C.\n\n The district court concluded the governor met the “some connection”\nrequirement because of his appropriation-reduction authority:\n\n\n\n -18-\n\f Governor Greitens’s predecessor, Governor Nixon, affirmatively used\n his executive authority to withhold roughly $7 million in funding\n allocated by the Missouri Legislature to the MSPD, thereby\n demonstrating an even more direct “connection” to the challenged\n conduct. Governor Greitens has since upheld Governor Nixon's\n withholding of funds allocated to the MSPD.\n\nChurch, 268 F. Supp. 3d at 1012-13 (internal citation omitted). In addition to arguing\nthat his appropriation-reduction authority is not “some connection”, the governor\nasserts legislative immunity.\n\n “[S]tate legislators enjoy common-law immunity from liability for their\nlegislative acts.” Supreme Court of Va. v. Consumers Union of U. S., Inc., 446 U.S.\n719, 732 (1980). “[O]fficials outside the legislative branch are entitled to legislative\nimmunity when they perform legislative functions.” Bogan v. Scott–Harris, 523 U.S.\n44, 55 (1998). “Whether an act is legislative turns on the nature of the act, rather than\non the motive or intent of the official performing it.” Id. at 54. The act must be\nlegislative “in substance,” bearing “all the hallmarks of traditional legislation,” and\n“in form,” involving “integral steps in the legislative process.” Id. at 55.\n\n The district court suggested that the governor’s “withholding of funds is a\nlegislative function entitled to legislative immunity.” Church, 268 F. Supp. 3d at\n1020. It emphasized Abbey v. Rowland, 359 F. Supp. 2d 94, 100 (D. Conn. 2005):\n\n Nothing could be more integral to the legislative process than [proposing\n a budget]. The Governor’s choices of exactly how to cut the budget may\n have been discretionary, but they were policy choices of broad import.\n The fact that any budget reduction would necessarily have an adverse\n impact on some employment does not change the budgetary decision\n from a legislative to an administrative function.\n\n\n\n\n -19-\n\f Indeed, the Supreme Court has said that a “discretionary, policymaking decision\nimplicating the budgetary priorities of the [government] and the services the\n[government] provides to its constituents” is a “hallmark[] of traditional legislation.”\nBogan, 523 U.S. at 55-56. And in Missouri, “the budget process . . . begins and ends\nwith the Governor,” making the governor’s appropriation reduction legislative in\nform. See Missouri Health Care Ass’n v. Holden, 89 S.W.3d 504, 508 (Mo. banc\n2002). The Missouri Constitution “does not permit the state to spend money it does\nnot have” and “broadly authorizes the Governor to balance the state’s budget in the\nevent that state revenues fall below the revenue expectations.” Id. at 506-07, citing\nMo. Const. art. IV, § 27. A Missouri governor’s appropriation reduction is a\nlegislative act.\n\n The district court, however, ruled that it was premature to apply legislative\nimmunity “because it is unclear what the terms of any injunction entered would\ninclude. . . . That finding is subject to change should the Plaintiffs request any\nremedies that would violate Gov. Greitens’ immunity from acts ‘integral’ to the\nlegislative process.” Church, 268 F. Supp. 3d at 1020. By that rationale, the\nremedy—not the challenged act—guides whether legislative immunity applies.\n\n The governor counters: “legislative immunity is an immunity from suit, not\nmerely an immunity from the award of certain types of relief. The district court’s\nrationale would enable any plaintiff to defeat legislative immunity merely by making\na vague and indefinite request for ‘injunctive and declaratory relief.’”\n\n The Supreme Court’s decision in Consumers Union addresses this issue. There,\nthe Supreme Court of Virginia, in addition to its inherent authority, used its statutory\nauthority to promulgate a professional ethics code. Consumers Union, 446 U.S. at\n721. The Virginia legislature “vested in the court virtually its entire legislative or\nregulatory power over the legal profession.” Id. at 722. The court also had the power\nto enforce its professional ethics code. Id. at 722-24.\n\n -20-\n\f The plaintiffs believed that the code’s provision on attorney advertisement\nviolated the First Amendment. Id. at 726. They sued the Virginia Court and its chief\njustice in his personal and official capacity under 42 U.S.C. § 1983, seeking a\ndeclaration that the provision was unconstitutional and an injunction against its\nenforcement. Id. at 725-26. The chief justice and the court asserted legislative\nimmunity. Id. at 730. The Supreme Court concluded (1) the Virginia court’s\npromulgation of the professional ethics code was a legislative act, (2) “the Virginia\nCourt and its members are immune from suit when acting in their legislative\ncapacity,” and (3) legislative immunity applies to suits for equitable relief. Id. at 731-\n32, 734.\n\n The Supreme Court, however, did not apply legislative immunity: “If the sole\nbasis for appellees’ § 1983 action against the Virginia Court and its chief justice were\nthe issuance of, or failure to amend, the challenged rules, legislative immunity would\nforeclose suit against appellants.” Id. at 734 (emphasis added). But the Court\nconcluded that the Virginia court’s enforcement authority was a non-legislative act:\n“the Virginia Court performs more than a legislative role with respect to the State Bar\nCode. It also hears appeals from lower court decisions in disciplinary cases, a\ntraditional adjudicative task; and in addition, it has independent enforcement authority\nof its own.” Id. “For this reason the Virginia Court and its members were proper\ndefendants in a suit for declaratory and injunctive relief.” Id. at 736.\n\n Under Consumers Union, the “basis” for suit governs whether legislative\nimmunity “foreclose[s] suit.” The Second Circuit, however, has a different\ninterpretation of Consumers Union: legislators “must still show, before they are\nafforded the protections of legislative immunity as to claims for injunctive relief, that\nthe requested relief would enjoin them in their legislative capacities.” State\nEmployees Bargaining Agent Coal. v. Rowland, 494 F.3d 71, 93 (2d Cir. 2007).\nAccording to the Second Circuit, the Consumers Union decision\n\n -21-\n\f applied legislative immunity to bar plaintiff’s claims for injunctive relief\n insofar as the relief sought would compel the defendants to perform a\n legislative act—the repeal or amendment of the state’s bar code to\n conform with constitutional requirements. The Court concluded,\n however, that legislative immunity did not bar claims for injunctive\n relief that would enjoin the defendant justices from committing a\n distinctly non-legislative act—independent enforcement of the\n unconstitutional provisions of the bar code against particular individuals.\n\n\n\nId. at 88, citing Consumers Union, 446 U.S. at 733-36. The Second Circuit assumed\nthat the Consumers Union plaintiffs sought “declaratory and injunctive relief that\nwould have forced the Supreme Court [of Virginia] to amend or repeal the code.” Id.\nat 83-84. Through that assumption, the Second Circuit appears to interpret Consumers\nUnion’s enforcement discussion to mean that if the suit sought only amendment or\nrepeal, then that suit would have been barred by legislative immunity. Id. By the\nSecond Circuit’s reading of the case, the suit also sought an injunction against\nenforcement, meaning legislative immunity was not a bar in Consumers Union.\n\n But Consumers Union does not say that the plaintiffs there sought to amend or\nrepeal the code. The Court’s only reference to amendment or repeal was as a “basis”\nfor suit—the Virginia court’s “issuance of, or failure to amend, the challenged rules.”\nConsumers Union, 446 U.S. at 734. True, the Consumers Union plaintiffs did seek\nan injunction against enforcement. But the Virginia’s court’s enforcement of the\nprofessional ethics code also was a basis for suit: “[M]ere enforcement authority does\nnot create a case or controversy with the enforcement official; but in the circumstances\nof this case, a sufficiently concrete dispute is as well made out against the Virginia\nCourt as an enforcer . . . .” Id. at 736 n.15. In other words, the Virginia court’s\nenforcement—in addition to its promulgation—of the professional ethics code was a\nnon-legislative act that violated the First Amendment, providing a separate basis for\nsuit not barred by legislative immunity. See Alia v. Michigan Supreme Court, 906\n\n -22-\n\fF.2d 1100, 1107 (6th Cir. 1990) (Wellford, J., dissenting) (analyzing Consumers\nUnion and concluding “to the extent the individual justices acted in a rulemaking\ncapacity, they are entitled to legislative immunity, but to the extent they acted in an\nenforcement capacity, they are not entitled to claim legislative immunity”) (underlines\nadded).\n\n In the end, these ambiguities do not impact the result here. In Consumers\nUnion, the Supreme Court states: “If the sole basis for appellees’ § 1983 action\nagainst the Virginia Court and its chief justice were the issuance of, or failure to\namend, the challenged rules, legislative immunity would foreclose suit against\nappellants.” Consumers Union, 446 U.S. at 734 (emphasis added). In the complaint\nhere, the plaintiffs allege:\n\n As chief executive of the State, Governor Greitens bears ultimate\n responsibility for the provision of constitutionally mandated services,\n including indigent defense, to the people of Missouri. The Governor of\n Missouri appoints the members of the Missouri State Public Defender\n Commission, with the advice and consent of the Senate. The Governor\n has claimed the authority to withhold money budgeted to the Missouri\n State Public Defender’s Office and has exercised that claimed authority\n in recent years, including fiscal year 2017.\n\nAs discussed above, to the extent the plaintiffs claim that the governor’s general-\nenforcement authority and appointment authority are non-legislative acts that lead to\na constitutional violation, the governor is subject to sovereign immunity for those acts\nbecause they do not satisfy Ex parte Young.\n\n That leaves as “the sole basis” for the plaintiffs’ action against the governor his\nappropriation reduction—a legislative act—meaning legislative immunity\n“foreclose[s] suit” against him. See id. at 734. The Supreme Court used the word\n“suit,” not “remedy.” This approach is consistent with how the Supreme Court treats\nsovereign immunity: “Sovereign immunity does not merely constitute a defense to\n\n -23-\n\fmonetary liability or even to all types of liability. Rather, it provides an immunity\nfrom suit.” Fed. Mar. Comm’n, 535 U.S. at 766 (emphasis added).\n\n Even if the governor’s appropriation-reduction authority is not shielded by\nsovereign immunity through Ex parte Young, legislative immunity, a separate defense,\nforecloses suit against the governor. See Consumers Union, 446 U.S. at 734. See\nalso Tolman v. Finneran, 171 F. Supp. 2d 31, 37-38 (D. Mass. 2001) (“Short of the\nexceptional case, it is unlikely that Ex Parte Young is broad enough to abrogate\nlegislative immunity and authorize suit against a legislator acting in a purely\nlegislative capacity.”).3\n\n ******\n\n\n\n\n 3\n The plaintiffs argue that legislative immunity is a personal defense that does\nnot apply to official-capacity suits, like the one here. They cite Roach v. Stouffer, 560\nF.3d 860 (8th Cir. 2009), quoting a Second Circuit decision: “immunity, either\nabsolute or qualified, is a personal defense that is available only when officials are\nsued in their individual capacities; the immunities officials enjoy when sued\npersonally do not extend to instances where they are sued in their official capacities.”\nRoach, 560 F.3d at 870, quoting Almonte v. City of Long Beach, 478 F.3d 100, 106\n(2d Cir. 2007). But under Consumers Union, legislative immunity applies to official-\ncapacity suits. Consumers Union, 446 U.S. at 725-26, 734. See also Scott v. Taylor,\n405 F.3d 1251, 1254 n.4, 1255 (11th Cir. 2005) (analyzing Consumers Union and\nKentucky v. Graham, 473 U.S. 159 (1985), and “hold[ing] that the legislator\ndefendants in the instant official capacity suit for prospective relief are entitled to\nabsolute immunity.”). The Second Circuit–recognizing the tension between Almonte\nand Consumers Union–limited Almonte to “claims against local-level officials, rather\nthan state officials.” Rowland, 494 F.3d at 86, 88 (“claims for injunctive relief against\ndefendant state officials, sued in their official capacities, may be barred by the\ndoctrine of legislative immunity”). To the extent Roach conflicts with Consumers\nUnion, this court is bound by Consumers Union.\n\n -24-\n\f The judgment is reversed, and the case remanded for proceedings consistent\nwith this opinion.4\n ______________________________\n\n\n\n\n 4\n This court grants the plaintiffs’ motion for leave to file a sur-reply. In reaching\nthis decision, this court considered the sur-reply attached to the motion.\n\n -25-\n[END_CASE]", "role": "user" } ]
4,580,414	RYAN DATA EXCHANGE, LTD.; Rydex Technologies, LLC, Doing Business as Rydex, Plaintiffs - Appellees v. GRACO, INC., Defendant - Appellant Ryan Data Exchange, Ltd.; Rydex Technologies, LLC, Doing Business as Rydex, Plaintiffs - Appellants v. Graco, Inc., Defendant - Appellee Ryan Data Exchange, Ltd.; Rydex Technologies, LLC, Doing Business as Rydex, Plaintiffs - Appellees v. Graco, Inc., Defendant - Appellant	Ryan Data Exchange, Ltd. v. Graco, Inc.	2019-01-10	17-1451; 17-1746; 17-1772	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Colloton, Beam, Grasz", "parties": "", "opinions": [{"author": "BEAM, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-1451\n ___________________________\n\nRyan Data Exchange, Ltd.; Rydex Technologies, LLC, doing business as Rydex\n\n lllllllllllllllllllllPlaintiffs - Appellees\n\n v.\n\n Graco, Inc.\n\n lllllllllllllllllllllDefendant - Appellant\n ___________________________\n\n No. 17-1746\n ___________________________\n\nRyan Data Exchange, Ltd.; Rydex Technologies, LLC, doing business as Rydex\n\n lllllllllllllllllllllPlaintiffs - Appellants\n\n v.\n\n Graco, Inc.\n\n lllllllllllllllllllllDefendant - Appellee\n ___________________________\n\n No. 17-1772\n ___________________________\n\nRyan Data Exchange, Ltd.; Rydex Technologies, LLC, doing business as Rydex\n\n lllllllllllllllllllllPlaintiffs - Appellees\n\n v.\n\f Graco, Inc.\n\n lllllllllllllllllllllDefendant - Appellant\n ____________\n\n Appeals from United States District Court\n for the Southern District of Iowa - Des Moines\n ____________\n\n Submitted: September 26, 2018\n Filed: January 10, 2019\n ____________\n\nBefore COLLOTON, BEAM, and GRASZ, Circuit Judges.\n ____________\n\nBEAM, Circuit Judge.\n\n After a jury found in favor of Ryan Data Exchange (Rydex) in its breach of\ncontract claim against Graco,1 and against Graco in its counterclaims against Rydex,\nGraco sought to set the jury's verdict aside, renewed its motion for judgment as a\nmatter of law, and moved for new trial, all of which the district court2 denied. The\ndistrict court further awarded $204,221.50 in attorney's fees to Rydex. Graco appeals.\nRydex also appeals, challenging the district court's reduction of its requested amount\nof attorney's fees. We affirm.\n\n\n\n\n 1\n The district court disposed of Rydex's claim for patent infringement against\nGraco ruling on a motion in limine prior to trial.\n 2\n The Honorable James E. Gritzner, United States District Judge for the Southern\nDistrict of Iowa.\n\n -2-\n\fI. BACKGROUND\n\n On September 13, 2005, Rydex and Graco entered into a Settlement and\nLicense Agreement (Agreement) in which Rydex granted Graco a patent license. In\nthe instant action, the parties litigated three provisions of the Agreement at trial: (1)\nthe provision wherein Rydex granted Graco an exclusive license to make, have made,\nuse, and sell articles covered by the patent (§ 3.0); (2) the Agreement's provision that\nif a third party were to infringe the patent, Rydex would have the initial choice and\nobligation to prosecute the infringement (§ 11); and (3) a provision stating that Graco\nwould pay Rydex royalties of 5% of the net selling price of its product using the\npatent (§ 4.1).\n\n Relevant to the instant litigation, in 2011, years after the parties entered into the\nAgreement, Rydex initiated a lawsuit alleging patent infringement against Badger\nMeter, Inc., Balcrank Corp., and Lincoln Industrial Corp. (collectively, Badger). The\ndistrict court found, and the trial evidence revealed, a unique set of circumstances\nregarding Badger's infringement, in that at the time Rydex and Graco entered into the\n2005 Agreement, both parties were aware that Badger was allegedly already\ninfringing the patent, and yet the Agreement purported to give Graco an exclusive\nright to the patent. In 2012 Rydex and Badger filed a stipulation of dismissal and\nagreed that Rydex's claims and Badger's counterclaims in the matter would be\ndismissed with prejudice. This dismissal between Rydex and Badger is the source of\nGraco's claim against Rydex for failure to prosecute infringement under the\nAgreement.\n\n Graco stopped paying royalties to Rydex as of December 31, 2013, as Graco\nbelieved that Rydex had breached the Agreement's exclusivity provision and the\npatent infringement prosecution provision (§§ 3 and 11) by allowing Badger to\ncontinue its infringement and by failing to fully prosecute the infringement claim\nagainst Badger. In May 2014, Rydex filed the instant complaint alleging breach of\ncontract and patent infringement by Graco. Graco countersued, also alleging breach\n\n -3-\n\fof contract and seeking declaratory judgments that the patent was invalid and that\nRydex had lost its right to receive royalty payments under the Agreement due to its\nalleged breaches.\n\n A jury trial was held in November 2016 on all of the contract claims then\npending. During trial Graco moved pursuant to Rule 50(a) for judgment as a matter\nof law at the close of Rydex's case-in-chief, claiming in part that it had established\nthrough cross-examination that Rydex had breached its duty under the Agreement to\nprosecute the Badger litigation, and that Rydex had breached the exclusivity provision\nof the Agreement. In ruling on Graco's motions from the bench, the district court held\nas a matter of law that Rydex had breached its duty to prosecute infringement as of\nthe date of the dismissal of the Badger litigation in 2012, and that Rydex was in\nbreach of the exclusivity provision of the Agreement from the date of the dismissal\nof the Badger litigation until the expiration of the patent on March 10, 2015.\nAccordingly, the court granted Graco's Rule 50 motion to that extent. There was no\nruling by the court as to whether Rydex breached the Agreement by failing to provide\nGraco an exclusive license from the date the parties entered into the Agreement in\n2005 until the dismissal of the Badger litigation in 2012.\n\n In that same colloquy, the district court additionally ruled as a matter of law that\nby way of Rydex's dismissal of the case against Badger and by failing to fully\nprosecute the matter, Rydex necessarily created an implied license (i.e., there existed\na reasonable inference that Rydex consented to Badger's use of the patent), at the very\nleast, with regard to Badger's past infringement, at the time of the dismissal of the\nlitigation against Badger. In a seeming attempt to correct any potential\nmisunderstanding of its rulings, the district court clarified that despite the terms of the\nAgreement, the record was clear that both parties operated under the Agreement with\nthe knowledge and understanding that there was some threat to either the validity of\nthe patent altogether, or the existence of potential infringing third parties, over a\nperiod of several years before Rydex ever initiated the action against Badger. Because\nof that knowledge on both sides, the court held it could not rule as a matter of law on\n\n -4-\n\fthe issue of Rydex's alleged breach of the Agreement at any time prior to the dismissal\nof the Badger litigation. The court held that particular issue of contract interpretation\nand breach was a matter for the jury.\n\n The parties discussed throughout, and after trial, how to \"package\" this case for\nthe jury in light of the court's Rule 50 rulings. Accordingly, the case was presented\nto the jury for very particular determinations with a verdict form consisting of five\nnarrow questions for the jury. Instruction 7, titled \"Elements of Breach of Contract,\"\nstated the elements required to prove a breach of contract under Iowa law, and also\ninstructed the jury regarding the district court's prior grant of judgment as a matter of\nlaw in favor of Graco:\n\n Regarding the Rydex Parties' breach of contract claim, it is for you to\n decide whether Graco breached the License Agreement by failing to pay\n royalties to the Rydex Parties for the period ending December 31, 2013,\n through the date of the expiration of the '180 patent on March 10, 2015.\n\n Regarding Graco's breach of contract claim, the Court has found as a\n matter of law that the Rydex Parties were not required to commence an\n infringement action prior to the filing of the Badger Litigation. The\n Court has also found as a matter of law that the Rydex Parties were in\n breach of the duty to prosecute infringement as of the date of the\n dismissal of the Badger Litigation on August 15, 2012. The Court has\n further found as a matter of law that the Rydex Parties were in breach of\n the exclusivity provision of the License Agreement from the date of the\n dismissal of the Badger Litigation on August 15, 2012, until the\n expiration of the '180 patent on March 10, 2015. You must accept these\n facts as having been proved. It is for you to decide whether the Rydex\n Parties were in breach of the exclusivity provision of the License\n Agreement from the date the parties entered into that license agreement\n on September 13, 2005, through the dismissal of the Badger Litigation\n on August 15, 2012.\n\n Instruction 8 informed the jury as to how to interpret the contract, including\nhow to consider the intent of the parties gleaned from surrounding circumstances and\n\n\n -5-\n\fthe contract language itself, how to give meaning to the contract language, and how\nto handle potentially ambiguous language, etc. Additionally, Instruction 11 instructed\nthe jury on the definition of an implied license, and specifically instructed that \"the\nCourt has ruled an implied license was created as to the Badger litigation when that\ncase was dismissed with prejudice on August 15, 2012, as to any Badger use of the\n'180 Patent prior to that date.\" There was no direct discussion of materiality in the\njury instructions or verdict form.\n\n Upon deliberation, the jury found, first, that Rydex proved at trial that Graco\nbreached the Agreement by failing to pay royalties to Rydex from December 31, 2013,\nthrough the date of the expiration of the patent on March 10, 2015; and awarded\nRydex $313,000 in damages. Next, in response to the query regarding the amount of\ndamages due Graco as a result of Rydex's breaches already determined by the court\nas a matter of law and laid out for the jury in Instruction 7 (i.e., its breach of duty to\nprosecute infringement and the breach of the exclusivity provision of the Agreement\nat the time of the Badger litigation dismissal), the jury answered \"$0.00.\" As to the\nquestion to the jury as to whether Graco proved that Rydex breached the Agreement\nby failing to provide Graco an exclusive license from the date the parties entered into\nthe Agreement on September 13, 2005, until the dismissal of the Badger litigation on\nAugust 15, 2012, the jury answered \"no.\"\n\n Post-trial, Graco, pursuant to Rule 50(b), renewed its motion for judgment as\na matter of law, asking the district court to grant judgment in its favor and to rule that\nRydex was not entitled to damages given the court's earlier ruling that Rydex breached\nthe Agreement. In its order on the post-trial requests, the district court made clear that\nalthough it had determined as a matter of law that Rydex breached the Agreement, it\nhad not made any determination as to materiality–the legal finding the court held was\nnecessary in order to preclude Rydex's recovery of the royalty payments. The court\nclarified that the materiality of a breach is a factual issue for the jury and reviewed the\ninstructions given the jury, the evidence presented at trial, and the verdict itself to\narrive at its determination that the jury necessarily determined that Rydex had not\n\n -6-\n\fmaterially breached the Agreement, as Rydex's breaches did not deprive Graco of a\nbenefit it justifiably expected. Too, the court additionally noted that evidence of\nGraco's continued use of the patent after Rydex's breaches in 2012 supported the jury's\nverdict, as Graco's continued exploitation of its license after what it now claims was\na breach of the terms of the Agreement, precluded Graco's nonperformance in\nwithholding royalty payments from Rydex. The district court likewise denied Graco's\nmotions to alter or amend the judgment, its motion for new trial, and its motion for\nremittitur upon similar reasoning. The district court subsequently awarded attorney's\nfees. These appeals ensued.\n\nII. DISCUSSION\n\n We review the district court's denial of Graco's motion for judgment as a matter\nof law de novo, viewing the record in a light most favorable to the verdict. Sturgis\nMotorcycle Rally, Inc. v. Rushmore Photo & Gifts, Inc., 908 F.3d 313, 322 (8th Cir.\n2018). \"We review a motion for new trial for abuse of discretion.\" Washington v.\nDenney, 900 F.3d 549, 558 (8th Cir. 2018) (quoting Smiley v. Gary Crossley Ford,\nInc., 859 F.3d 545, 552 (8th Cir. 2017)). \"[T]he law places a high standard on\noverturning a jury verdict because of the danger that the jury's rightful province will\nbe invaded when judgment as a matter of law is misused.\" Id. (alteration in original)\n(quoting Bavlsik v. Gen. Motors, LLC, 870 F.3d 800, 805 (8th Cir. 2017), cert.\ndenied, 138 S. Ct. 1991 (2018)). \"We are hesitant 'to interfere with a jury verdict,' as\nreflected in the 'analysis for considering renewed JML motions.'\" Id. (quoting\nBavlsik, 870 F.3d at 805, cert denied, 138 S. Ct. 1991 (2018)).\n\n In ruling on a motion for [judgment as a matter of law], the district court\n must (1) consider the evidence in the light most favorable to the\n prevailing party, (2) assume that all conflicts in the evidence were\n resolved in favor of the prevailing party, (3) assume as proved all facts\n that the prevailing party's evidence tended to prove, and (4) give the\n prevailing party the benefit of all favorable inferences that may\n reasonably be drawn from the facts proved. That done, the court must\n\n -7-\n\f then deny the motion if reasonable persons could differ as to the\n conclusions to be drawn from the evidence.\n\nId., 900 F.3d at 558-59 (alteration in original) (quoting Haynes v. Bee-Line Trucking\nCo., 80 F.3d 1235, 1238 (8th Cir. 1996)).\n\n A. Materiality Requirement under Iowa Contract Law\n\n On appeal, Graco argues, as it did to the district court in its Rule 50(a) and\n50(b) motions, that under Iowa law when a party breaches a contract it cannot enforce\nthe terms of the agreement or recover any damages under a breach of contract claim.\nGraco focuses on the element in Instruction 7–that to establish a breach of contract,\nthe party alleging breach must prove that it has done what the contract\nrequires–claiming that because it is undisputed that Rydex breached two provisions\nof the Agreement (its duty to provide exclusivity, and its duty to prosecute the\ninfringement), and that it did so prior to Graco's alleged breach on December 31,\n2013, (when it stopped making royalty payments), Rydex is not entitled to damages\nbecause it failed to prove it had \"done what the contract requires.\" Accordingly,\nGraco claims that the district court's finding of Rydex's breaches should have\nprecluded recovery for Rydex under Iowa law. Rydex counters that under Iowa law,\nfor a breach to excuse the performance of the non-breaching party and preclude\nrecovery, the breach must be material.\n\n This issue of materiality, as well as Graco's choice to continue receiving\nbenefits under the Agreement despite Rydex's breaches, were raised at myriad times\nthroughout this litigation including, but not limited to, the parties' pre-trial summary\njudgment filings, during trial by the district court and the parties in the discussion\nregarding Graco's motion for judgment as a matter of law at the close of Rydex's case-\nin-chief, and again post-trial in Graco's renewed motions. Too, on multiple occasions,\nthe district court discussed the unusual set of circumstances resulting from the facts\npresented in this case. We agree with the court's assessment. Despite the terms of the\n\n -8-\n\fAgreement, the record established that from the outset the parties were operating\nunder this Agreement with the knowledge and understanding that there was some\nthreat to either the validity of the patent or the existence of potential infringing third\nparties over a period of several years before the Badger litigation ensued, Rydex\nbreached the Agreement when it failed to fully prosecute the Badger litigation matter\nafter it filed suit, and there was a continuing period of time when Graco stopped\nmaking royalty payments and yet functioned under the Agreement with regard to the\nuse of the patent. These various points in time during the relationship of these\ncontracting parties were delineated by the district court's rulings, drove the parties'\nclosing arguments to the jury, and were the focus of the verdict form adopted by the\nparties.\n\n Under Iowa law, only a material breach could excuse Graco's nonperformance.\nKelly v. Iowa Mut. Ins. Co., 620 N.W.2d 637, 641 (Iowa 2000); Van Oort Constr. Co.\nv. Nuckoll's Concrete Serv., Inc., 599 N.W.2d 684, 692 (Iowa 1999). Indeed, in Van\nOort, a similar question presented itself when a party to a contract discontinued\nmaking agreed-upon payments based on its belief that the other contracting party had\nbreached, thereby excusing performance. 599 N.W.2d at 687-88. Thus, the only\nremaining dispute for the court was whether the breach at issue was material. Id. at\n692. \"[Subject to an exception not applicable here], it is a condition of each party's\nremaining duties to render performances to be exchanged under an exchange of\npromises that there be no uncured material failure by the other party to render any\nsuch performance due at an earlier time.\" Id. (alteration in original) (quoting\nRestatement (Second) of Contracts, § 237, at 215 (1981)). In Van Oort, the court,\nreviewing materiality as a mixed question of law and fact, held that the breach at issue\nwas material and thus the party was justified in suspending its performance under the\ncontract until such time when the breach was cured. 599 N.W.2d at 693.\n\n Applying Iowa law in the instant case, the district court's finding that Rydex\nhad, indeed, breached the contract did not end the inquiry as Graco now argues.\nRather, it is ultimately the materiality of the breaches that was determinative of the\n\n -9-\n\fissue and, indeed, is necessarily the reason the matters were presented to the jury\ndespite the district court's previous rulings. Although the jury was not presented with\nan instruction on materiality, given the parties' discussions throughout the trial, the\ndistrict court's rulings on the various motions throughout these proceedings, the\nevidence presented, the arguments made to the jury, and the jury instructions read in\ntheir entirety, the verdict can be characterized as one determining materiality. The\nmateriality concept was front and center in Rydex's closing arguments; and in fact, the\nparties discussed issues obviously addressing materiality throughout trial and\nsubmitted the district court's holdings regarding Rydex's breaches to the jury,\nindicating in fact that those holdings did not carry the day in the contract dispute. The\njury's conclusion that Graco be awarded $0.00 in damages as a result of Rydex's\nbreaches, viewed under our favorable standard of review lens, indicates the jury did\nnot find a material failing on the part of Rydex.3\n\n While Graco argues that the findings by the district court as a matter of law\nresolve this case in its favor, it is the jury's determinations in the face of these rulings\nthat determinatively resolve the materiality issue. These factual determinations were\nuniquely in the jury's purview and will not be upset on appeal. There was no error.4\n\n\n\n\n 3\n A fortiori, even with the district court's determination as a matter of law that\nRydex gave Badger an implied license to this patent from the date of the Agreement\nuntil the date the Badger litigation was dismissed, the jury still held that Rydex did not\nbreach the Agreement's exclusivity provision. As to that particular breach of contract\nclaim, the matter of materiality does not arise because the jury found no breach in the\nfirst instance.\n 4\n Given our de novo review and finding no error in the district court's denial of\nGraco's motion for judgment as a matter of law, it is axiomatic the district court did\nnot abuse its discretion in denying Graco's motion for new trial for the same reasons.\nDespite Graco's insistence the jury should have ruled differently, there was no\nmiscarriage of justice. Washington, 900 F.3d at 558.\n\n -10-\n\f B. Jury Instructions\n\n Graco additionally argues that the district court erred by failing to give\nadditional jury instructions it requested at conference, particularly its proffered\n\"conditions precedent-definition,\" which would have included directions regarding\nmateriality, and a \"duty of good faith and fair dealing\" instruction. This court's review\nis limited on jury instructions, reviewing only whether, taken as a whole, the\ninstructions given fairly and adequately represented the evidence and applicable law\nin light of the issues presented to the jury in a particular case. Zebley v. Heartland\nIndus. of Dawson, Inc., 625 F.3d 449, 455 (8th Cir. 2010). \"[A] district court's\ndecision to reject a proposed jury instruction also is reviewed for an abuse of\ndiscretion.\" Retz v. Seaton, 741 F.3d 913, 919 (8th Cir. 2014). We reverse \"when the\nerrors misled the jury or had a probable effect on the jury's verdict.\" United States v.\nThompson, 686 F.3d 575, 579 (8th Cir. 2012) (quoting United States v. Slagg, 651\nF.3d 832, 848 (8th Cir. 2011)). \"A district court has broad discretion in instructing\nthe jury, and jury instructions do not need to be technically perfect or even a model\nof clarity.\" United States v. Garcia-Gonon, 433 F.3d 587, 591 (8th Cir. 2006)\n(quoting United States v. Gianakos, 415 F.3d 912, 920 (8th Cir. 2005)).\n\n Graco did not object to the district court's exclusion of the two particular\ninstructions now discussed. Even if it had, after reviewing the arguments presented\non appeal in light of the manner in which this case was submitted to the jury, the\ninstructions on whole were an adequate statement of the law, reflected the theories of\nrecovery argued to the jury, and fairly and adequately represented the evidence and\napplicable law. Although a particular instruction regarding materiality was not\npresented to the jury, the arguments made to the jury accurately reflected Iowa\ncontract law and any error in omitting such an instruction, were we to assume error\noccurred at all, did not mislead the jury or effect the jury's verdict in this instance.\n\n\n\n\n -11-\n\f C. Attorney's Fees\n\n There are two standards of review at play on the issue of attorney's fees. On the\none hand, this court reviews de novo a district court's \"prevailing party\" determination\nin a contractual context. Johnson Reg'l Med. Ctr. v. Halterman, 867 F.3d 1013, 1020\n(8th Cir. 2017). On the other hand, the court of appeals reviews an award of attorney's\nfees for an abuse of discretion, which review occurs when the district court commits\na clear error of judgment in weighing the relevant factors. Id.; FutureFuel Chem. Co.\nv. Lonza, Inc., 756 F.3d 641, 649-50 (8th Cir. 2014). So, the determination as to who\nprevails is reviewed de novo and \"how much\" is reviewed for an abuse of discretion.\n\n The award of attorney's fees in this case arises from the Agreement itself, which\nprovided that \"[i]f litigation under this Agreement ensues because of a material\nbreach, the prevailing party shall be awarded its reasonable attorney's fees.\" \"[S]tate\nlaw governs the availability of attorney fees in diversity cases where no conflicting\nfederal statute or court rule applies.\" Burlington N. R.R. Co. v. Farmers Union Oil\nCo. of Rolla, 207 F.3d 526, 534 (8th Cir. 2000). The Iowa Code provides: \"When\njudgment is recovered upon a written contract containing an agreement to pay an\nattorney fee, the court shall allow and tax as a part of the costs a reasonable attorney\nfee to be determined by the court.\" Iowa Code Ann. § 625.22. An applicant for\nattorney's fees has the burden to prove that the services were reasonably necessary and\nthat the charges were reasonable in amount. Ales v. Anderson, Gabelmann, Lower &\nWhitlow, P.C., 728 N.W.2d 832, 842 (Iowa 2007). In making this reasonableness\ndetermination, the district court considers the time necessarily spent, the nature and\nextent of the service, the amount involved, the difficulty of handling and importance\nof the issues, the responsibility assumed and results obtained, the standing and\nexperience of the attorney in the profession, and the customary charges for similar\nservices. Id. \"Reductions may be made . . . for such things as partial success,\nduplicative hours or hours not reasonably expended.\" Boyle v. Alum-Line, Inc., 773\nN.W.2d 829, 833 (Iowa 2009) (quoting Sherman v. Kasotakis, 314 F. Supp. 2d 843,\n881 (N.D. Iowa 2004)). Reductions may also be made for \"block billing\" or poor\n\n -12-\n\frecord-keeping. Sherman, 314 F. Supp. 2d at 881. In the end, however, the award of\nattorney's fees rests in the sound discretion of the trial court.\n\n After trial, the district court determined that Rydex was the prevailing party\nand, based upon its analysis of the bills presented, awarded $204,221.50. In its\nreasonableness determination, the district court attributed the reduction of the\nremaining attorney's fees to its\n\n inability to discern separation between the infringement and contract\n claims, lack of sufficient billing records to precisely grasp the nature of\n work done, [Rydex's] success solely on a portion of the contract claim,\n the amount of the judgment in relation to amounts claimed, the\n complexity of the case which was essentially a straight forward contract\n dispute, and the Court's understanding of customary charges in the\n jurisdiction, in search of the 'reasonable attorney's fee' contemplated by\n the license Agreement.\n\nReviewing the district court's analysis of the Agreement as to attorney's fees in light\nof the filings by the parties and briefing on appeal as well as the jury verdict, we agree\nwith the court's determination that Rydex prevailed in this action and find no clear\nerror of judgment in the court's application of Iowa law in arriving at the adjusted\nfigure awarded. Contrary to Rydex's claim, nothing in our review of the record\nindicates the district court applied an arithmetically simplistic fee or mathematical\nformula, nor are we persuaded by Graco that a further reduction is warranted. Too,\nwe decline the invitation to apply a cap based on the alleged contingent fee agreement\nbetween Rydex and its counsel as advanced by Graco. While the record contains an\nacknowledgment that such an agreement exists, Iowa courts have not yet spoken on\nthe matter as presented. Applying a review of reasonableness as our guide, there was\nno abuse of discretion and the attorney's fees awarded stand as calculated.\n\nIII. CONCLUSION\n\n For the reasons stated herein, we affirm.\n ______________________________\n\n -13-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4357667/", "author_raw": "BEAM, Circuit Judge."}]}	COLLOTON	BEAM	GRASZ	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4580414/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: RYAN DATA EXCHANGE, LTD.; Rydex Technologies, LLC, Doing Business as Rydex, Plaintiffs - Appellees v. GRACO, INC., Defendant - Appellant Ryan Data Exchange, Ltd.; Rydex Technologies, LLC, Doing Business as Rydex, Plaintiffs - Appellants v. Graco, Inc., Defendant - Appellee Ryan Data Exchange, Ltd.; Rydex Technologies, LLC, Doing Business as Rydex, Plaintiffs - Appellees v. Graco, Inc., Defendant - Appellant\nCourt: U.S. Court of Appeals for the Eighth Circuit\nDate decided: 2019-01-10\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-1451\n ___________________________\n\nRyan Data Exchange, Ltd.; Rydex Technologies, LLC, doing business as Rydex\n\n lllllllllllllllllllllPlaintiffs - Appellees\n\n v.\n\n Graco, Inc.\n\n lllllllllllllllllllllDefendant - Appellant\n ___________________________\n\n No. 17-1746\n ___________________________\n\nRyan Data Exchange, Ltd.; Rydex Technologies, LLC, doing business as Rydex\n\n lllllllllllllllllllllPlaintiffs - Appellants\n\n v.\n\n Graco, Inc.\n\n lllllllllllllllllllllDefendant - Appellee\n ___________________________\n\n No. 17-1772\n ___________________________\n\nRyan Data Exchange, Ltd.; Rydex Technologies, LLC, doing business as Rydex\n\n lllllllllllllllllllllPlaintiffs - Appellees\n\n v.\n\f Graco, Inc.\n\n lllllllllllllllllllllDefendant - Appellant\n ____________\n\n Appeals from United States District Court\n for the Southern District of Iowa - Des Moines\n ____________\n\n Submitted: September 26, 2018\n Filed: January 10, 2019\n ____________\n\nBefore COLLOTON, BEAM, and GRASZ, Circuit Judges.\n ____________\n\nBEAM, Circuit Judge.\n\n After a jury found in favor of Ryan Data Exchange (Rydex) in its breach of\ncontract claim against Graco,1 and against Graco in its counterclaims against Rydex,\nGraco sought to set the jury's verdict aside, renewed its motion for judgment as a\nmatter of law, and moved for new trial, all of which the district court2 denied. The\ndistrict court further awarded $204,221.50 in attorney's fees to Rydex. Graco appeals.\nRydex also appeals, challenging the district court's reduction of its requested amount\nof attorney's fees. We affirm.\n\n\n\n\n 1\n The district court disposed of Rydex's claim for patent infringement against\nGraco ruling on a motion in limine prior to trial.\n 2\n The Honorable James E. Gritzner, United States District Judge for the Southern\nDistrict of Iowa.\n\n -2-\n\fI. BACKGROUND\n\n On September 13, 2005, Rydex and Graco entered into a Settlement and\nLicense Agreement (Agreement) in which Rydex granted Graco a patent license. In\nthe instant action, the parties litigated three provisions of the Agreement at trial: (1)\nthe provision wherein Rydex granted Graco an exclusive license to make, have made,\nuse, and sell articles covered by the patent (§ 3.0); (2) the Agreement's provision that\nif a third party were to infringe the patent, Rydex would have the initial choice and\nobligation to prosecute the infringement (§ 11); and (3) a provision stating that Graco\nwould pay Rydex royalties of 5% of the net selling price of its product using the\npatent (§ 4.1).\n\n Relevant to the instant litigation, in 2011, years after the parties entered into the\nAgreement, Rydex initiated a lawsuit alleging patent infringement against Badger\nMeter, Inc., Balcrank Corp., and Lincoln Industrial Corp. (collectively, Badger). The\ndistrict court found, and the trial evidence revealed, a unique set of circumstances\nregarding Badger's infringement, in that at the time Rydex and Graco entered into the\n2005 Agreement, both parties were aware that Badger was allegedly already\ninfringing the patent, and yet the Agreement purported to give Graco an exclusive\nright to the patent. In 2012 Rydex and Badger filed a stipulation of dismissal and\nagreed that Rydex's claims and Badger's counterclaims in the matter would be\ndismissed with prejudice. This dismissal between Rydex and Badger is the source of\nGraco's claim against Rydex for failure to prosecute infringement under the\nAgreement.\n\n Graco stopped paying royalties to Rydex as of December 31, 2013, as Graco\nbelieved that Rydex had breached the Agreement's exclusivity provision and the\npatent infringement prosecution provision (§§ 3 and 11) by allowing Badger to\ncontinue its infringement and by failing to fully prosecute the infringement claim\nagainst Badger. In May 2014, Rydex filed the instant complaint alleging breach of\ncontract and patent infringement by Graco. Graco countersued, also alleging breach\n\n -3-\n\fof contract and seeking declaratory judgments that the patent was invalid and that\nRydex had lost its right to receive royalty payments under the Agreement due to its\nalleged breaches.\n\n A jury trial was held in November 2016 on all of the contract claims then\npending. During trial Graco moved pursuant to Rule 50(a) for judgment as a matter\nof law at the close of Rydex's case-in-chief, claiming in part that it had established\nthrough cross-examination that Rydex had breached its duty under the Agreement to\nprosecute the Badger litigation, and that Rydex had breached the exclusivity provision\nof the Agreement. In ruling on Graco's motions from the bench, the district court held\nas a matter of law that Rydex had breached its duty to prosecute infringement as of\nthe date of the dismissal of the Badger litigation in 2012, and that Rydex was in\nbreach of the exclusivity provision of the Agreement from the date of the dismissal\nof the Badger litigation until the expiration of the patent on March 10, 2015.\nAccordingly, the court granted Graco's Rule 50 motion to that extent. There was no\nruling by the court as to whether Rydex breached the Agreement by failing to provide\nGraco an exclusive license from the date the parties entered into the Agreement in\n2005 until the dismissal of the Badger litigation in 2012.\n\n In that same colloquy, the district court additionally ruled as a matter of law that\nby way of Rydex's dismissal of the case against Badger and by failing to fully\nprosecute the matter, Rydex necessarily created an implied license (i.e., there existed\na reasonable inference that Rydex consented to Badger's use of the patent), at the very\nleast, with regard to Badger's past infringement, at the time of the dismissal of the\nlitigation against Badger. In a seeming attempt to correct any potential\nmisunderstanding of its rulings, the district court clarified that despite the terms of the\nAgreement, the record was clear that both parties operated under the Agreement with\nthe knowledge and understanding that there was some threat to either the validity of\nthe patent altogether, or the existence of potential infringing third parties, over a\nperiod of several years before Rydex ever initiated the action against Badger. Because\nof that knowledge on both sides, the court held it could not rule as a matter of law on\n\n -4-\n\fthe issue of Rydex's alleged breach of the Agreement at any time prior to the dismissal\nof the Badger litigation. The court held that particular issue of contract interpretation\nand breach was a matter for the jury.\n\n The parties discussed throughout, and after trial, how to \"package\" this case for\nthe jury in light of the court's Rule 50 rulings. Accordingly, the case was presented\nto the jury for very particular determinations with a verdict form consisting of five\nnarrow questions for the jury. Instruction 7, titled \"Elements of Breach of Contract,\"\nstated the elements required to prove a breach of contract under Iowa law, and also\ninstructed the jury regarding the district court's prior grant of judgment as a matter of\nlaw in favor of Graco:\n\n Regarding the Rydex Parties' breach of contract claim, it is for you to\n decide whether Graco breached the License Agreement by failing to pay\n royalties to the Rydex Parties for the period ending December 31, 2013,\n through the date of the expiration of the '180 patent on March 10, 2015.\n\n Regarding Graco's breach of contract claim, the Court has found as a\n matter of law that the Rydex Parties were not required to commence an\n infringement action prior to the filing of the Badger Litigation. The\n Court has also found as a matter of law that the Rydex Parties were in\n breach of the duty to prosecute infringement as of the date of the\n dismissal of the Badger Litigation on August 15, 2012. The Court has\n further found as a matter of law that the Rydex Parties were in breach of\n the exclusivity provision of the License Agreement from the date of the\n dismissal of the Badger Litigation on August 15, 2012, until the\n expiration of the '180 patent on March 10, 2015. You must accept these\n facts as having been proved. It is for you to decide whether the Rydex\n Parties were in breach of the exclusivity provision of the License\n Agreement from the date the parties entered into that license agreement\n on September 13, 2005, through the dismissal of the Badger Litigation\n on August 15, 2012.\n\n Instruction 8 informed the jury as to how to interpret the contract, including\nhow to consider the intent of the parties gleaned from surrounding circumstances and\n\n\n -5-\n\fthe contract language itself, how to give meaning to the contract language, and how\nto handle potentially ambiguous language, etc. Additionally, Instruction 11 instructed\nthe jury on the definition of an implied license, and specifically instructed that \"the\nCourt has ruled an implied license was created as to the Badger litigation when that\ncase was dismissed with prejudice on August 15, 2012, as to any Badger use of the\n'180 Patent prior to that date.\" There was no direct discussion of materiality in the\njury instructions or verdict form.\n\n Upon deliberation, the jury found, first, that Rydex proved at trial that Graco\nbreached the Agreement by failing to pay royalties to Rydex from December 31, 2013,\nthrough the date of the expiration of the patent on March 10, 2015; and awarded\nRydex $313,000 in damages. Next, in response to the query regarding the amount of\ndamages due Graco as a result of Rydex's breaches already determined by the court\nas a matter of law and laid out for the jury in Instruction 7 (i.e., its breach of duty to\nprosecute infringement and the breach of the exclusivity provision of the Agreement\nat the time of the Badger litigation dismissal), the jury answered \"$0.00.\" As to the\nquestion to the jury as to whether Graco proved that Rydex breached the Agreement\nby failing to provide Graco an exclusive license from the date the parties entered into\nthe Agreement on September 13, 2005, until the dismissal of the Badger litigation on\nAugust 15, 2012, the jury answered \"no.\"\n\n Post-trial, Graco, pursuant to Rule 50(b), renewed its motion for judgment as\na matter of law, asking the district court to grant judgment in its favor and to rule that\nRydex was not entitled to damages given the court's earlier ruling that Rydex breached\nthe Agreement. In its order on the post-trial requests, the district court made clear that\nalthough it had determined as a matter of law that Rydex breached the Agreement, it\nhad not made any determination as to materiality–the legal finding the court held was\nnecessary in order to preclude Rydex's recovery of the royalty payments. The court\nclarified that the materiality of a breach is a factual issue for the jury and reviewed the\ninstructions given the jury, the evidence presented at trial, and the verdict itself to\narrive at its determination that the jury necessarily determined that Rydex had not\n\n -6-\n\fmaterially breached the Agreement, as Rydex's breaches did not deprive Graco of a\nbenefit it justifiably expected. Too, the court additionally noted that evidence of\nGraco's continued use of the patent after Rydex's breaches in 2012 supported the jury's\nverdict, as Graco's continued exploitation of its license after what it now claims was\na breach of the terms of the Agreement, precluded Graco's nonperformance in\nwithholding royalty payments from Rydex. The district court likewise denied Graco's\nmotions to alter or amend the judgment, its motion for new trial, and its motion for\nremittitur upon similar reasoning. The district court subsequently awarded attorney's\nfees. These appeals ensued.\n\nII. DISCUSSION\n\n We review the district court's denial of Graco's motion for judgment as a matter\nof law de novo, viewing the record in a light most favorable to the verdict. Sturgis\nMotorcycle Rally, Inc. v. Rushmore Photo & Gifts, Inc., 908 F.3d 313, 322 (8th Cir.\n2018). \"We review a motion for new trial for abuse of discretion.\" Washington v.\nDenney, 900 F.3d 549, 558 (8th Cir. 2018) (quoting Smiley v. Gary Crossley Ford,\nInc., 859 F.3d 545, 552 (8th Cir. 2017)). \"[T]he law places a high standard on\noverturning a jury verdict because of the danger that the jury's rightful province will\nbe invaded when judgment as a matter of law is misused.\" Id. (alteration in original)\n(quoting Bavlsik v. Gen. Motors, LLC, 870 F.3d 800, 805 (8th Cir. 2017), cert.\ndenied, 138 S. Ct. 1991 (2018)). \"We are hesitant 'to interfere with a jury verdict,' as\nreflected in the 'analysis for considering renewed JML motions.'\" Id. (quoting\nBavlsik, 870 F.3d at 805, cert denied, 138 S. Ct. 1991 (2018)).\n\n In ruling on a motion for [judgment as a matter of law], the district court\n must (1) consider the evidence in the light most favorable to the\n prevailing party, (2) assume that all conflicts in the evidence were\n resolved in favor of the prevailing party, (3) assume as proved all facts\n that the prevailing party's evidence tended to prove, and (4) give the\n prevailing party the benefit of all favorable inferences that may\n reasonably be drawn from the facts proved. That done, the court must\n\n -7-\n\f then deny the motion if reasonable persons could differ as to the\n conclusions to be drawn from the evidence.\n\nId., 900 F.3d at 558-59 (alteration in original) (quoting Haynes v. Bee-Line Trucking\nCo., 80 F.3d 1235, 1238 (8th Cir. 1996)).\n\n A. Materiality Requirement under Iowa Contract Law\n\n On appeal, Graco argues, as it did to the district court in its Rule 50(a) and\n50(b) motions, that under Iowa law when a party breaches a contract it cannot enforce\nthe terms of the agreement or recover any damages under a breach of contract claim.\nGraco focuses on the element in Instruction 7–that to establish a breach of contract,\nthe party alleging breach must prove that it has done what the contract\nrequires–claiming that because it is undisputed that Rydex breached two provisions\nof the Agreement (its duty to provide exclusivity, and its duty to prosecute the\ninfringement), and that it did so prior to Graco's alleged breach on December 31,\n2013, (when it stopped making royalty payments), Rydex is not entitled to damages\nbecause it failed to prove it had \"done what the contract requires.\" Accordingly,\nGraco claims that the district court's finding of Rydex's breaches should have\nprecluded recovery for Rydex under Iowa law. Rydex counters that under Iowa law,\nfor a breach to excuse the performance of the non-breaching party and preclude\nrecovery, the breach must be material.\n\n This issue of materiality, as well as Graco's choice to continue receiving\nbenefits under the Agreement despite Rydex's breaches, were raised at myriad times\nthroughout this litigation including, but not limited to, the parties' pre-trial summary\njudgment filings, during trial by the district court and the parties in the discussion\nregarding Graco's motion for judgment as a matter of law at the close of Rydex's case-\nin-chief, and again post-trial in Graco's renewed motions. Too, on multiple occasions,\nthe district court discussed the unusual set of circumstances resulting from the facts\npresented in this case. We agree with the court's assessment. Despite the terms of the\n\n -8-\n\fAgreement, the record established that from the outset the parties were operating\nunder this Agreement with the knowledge and understanding that there was some\nthreat to either the validity of the patent or the existence of potential infringing third\nparties over a period of several years before the Badger litigation ensued, Rydex\nbreached the Agreement when it failed to fully prosecute the Badger litigation matter\nafter it filed suit, and there was a continuing period of time when Graco stopped\nmaking royalty payments and yet functioned under the Agreement with regard to the\nuse of the patent. These various points in time during the relationship of these\ncontracting parties were delineated by the district court's rulings, drove the parties'\nclosing arguments to the jury, and were the focus of the verdict form adopted by the\nparties.\n\n Under Iowa law, only a material breach could excuse Graco's nonperformance.\nKelly v. Iowa Mut. Ins. Co., 620 N.W.2d 637, 641 (Iowa 2000); Van Oort Constr. Co.\nv. Nuckoll's Concrete Serv., Inc., 599 N.W.2d 684, 692 (Iowa 1999). Indeed, in Van\nOort, a similar question presented itself when a party to a contract discontinued\nmaking agreed-upon payments based on its belief that the other contracting party had\nbreached, thereby excusing performance. 599 N.W.2d at 687-88. Thus, the only\nremaining dispute for the court was whether the breach at issue was material. Id. at\n692. \"[Subject to an exception not applicable here], it is a condition of each party's\nremaining duties to render performances to be exchanged under an exchange of\npromises that there be no uncured material failure by the other party to render any\nsuch performance due at an earlier time.\" Id. (alteration in original) (quoting\nRestatement (Second) of Contracts, § 237, at 215 (1981)). In Van Oort, the court,\nreviewing materiality as a mixed question of law and fact, held that the breach at issue\nwas material and thus the party was justified in suspending its performance under the\ncontract until such time when the breach was cured. 599 N.W.2d at 693.\n\n Applying Iowa law in the instant case, the district court's finding that Rydex\nhad, indeed, breached the contract did not end the inquiry as Graco now argues.\nRather, it is ultimately the materiality of the breaches that was determinative of the\n\n -9-\n\fissue and, indeed, is necessarily the reason the matters were presented to the jury\ndespite the district court's previous rulings. Although the jury was not presented with\nan instruction on materiality, given the parties' discussions throughout the trial, the\ndistrict court's rulings on the various motions throughout these proceedings, the\nevidence presented, the arguments made to the jury, and the jury instructions read in\ntheir entirety, the verdict can be characterized as one determining materiality. The\nmateriality concept was front and center in Rydex's closing arguments; and in fact, the\nparties discussed issues obviously addressing materiality throughout trial and\nsubmitted the district court's holdings regarding Rydex's breaches to the jury,\nindicating in fact that those holdings did not carry the day in the contract dispute. The\njury's conclusion that Graco be awarded $0.00 in damages as a result of Rydex's\nbreaches, viewed under our favorable standard of review lens, indicates the jury did\nnot find a material failing on the part of Rydex.3\n\n While Graco argues that the findings by the district court as a matter of law\nresolve this case in its favor, it is the jury's determinations in the face of these rulings\nthat determinatively resolve the materiality issue. These factual determinations were\nuniquely in the jury's purview and will not be upset on appeal. There was no error.4\n\n\n\n\n 3\n A fortiori, even with the district court's determination as a matter of law that\nRydex gave Badger an implied license to this patent from the date of the Agreement\nuntil the date the Badger litigation was dismissed, the jury still held that Rydex did not\nbreach the Agreement's exclusivity provision. As to that particular breach of contract\nclaim, the matter of materiality does not arise because the jury found no breach in the\nfirst instance.\n 4\n Given our de novo review and finding no error in the district court's denial of\nGraco's motion for judgment as a matter of law, it is axiomatic the district court did\nnot abuse its discretion in denying Graco's motion for new trial for the same reasons.\nDespite Graco's insistence the jury should have ruled differently, there was no\nmiscarriage of justice. Washington, 900 F.3d at 558.\n\n -10-\n\f B. Jury Instructions\n\n Graco additionally argues that the district court erred by failing to give\nadditional jury instructions it requested at conference, particularly its proffered\n\"conditions precedent-definition,\" which would have included directions regarding\nmateriality, and a \"duty of good faith and fair dealing\" instruction. This court's review\nis limited on jury instructions, reviewing only whether, taken as a whole, the\ninstructions given fairly and adequately represented the evidence and applicable law\nin light of the issues presented to the jury in a particular case. Zebley v. Heartland\nIndus. of Dawson, Inc., 625 F.3d 449, 455 (8th Cir. 2010). \"[A] district court's\ndecision to reject a proposed jury instruction also is reviewed for an abuse of\ndiscretion.\" Retz v. Seaton, 741 F.3d 913, 919 (8th Cir. 2014). We reverse \"when the\nerrors misled the jury or had a probable effect on the jury's verdict.\" United States v.\nThompson, 686 F.3d 575, 579 (8th Cir. 2012) (quoting United States v. Slagg, 651\nF.3d 832, 848 (8th Cir. 2011)). \"A district court has broad discretion in instructing\nthe jury, and jury instructions do not need to be technically perfect or even a model\nof clarity.\" United States v. Garcia-Gonon, 433 F.3d 587, 591 (8th Cir. 2006)\n(quoting United States v. Gianakos, 415 F.3d 912, 920 (8th Cir. 2005)).\n\n Graco did not object to the district court's exclusion of the two particular\ninstructions now discussed. Even if it had, after reviewing the arguments presented\non appeal in light of the manner in which this case was submitted to the jury, the\ninstructions on whole were an adequate statement of the law, reflected the theories of\nrecovery argued to the jury, and fairly and adequately represented the evidence and\napplicable law. Although a particular instruction regarding materiality was not\npresented to the jury, the arguments made to the jury accurately reflected Iowa\ncontract law and any error in omitting such an instruction, were we to assume error\noccurred at all, did not mislead the jury or effect the jury's verdict in this instance.\n\n\n\n\n -11-\n\f C. Attorney's Fees\n\n There are two standards of review at play on the issue of attorney's fees. On the\none hand, this court reviews de novo a district court's \"prevailing party\" determination\nin a contractual context. Johnson Reg'l Med. Ctr. v. Halterman, 867 F.3d 1013, 1020\n(8th Cir. 2017). On the other hand, the court of appeals reviews an award of attorney's\nfees for an abuse of discretion, which review occurs when the district court commits\na clear error of judgment in weighing the relevant factors. Id.; FutureFuel Chem. Co.\nv. Lonza, Inc., 756 F.3d 641, 649-50 (8th Cir. 2014). So, the determination as to who\nprevails is reviewed de novo and \"how much\" is reviewed for an abuse of discretion.\n\n The award of attorney's fees in this case arises from the Agreement itself, which\nprovided that \"[i]f litigation under this Agreement ensues because of a material\nbreach, the prevailing party shall be awarded its reasonable attorney's fees.\" \"[S]tate\nlaw governs the availability of attorney fees in diversity cases where no conflicting\nfederal statute or court rule applies.\" Burlington N. R.R. Co. v. Farmers Union Oil\nCo. of Rolla, 207 F.3d 526, 534 (8th Cir. 2000). The Iowa Code provides: \"When\njudgment is recovered upon a written contract containing an agreement to pay an\nattorney fee, the court shall allow and tax as a part of the costs a reasonable attorney\nfee to be determined by the court.\" Iowa Code Ann. § 625.22. An applicant for\nattorney's fees has the burden to prove that the services were reasonably necessary and\nthat the charges were reasonable in amount. Ales v. Anderson, Gabelmann, Lower &\nWhitlow, P.C., 728 N.W.2d 832, 842 (Iowa 2007). In making this reasonableness\ndetermination, the district court considers the time necessarily spent, the nature and\nextent of the service, the amount involved, the difficulty of handling and importance\nof the issues, the responsibility assumed and results obtained, the standing and\nexperience of the attorney in the profession, and the customary charges for similar\nservices. Id. \"Reductions may be made . . . for such things as partial success,\nduplicative hours or hours not reasonably expended.\" Boyle v. Alum-Line, Inc., 773\nN.W.2d 829, 833 (Iowa 2009) (quoting Sherman v. Kasotakis, 314 F. Supp. 2d 843,\n881 (N.D. Iowa 2004)). Reductions may also be made for \"block billing\" or poor\n\n -12-\n\frecord-keeping. Sherman, 314 F. Supp. 2d at 881. In the end, however, the award of\nattorney's fees rests in the sound discretion of the trial court.\n\n After trial, the district court determined that Rydex was the prevailing party\nand, based upon its analysis of the bills presented, awarded $204,221.50. In its\nreasonableness determination, the district court attributed the reduction of the\nremaining attorney's fees to its\n\n inability to discern separation between the infringement and contract\n claims, lack of sufficient billing records to precisely grasp the nature of\n work done, [Rydex's] success solely on a portion of the contract claim,\n the amount of the judgment in relation to amounts claimed, the\n complexity of the case which was essentially a straight forward contract\n dispute, and the Court's understanding of customary charges in the\n jurisdiction, in search of the 'reasonable attorney's fee' contemplated by\n the license Agreement.\n\nReviewing the district court's analysis of the Agreement as to attorney's fees in light\nof the filings by the parties and briefing on appeal as well as the jury verdict, we agree\nwith the court's determination that Rydex prevailed in this action and find no clear\nerror of judgment in the court's application of Iowa law in arriving at the adjusted\nfigure awarded. Contrary to Rydex's claim, nothing in our review of the record\nindicates the district court applied an arithmetically simplistic fee or mathematical\nformula, nor are we persuaded by Graco that a further reduction is warranted. Too,\nwe decline the invitation to apply a cap based on the alleged contingent fee agreement\nbetween Rydex and its counsel as advanced by Graco. While the record contains an\nacknowledgment that such an agreement exists, Iowa courts have not yet spoken on\nthe matter as presented. Applying a review of reasonableness as our guide, there was\nno abuse of discretion and the attorney's fees awarded stand as calculated.\n\nIII. CONCLUSION\n\n For the reasons stated herein, we affirm.\n ______________________________\n\n -13-\n[END_CASE]", "role": "user" } ]
4,580,415	R.J. ZAYED, in His Capacity as Court-Appointed Receiver for the Oxford Global Partners, LLC, Universal Brokerage FX, and Other Receiver Entities, Plaintiff - Appellant v. ASSOCIATED BANK, N.A., Defendant - Appellee	R.J. Zayed v. Associated Bank, N.A.	2019-01-10	17-1250	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Shepherd, Kelly, Grasz", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9887838/", "author_raw": ""}, {"author": "", "type": "040dissent", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9887839/", "author_raw": ""}, {"author": "GRASZ, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-1250\n ___________________________\n\nR.J. Zayed, In His Capacity As Court-Appointed Receiver For The Oxford Global\n Partners, LLC, Universal Brokerage FX, and Other Receiver Entities\n\n Plaintiff - Appellant\n\n v.\n\n Associated Bank, N.A.\n\n Defendant - Appellee\n ____________\n\n Appeal from United States District Court\n for the District of Minnesota\n ____________\n\n Submitted: May 17, 2018\n Filed: January 10, 2019\n ____________\n\nBefore SHEPHERD, KELLY, and GRASZ, Circuit Judges.\n ____________\n\nGRASZ, Circuit Judge.\n\n Over a period of several years, a group of scammers based in Minnesota\nswindled investors out of more than one hundred million dollars in a prolific Ponzi\n\nscheme utilizing numerous business entities. A receiver1 was appointed to take\ncharge of what assets remained in the business entities that were used to perpetrate\nthe scheme and to recover any assets he could for the victims of the fraud. The\nReceiver sued Associated Bank, N.A., which provided banking services to some of\nthe scammers’ entities, accusing the bank of aiding and abetting the Ponzi scheme.\nAt issue in this appeal is whether the district court2 correctly concluded there was not\nsufficient evidence to reasonably infer the bank knew about and assisted the\nscammers’ tortious conduct. Because a conclusion that the bank aided and abetted\nthe Ponzi scheme could only be reached through considerable conjecture and\nspeculation, we affirm the district court.\n\n I. Background\n\n From 2006 to 2009, five individuals — Trevor Cook, Christopher Pettengill,\nJason Beckman, Gerald Durand, and Patrick Kiley (“the scammers”) — perpetrated\na Ponzi scheme that took in over $193 million from investors and returned only $49\nmillion (all from new investors’ money). See United States v. Beckman, 787 F.3d\n466, 474 (8th Cir. 2015) (discussing the scheme in an appeal from some of the\nscammers’ criminal convictions). The scammers used a number of business entities\nthat went by several variations of names that included “UBS,” “Universal Brokerage,”\n“Oxford,” “Crown Forex,” and “Basel Group.” See id. at 475, 488; Zayed v.\nAssociated Bank, N.A. (“Zayed I”), 779 F.3d 727, 730 (8th Cir. 2015). They told\npotential investors that their investments would be held in segregated accounts,\n\n 1\n After this case was filed, the receiver, R.J. Zayed, was granted leave to recuse\nhimself from the case and withdrew; three other attorneys were appointed to act in his\ncapacity as receiver in this litigation. As in our prior opinion in this case, “the\nReceiver” is used to refer to the office of receiver and not any particular person.\nZayed v. Associated Bank, N.A. (“Zayed I”), 779 F.3d 727, 729 n.1 (8th Cir. 2015).\n 2\n The Honorable David S. Doty, United States District Judge for the District of\nMinnesota.\n\n -2-\n\ncompletely liquid, and invested in a currency exchange program through a Swiss\ncompany, Crown Forex, S.A. Zayed I, 779 F.3d at 730. Eventually, the scammers\nwere caught and ultimately sentenced to lengthy prison terms for various crimes\nincluding wire and mail fraud and money laundering. See Beckman, 787 F.3d at 477.\n\n When the fraud was uncovered in 2009, the U.S. Securities and Exchange\nCommission and the U.S. Commodity Futures Trading Commission filed civil actions\nagainst the scammers and their entities. In those civil actions, the district court\nappointed a receiver, granting him the power to take control over the scammers’\nentities and assets and to bring legal actions in order to discharge his duties.\n\n In 2013, the Receiver filed suit against Associated Bank for allegedly aiding\nand abetting the torts of fraud, breach of fiduciary duty, conversion, and negligent\nmisrepresentation. The allegations underlying these claims centered on one former\nAssociated Bank employee, Lien Sarles. Sarles helped open accounts for the\nscammers and then serviced those accounts at the bank. The Receiver alleged Sarles\nknew about and assisted in the scheme.\n\n Later that year, the district court granted Associated Bank’s motion to dismiss,\nconcluding that the Receiver had not sufficiently pled a plausible claim that the bank\naided and abetted the scammers’ tortious conduct. On appeal, this Court reversed the\ndistrict court’s dismissal, concluding the Receiver’s pleadings were sufficient to\nsurvive a motion to dismiss. See Zayed I, 779 F.3d 737.\n\n After remand and discovery, Associated Bank moved for summary judgment.\nThe district court granted the motion, concluding there was insufficient evidence that\nAssociated Bank knew of and provided substantial assistance to the scammers’\ntortious conduct. The Receiver filed a timely appeal.\n\n\n\n\n -3-\n\n II. Discussion\n\n The Receiver argues on appeal that the district court erred in granting summary\njudgment to Associated Bank. Summary judgment is appropriate where a party\nshows “there is no genuine dispute as to any material fact” and the party “is entitled\nto judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute of fact is “genuine”\nif a factfinder could reasonably determine the issue in the non-moving party’s favor.\nSee Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factfinder’s\ndecision is reasonable if it is based on “sufficient probative evidence” and not on\n“mere speculation, conjecture, or fantasy.” See Williams v. Mannis, 889 F.3d 926,\n931 (8th Cir. 2018) (quoting Barber v. C1 Truck Driver Training, LLC, 656 F.3d 782,\n801 (8th Cir. 2011). “We review an order granting summary judgment de novo.”\nOppedahl v. Mobile Drill Int'l, Inc., 899 F.3d 505, 509 (8th Cir. 2018).\n\n The Receiver’s claims against Associated Bank are for aiding and abetting the\ntorts of conversion, breach of fiduciary duty, fraud, and negligent misrepresentation\n— all under Minnesota law. Aiding and abetting is not an independent tort, but a\ntheory of liability under which a party may be held jointly and severally liable for the\nunderlying tort. See Leiendecker v. Asian Women United of Minnesota, 848 N.W.2d\n224, 228 n.2 (Minn. 2014); Witzman v. Lehrman, Lehrman & Flom, 601 N.W.2d 179,\n185–86 (Minn. 1999).\n\n Under Minnesota law, a plaintiff must show three things to hold a defendant\nliable for aiding and abetting a tort: first “the primary tortfeasor must commit a tort\nthat causes an injury to the plaintiff,” second “the defendant must know that the\nprimary tortfeasor's conduct constitutes a breach of duty,” and third “the defendant\nmust substantially assist or encourage the primary tortfeasor in the achievement of the\nbreach.” Zayed I, 779 F.3d at 733 (quoting Witzman, 601 N.W.2d at 187).\n\n\n\n\n -4-\n\n The parties do not dispute the first element, that the scammers committed torts.\nThe question in this case is whether Associated Bank knew that the scammers were\nengaged in the tortious Ponzi scheme, and substantially assisted the scammers in\nachieving that scheme. See id. at 733.\n\n A. Knowledge of the Ponzi Scheme\n\n 1. Actual Knowledge\n\n Under Minnesota law, the scienter (knowledge requirement) for aiding and\nabetting is “actual knowledge.” Varga v. U.S. Bank Nat. Ass’n, 952 F. Supp. 2d 850,\n857 (D. Minn. 2013) aff’d, 764 F.3d 833 (8th Cir. 2014) (applying Minnesota law).\nThe evidence necessary to sufficiently show actual knowledge “depends in part on\nthe particular facts and circumstances of each case.” Witzman, 601 N.W.2d at 188.\n“[W]here there is a minimal showing of substantial assistance, a greater showing of\nscienter is required.” Id. (quoting Camp v. Dema, 948 F.2d 455, 459 (8th Cir.1991)).\nCourts consider “[f]actors such as the relationship between the defendant and the\nprimary tortfeasor, the nature of the primary tortfeasor’s activity, the nature of the\nassistance provided by the defendant, and the defendant’s state of mind.” Id.\n\n “While knowledge may be shown by circumstantial evidence, ‘courts stress that\nthe requirement is actual knowledge and the circumstantial evidence must\ndemonstrate that the aider-and-abettor actually knew of the underlying wrongs\ncommitted.’” Varga, 952 F. Supp. 2d at 857 (quoting Wiand v. Wells Fargo Bank,\nN.A., 938 F. Supp. 2d 1238, 1244 (M.D. Fla. 2013)). A plaintiff must show more than\n“awareness of the conduct in question . . ., that it raised ‘red flags,’ . . . or even that\nit amounted to gross negligence,” but must show that the defendant “was aware of the\nwrongfulness of the challenged conduct.” Id. at 858 (citing Camp, 948 F.2d at 459,\n463; Wiand, 938 F. Supp. 2d at 1244; Witzman, 601 N.W.2d at 188).\n\n\n\n -5-\n\n The summary judgment record contains no direct evidence Sarles or anyone at\nAssociated Bank knew of the Ponzi scheme. In fact, all of the direct evidence was\nto the contrary. The Receiver’s own expert witness agreed that “[there was] nobody\nat the bank who put this information together and determined there was a Ponzi\nscheme going on.” Associated Bank’s expert stated that he agreed with the\nReceiver’s expert that “there is no one at Associated Bank who actually concluded\n. . . that the [scammers’ entities] were engaged in a Ponzi scheme.” David Martens,\nAssociated Bank’s regional security officer, testified based on his extensive law\nenforcement experience that he believed Sarles’s actions were attributable to “sloppy\nbanking” rather than anything “nefarious.” Two of Sarles’s coworkers testified that\nthey did not observe anything that would indicate to them that Sarles knew about the\nPonzi scheme. Ryan Rasske, Associated Bank’s Director of Risk and Financial\nCrimes, testified that he had not uncovered any evidence that Sarles or anyone at\nAssociated Bank knew of the Ponzi scheme. Furthermore, an employee of one of the\nscammers testified that she had no evidence Sarles knew of the Ponzi scheme. One\nof the scammers, Pettengill, said that Sarles was not part of the fraud. Another\nscammer, Cook, testified that Sarles “knew nothing about what was going on.”\n\n Given this absence of direct evidence, the Receiver attempted to amass\ncircumstantial evidence that he claimed showed that Sarles had actual knowledge of\nthe Ponzi scheme. But none of the circumstantial evidence compiled by the Receiver\npoints to anything more than “sloppy banking” by Sarles or “red flags” that, with the\nbenefit of hindsight, should have prompted further investigation or inquiry. Even on\nthis twenty-seven volume, six-thousand page record, the leap cannot be made to infer\nthat Sarles or anyone at Associated Bank actually knew about the Ponzi scheme\nwithout resorting to speculation and conjecture. See Williams, 889 F.3d at 931\n(discussing the summary judgment standard).\n\n Sarles first met Kiley, one of the scammers, around December 2007 when\nSarles pitched him on switching his business’s banking services to Associated Bank.\n\n -6-\n\nSarles, who held the position of assistant vice president at Associated Bank, had the\nprimary job duties of “marketing, opening new commercial accounts, and providing\naccount management and services to new and existing commercial customers.”\nSarles first opened an account for Kiley for the entity Universal Brokerage FX\nManagement, LLC in January 2008. Between then and June 2009, Sarles opened a\ntotal of eight accounts at Associated Bank for Kiley and fellow scammer Cook for\ndifferent entities.\n\n In June 2008, Sarles opened an account for “Crown Forex LLC” for Cook. The\nReceiver argues that the fact this account was opened in the name of a domestic entity\nshows that Sarles knew about the Ponzi scheme and was attempting to help the\nscammers avoid detection. According to Cook, he intended to open an account for\nCrown Forex, S.A., the Swiss investing entity, but Sarles suggested that he open it\nunder the name of a domestic limited liability company. Cook explained that he did\nnot think Sarles thought this was improper or fraudulent:\n\n [Sarles] certainly understood it was . . . a different entity, but . . . I don’t\n think that he thought there was a fraud going on. . . . I think it’s common\n that businesses have all kinds of holding companies and sub entities and\n different entities. . . . [W]e told him that . . . the Crown Forex, LLC\n account was part of Crown Forex, and it was on their books, so I’m not\n so sure I’d say [Sarles] knew something, you know, fishy was going on.\n\nSarles himself testified that he believed that in order for foreign business entities to\nopen a bank account, “they have to have a domestic entity.” He was merely following\npolicy for foreign-owned corporations, and nothing in the record suggests Sarles\nthought that it was in any way illegitimate or fraudulent to open the Crown Forex\naccount under the name of a domestic entity.\n\n The Crown Forex LLC account was opened as a “checking/money market”\naccount. The Receiver argues that opening this type of account was intended by\n\n\n -7-\n\nSarles to help the scammers avoid detection. He claims that Sarles should have\nselected an account type that indicated fiduciary status or that it held investor funds.\nBut the Receiver has not pointed to anything in the record that shows that Associated\nBank had such specific types of accounts, much less policies requiring their use. In\nfact, the portfolio specialist who actually prepared the account opening form selected3\nthe “checking/money market” option from a list of account types that also included\n“savings, time deposit, [and] loan account.” The record does not support the claim\nthat the Crown Forex account was nefariously opened as a checking account by Sarles\nor anyone else at Associated Bank to avoid detection and further the Ponzi scheme.\n\n The Receiver also places great emphasis on the fact that Sarles opened the\nCrown Forex LLC account for Cook without receiving proof that the company was\nregistered with the Minnesota Secretary of State. Sarles received all the necessary\ndocumentation, except for the proof of registration, but did receive an application for\narticles of incorporation which he was told was being submitted to the state. Sarles\ntestified that he:\n\n receiv[ed] the application that was completed that was en route to be\n filed with the Secretary of State, therefore, the rapport and trust that I\n believed I had, I was providing above and beyond customer service to\n execute the client’s request by opening up the account with the\n assumption I’d be receiving the state certificate within that two week\n period or so it takes to generate from the Secretary of State.\n\nThe account opening form, under the section for “documentation provided,” listed\n“[r]eport from a state registration information website,” although the specialist who\nopened the account was not sure if she typed that response or selected it from a drop-\n\n\n 3\n There is some evidence that Sarles directed (or that a banker in his position\nwould typically direct) the selection of the account type. Assuming Sarles was\nresponsible for the choice of account type, this fact still does not support the\nReceiver’s allegation of actual knowledge.\n\n -8-\n\ndown menu as “the one option that closest describe[d] the one item [of\ndocumentation] that we ha[d].” Sarles did not follow up on the missing paperwork.\nHe said that after the Ponzi scheme was uncovered, he learned that Crown Forex LLC\nwas never registered with the state. Of the eight accounts opened by the scammers\nat Associated Bank, only the Crown Forex LLC account and an account for Basel\nGroup LLC were opened without certifying that the entities were registered with the\nstate. Concluding that Sarles opened the Crown Forex and Basel Group accounts\nbecause he knew that Cook and others were engaged in a Ponzi scheme, rather than\nsimply out of an effort to please an important client, would require speculation and\nis not a reasonable inference.\n\n The Receiver also emphasizes that Sarles socialized with the scammers. The\nprecise extent of that socialization is disputed, but none of the evidence supports an\ninference that Sarles learned about the Ponzi scheme through it. Interestingly, the\nReceiver also resorts to arguing that Sarles had knowledge of the Ponzi scheme\nbecause the scammers would sometimes quote lines about greed from movies like\nWall Street and Boiler Room. This argument borders on absurdity and illustrates the\nlack of meaningful evidence that Sarles had knowledge of the Ponzi scheme. Quoting\nlines from movies about greed and scheming does not reveal one to be running a\nPonzi scheme any more than quoting lines from The Godfather reveals one to be a\nmobster.\n\n The receiver also claimed that Sarles duped a contractor who worked for the\nscammers into signing a blank account opening form. This assertion is unsupported\nby the record. The contractor never claimed the form was blank or that he was\nmisled. The form he signed made him a signatory so he could cash checks and get\na company credit card, as he had with their Wells Fargo account, in order to purchase\nsupplies for the maintenance of the mansion in which the scammers conducted their\nbusiness.\n\n\n\n -9-\n\n Another basis for the Receiver’s claim that Sarles knew about the Ponzi scheme\nis the allegations by one of the scammers that Sarles was present at certain meetings.\nPettengill claimed that around April 2008 he saw Sarles in attendance at an\ninvestment seminar at the Van Dusen mansion, although Sarles testified that he never\nattended any such seminars. The Receiver claims that a sophisticated banker like\nSarles must have known that the investment pitch was a scam. But Pettengill\nadmitted that Sarles did not say or do anything that would lead him to believe that\nSarles did not believe the investment pitch or knew it was fraudulent.\n\n Pettengill also claimed that Sarles attended a meeting in April or May 2008 at\nwhich the scammers discussed segregating client accounts. A closer look at this\nclaim shows that it does not support an inference that Sarles knew the scammers were\nengaged in fraud. Pettengill himself said that he did not know client funds were\nbeing used to make up the shortfall in money until months after this meeting. Prior\nto the meeting, the scammers had been advised by their attorneys to “repaper” their\nclient accounts by segregating their single, pooled bank account into separate client\naccounts. According to Pettengill, it was discussed that Associated Bank would\nfacilitate the wire transfers from the Swiss Crown Forex account, back to the U.S.\nCrown Forex account, then back again into segregated client accounts in Switzerland.\nBut Pettengill admitted in his deposition that the manner in which the transfers were\nto be done — by performing multiple transfers in order to cover up the shortfall of\nmoney in the Swiss account — was never disclosed to Sarles. Pettengill claimed that\nit was “implied” that they were covering up a shortfall of money, although he\nprovides no support for this assertion. Even assuming Sarles knew there was a\nshortfall in the Swiss Crown Forex entity, and that the scammers wanted to avoid\ndisclosing that, it does not follow that Sarles knew their enterprise was a Ponzi\nscheme or that they were engaged in tortious conduct. If true, this should have been\na red flag, but it does not show actual knowledge. Moreover, Pettengill never\nclaimed the scammers discussed in Sarles’s presence using new clients’ money to\nmake up for the shortfall in the Swiss Crown Forex account. Pettengill’s testimony\n\n -10-\n\nis insufficient to support an inference that Sarles knew the scammers were engaged\nin tortious conduct.\n\n The Receiver also claimed Sarles improperly approved transfers of money\nbetween bank accounts for the scammers. Specifically, he claims that Sarles\napproved transfers at Cook’s behest from the Crown Forex accounts, on which Kiley\nand Smith — but not Cook — were signatories, into accounts on which Cook was\na signatory. Only three of the transfer forms cited by the Receiver, however, actually\nreference Cook. Assuming that Sarles authorized these transfers for Cook, there is\nstill no evidence that the account signatories did not approve of these transfers. Smith\nwould at times transfer money by forwarding emailed directions from Cook to the\nbank. Even if Sarles had transferred money at Cook’s behest on an account on which\nSmith was the signatory, this would only show that he was being sloppy with\nformalities when he knew that Cook and Smith (and the other scammers) were\nworking together — it would not show that Sarles knew there was a Ponzi scheme\nafoot. Additionally, in June 2009, Cook requested a $600,000 withdrawal from the\nOxford Global account, on which he was a signatory. The withdrawal was approved\nonly after Sarles contacted his supervisor and the bank ensured that all procedures\nhad been properly followed. Nothing about these transfers or the withdrawal suggest\nthat Sarles knew about the Ponzi scheme.\n\n The Receiver argues that in 2009, money continued to flow in and out of the\nCrown Forex account, even “after Sarles had learned that Swiss authorities had shut\ndown Crown Forex, S.A., rendering the sole investment vehicle of the scheme\nobviously impossible.” But the record contains no evidence to support the claim that\nSarles knew the Swiss entity had been shut down. In fact, the Receiver’s own expert\nreport states that if Associated Bank had the proper due diligence procedures, it\nwould have learned of this information, but does not claim that anyone at the bank\nactually did learn of it.\n\n\n\n -11-\n\n Finally, the Receiver argues in his brief that just before Sarles was fired, “the\nBank itself began a drumbeat of instructions to Sarles to delete emails – prohibiting\nhim from using the email account unless he did so,” and that “[n]othing indicates that\nSarles failed to destroy these documents, as the Bank instructed him to do.”\nExamination of these emails shows they are not the nefarious messages the Receiver\nmakes them out to be. Rather, they are standard notifications that the storage on\nSarles’s email inbox was full, sent by the bank’s Microsoft Exchange Server.\nMoreover, prior to these notifications and Sarles’s termination, his email inbox was\npreserved and reviewed by a bank security officer, which revealed “[n]othing out of\nthe ordinary.” The characterization of these emails by the Receiver to this Court is,\nat best, misleading. Sarles’s full inbox does not show him to be aware of the Ponzi\nscheme or that the bank was attempting to cover anything up.\n\n In sum, the evidence cited by the Receiver simply does not support a\nreasonable inference that Sarles or anyone at Associated Bank had actual knowledge\nof the scammers’ torts. Nor does looking to all the circumstantial evidence\ncollectively allow for such a conclusion without resorting to speculation and\nconjecture. After all, “in law as in mathematics zero plus zero equals zero.”\nHenderson v. Kennedy, 253 F.3d 12, 19 (D.C. Cir. 2001).\n\n 2. Constructive Knowledge\n\n The Receiver alternatively argues that he need not show that Associated Bank\nhad actual knowledge of the scammers’ torts to impose aiding and abetting liability,\nbut that “constructive knowledge” is sufficient. We disagree, but in any event, the\nsummary judgment record here is insufficient to support a finding of constructive\nknowledge.\n\n The Receiver rests his constructive knowledge argument on a single reference\nin the Minnesota Supreme Court’s opinion in Witzman, in which the Court stated\n\n -12-\n\nwhile discussing aiding and abetting liability that “some courts” have found that a\ndefendant may be deemed to have constructive knowledge of a tort “where the\nprimary tortfeasor’s conduct is clearly tortious or illegal,” where “[the] defendant\n[has] a long-term or in-depth relationship with that tortfeasor,” and “where the\nconduct is [] a facial breach of duty.” 601 N.W.2d at 188. After making this\nobservation, however, the Court in Witzman applied an actual knowledge test. Id.\nWe agree with the district court in Varga, 952 F. Supp. 2d at 857, that under\nMinnesota law, “[c]onstructive knowledge will not suffice.”\n\n Even assuming that constructive knowledge could be sufficient, it cannot be\nimputed to Sarles and Associated Bank on this record. The actions of the scammers\nknown to Associated Bank were not “clearly tortious or illegal.” Rather, what was\nlater revealed to be a fraud was a sophisticated Ponzi scheme that went undetected for\nyears. Nor did Sarles or Associated Bank have “a long-term or in-depth relationship”\nwith the scammers. The professional relationship between the scammers and Sarles\nand the bank, even with Sarles’s socializing, does not meet this standard. Nor was\nthe Ponzi scheme “a facial breach of duty.” On its face, it appeared to be a legitimate\ninvesting business. Thus, a finding of constructive knowledge could not be supported\nby this record, even if constructive knowledge was sufficient under Minnesota law\nto impose aiding and abetting liability.\n\n B. Substantial Assistance in the Scheme\n\n In addition to showing actual knowledge, a plaintiff must show that a defendant\nprovided substantial assistance to the primary tortfeasor in order to impose aiding and\nabetting liability. Witzman, 601 N.W.2d at 188–89. This element is evaluated in\ntandem with the knowledge requirement. Id. Thus, the weaker the evidence of\nknowledge is, the greater the showing of substantial assistance must be. See id.\n“[C]onduct that inadvertently advances the [underlying tort] does not amount to\nsubstantial assistance.” Varga, 764 F.3d at (quoting Camp, 948 F.2d at 460). In\n\n -13-\n\naddition, “‘[s]ome element of blameworthiness’ must be present in the defendant’s\nassistance.” Id.\n\n The Minnesota Supreme Court has said that in the context of professionals,\n“‘substantial assistance’ means something more than the provision of routine\nprofessional services.” Witzman, 601 N.W.2d at 189. The Court in Witzman said that\nallegations against the defendant, an accounting firm, involved nothing more than the\n“performance of routine accounting duties,” and went on to say: “If we were to\nrecognize that such routine services constitute substantial assistance, then it would\nbe the rare accountant indeed who would not be subject to automatic liability merely\nbecause his client happened to be a tortfeasor.” Id. The same could easily be said of\nbanks.\n\n While the Receiver’s claim fails because of the lack of evidence of actual\nknowledge, we also conclude that no reasonable factfinder could conclude that\nAssociated Bank provided substantial assistance to the scammers in the commission\nof their torts. The evidence that the Receiver claims shows substantial assistance is\nlargely the same evidence it claims shows knowledge. The substantial assistance\nelement is found wanting for many of the same reasons as the knowledge element.\nThe record shows nothing beyond the provision of routine banking services or, at\nworst, sloppy banking. The bank provided nothing beyond its standard professional\nservices to assist the scammers in perpetrating their Ponzi scheme. No reasonable\nfactfinder could conclude that Associated Bank provided substantial assistance to the\nscammers’ tortious conduct.\n\n\n\n\n -14-\n\n III. Conclusion\n\n To show a genuine dispute of material fact, a party must provide more than\nconjecture and speculation. The Receiver has not done so. We affirm.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4357668/", "author_raw": "GRASZ, Circuit Judge."}, {"author": "KELLY, Circuit Judge, dissenting", "type": "dissent", "text": "KELLY, Circuit Judge, dissenting.\n\n “[A] ‘judge’s function’ at summary judgment is not ‘to weigh the evidence and\ndetermine the truth of the matter but to determine whether there is a genuine issue for\ntrial.’” Tolan v. Cotton, 572 U.S. 650, 656 (2014) (per curiam) (quoting Anderson,\n477 U.S. at 249). And it is “axiom[atic] that in ruling on a motion for summary\njudgment, ‘[t]he evidence of the nonmovant is to be believed, and all justifiable\ninferences are to be drawn in his favor.’” Id. at 651 (second alteration in original)\n(quoting Anderson, 477 U.S. at 255). Our task at summary judgment is particularly\ndelicate where, as here, the record is fact-intensive and much of the evidence is\ncircumstantial. After all, we have explained that “[a] given piece of circumstantial\nevidence may equally support many inferences,” and it is a “fallacy” to “assum[e] that\nonly inferences that are more probable than other inferences may be drawn from\n[such] evidence.” Grinder v. S. Farm Bureau Cas. Ins. Co., 590 F.2d 741, 744 (8th\nCir. 1979). The “drawing of legitimate inferences”—that is, deciding which of the\npermissible inferences ultimately to draw—is a function for the jury. Anderson, 477\nU.S. at 255. Our task here is simply to assess “whether the evidence presents a\nsufficient disagreement to require submission to a jury or whether it is so one-sided\nthat one party must prevail as a matter of law.” Id. at 251–52. In my view, the\nevidence here is not “so one-sided,” and I would reverse the judgment of the district\ncourt and allow the Receiver’s claims to proceed to trial.\n\n\n\n\n -15-\n\n When properly viewed in the light most favorable to the Receiver, the record\nreveals a genuine dispute of material fact as to both (1) whether Sarles actually\n“kn[ew] that the primary tortfeasor[s’] conduct constitute[d] a breach of duty;”4 and\n(2) whether he “substantially assist[ed] or encourage[d] the primary tortfeasor[s] in\nthe achievement of the breach.” Zayed I, 779 F.3d at 733 (quoting Witzman, 601\nN.W.2d at 187). As the court notes, we evaluate these elements in tandem, Witzman,\n601 N.W.2d at 188, and both can be proved by circumstantial evidence, K & S P’ship\nv. Cont’l Bank, N.A., 952 F.2d 971, 977 (8th Cir. 1991); Ariola v. City of Stillwater,\n889 N.W.2d 340, 356–57 (Minn. Ct. App. 2017), review denied (Apr. 18, 2017).\n“[W]here there is a minimal showing of substantial assistance, a greater showing of\nscienter is required.” Camp v. Dema, 948 F.2d 455, 459 (8th Cir. 1991) (quoting\nMetge v. Baehler, 762 F.2d 621, 624 (8th Cir. 1985)). “Factors such as the\nrelationship between the defendant and the primary tortfeasor, the nature of the\nprimary tortfeasor’s activity, the nature of the assistance provided by the defendant,\nand the defendant’s state of mind all come into play.” Witzman, 601 N.W.2d at 188.\n\n I.\n\n Here, the Receiver has “present[ed] evidence from which a jury might”\nconclude that Sarles knew that the principals were committing the torts of conversion,\nbreach of fiduciary duty, fraud, and false representations, and that he substantially\nassisted them in committing those torts. Anderson, 477 U.S. at 257. Viewed in the\nlight most favorable to the Receiver, the record demonstrates that Sarles was\nintimately aware of the principals’ business (which was a fraud); took action to assist\n\n\n\n 4\n Were it necessary to reach the issue, I would be inclined to agree with the\ncourt that Minnesota does not recognize a “constructive knowledge” standard. But\nit is unnecessary to resolve that issue now because there is substantial circumstantial\nevidence from which a jury could reasonably conclude that Sarles had actual\nknowledge of the principals’ tortious conduct.\n\n -16-\n\nthem in furthering their tortious conduct; and was unusually close with the principals,\nand with Cook in particular.\n\n For instance, a jury could reasonably conclude that Sarles knew of the tortious\nconduct based in part on his attendance at several key meetings in 2008. Pettengill\ntestified that around April 2008, he saw Sarles at an investment seminar, which Sarles\nattended to “see what [the principals] did.” As we have previously described, the\nprincipals would pitch a “risk-free,” “completely safe” investment scheme that duped\ninvestors into believing that “they would be investing in foreign currency trading,\nwhich was guaranteed and had a fixed rate every month.” Beckman, 787 F.3d at 475\n(cleaned up). Sarles was an experienced banker who had received bank secrecy and\nanti-money laundering training. At the very least, a jury could reasonably conclude\nthat from this point on, Sarles began to gather sufficient information to know that the\nprincipals were dishonest and pitching a scam. The court, however, dismisses this\nevidence because Pettengill agreed that Sarles said nothing at the seminar to indicate\nhe (Sarles) knew the pitch was fraudulent. But Pettengill said that his only interaction\nwith Sarles at the seminar was to exchange a simple greeting, and that it was before\nthe seminar even began.\n\n After the investment seminar, Sarles attended a critical meeting where,\naccording to Pettengill, the principals made Sarles aware of two key facts: (1) that the\nSwiss Crown Forex S.A. account had a $2 million balance that they needed to make\nappear as a $15 million balance through a “repapering” effort involving wire transfers\nfrom the insolvent Swiss account to a U.S. account; and (2) that they needed a\n“friendly banker” to “make it look clean” and “get around Wells Fargo’s questioning\nall the wire transfers” and that bank’s growing suspicions. According to Pettengill,\nSarles “agree[d] to the process,” which was impliedly illegal, and said something\nalong the lines of, “Yes, I can move the money in this way.” Again according to\nPettengill, Cook said that Sarles “[is] going to be our new banker. . . . And he will do\nwhatever we need to do to open accounts and do the wire transfer and do whatever\n\n -17-\n\nwe need[] to have done.” Pettengill’s impression was that Cook chose to work\nspecifically with Sarles because Sarles “was our guy and . . . would do whatever Cook\nwanted, even if it was legal or illegal.”\n\n The timing of these events is important. It was after attending the seminar and\nthe above-described meeting that Sarles helped the principals open several accounts\nthat became central to the principals’ torts. The first was the U.S. Crown Forex LLC\naccount. Kiley and Smith were the only signatories on the account, but Sarles opened\nit at Cook’s direction. Sarles knew that the account was supposed to hold investor\nfunds, yet evidence in the record indicates that it was opened as a “Checking/Money\nMarket” account. Moreover, although the account-opening form states that a\n“[r]eport from a state registration information website” had been received to verify\nLLC status, Sarles admitted that “when [he] opened the Crown Forex LLC account,\n[he] was not provided with Secretary of State registration documentation,” in\nviolation of Associated Bank’s procedures. It is true, as the court notes, that Sarles\ntestified that all he was doing by opening the account without proper documentation\nwas providing “above and beyond customer service.” But it is not up to us to\ndefinitively credit this testimony where there is conflicting evidence in the record.5\nAlthough Sarles claims he expected to receive the required documents at a later date,\n\n\n 5\n There is plenty of evidence impeaching Sarles’s credibility, including his\nconflicting testimony about the nature of his social interactions with the principals.\nSee Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151 (2000) (noting\nthat at summary judgment, courts “must disregard all evidence favorable to the\nmoving party that the jury is not required to believe. That is, the court should give\ncredence to the evidence favoring the nonmovant as well as that ‘evidence supporting\nthe moving party that is uncontradicted and unimpeached, at least to the extent that\nthat evidence comes from disinterested witnesses’” (citation omitted) (quoting 9A\nCharles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2529 (2d\ned.1995))). Moreover, at least two witnesses suggested that Sarles asked them to sign\nblank bank forms—or, in other words, that he opened accounts without required\ndocumentation.\n\n -18-\n\nhe never received them and he never followed up. After assessing the credibility of\nthose involved, a jury could reasonably conclude that this evidence supports a finding\nthat Sarles had knowledge of the principals’ tortious conduct. See Anderson, 477\nU.S. at 255 (“[C]redibility determinations . . . and the drawing of legitimate\ninferences from the facts are jury functions, not those of a judge . . . .”).\n\n After opening the Crown Forex LLC account, Sarles opened four more\naccounts associated with the scheme. These accounts contained a variant of the name\n“Oxford,”6 had the same address, and were opened within a three-month period.\nAccording to Sarles, Cook told him that one of these accounts, Oxford Global FX, on\nwhich Cook was the sole signatory, would not hold investor funds. Leo\nDomenichetti, a contractor hired to perform general maintenance on Cook’s\nproperties, was also a signatory on one of the Oxford Global accounts. This was so\neven though he had no substantive role in the principals’ “business.” According to\nDomenichetti, Sarles directed him to sign an account form that he had not read.\nDomenichetti also said that, when he signed it, portions of the form were covered up,\nand the other signatories’ lines were blank. Domenichetti also testified that the\n“Administrative Assistant” title that was next to his name on the form—a title\nDomenichetti characterized as “baloney”—was added after he signed it.\n\n The circumstances surrounding the opening of the Oxford accounts are not\ninsignificant.7 A jury, of course, would be entitled to give this evidence little weight,\n\n 6\n For example, Oxford Global Investments Inc., Oxford Global Partners LLC,\nand Oxford Global FX, LLC.\n 7\n In fact, David Martens, who was employed in bank security at Associated\nBank while the fraud unfolded, testified that the opening, within a short time period,\nof multiple bank accounts with similar names listing the same address might evince\nfraud. Although he characterized Sarles’s conduct as nothing but “sloppy banking,”\nthe drawing of ultimate conclusions from Martens’s testimony is a function for the\njury.\n\n -19-\n\nor to decline to draw an inference of knowledge from these facts. But at this juncture,\nwe can do neither.\n\n A reasonable jury could also consider the evidence that Sarles personally\nassisted Cook in improperly transferring millions of dollars from investor accounts\nto Cook’s account. For instance, on April 30, 2009, Sarles approved Cook’s request\nto transfer $1.7 million of investor funds from the Crown Forex LLC account (on\nwhich Cook was not a signatory) to Cook’s Oxford Global FX account (on which he\nwas the sole signatory).8 Substantial record evidence, including from Associated\nBank security employees, indicates that Sarles’s approval of that transfer violated\nbank policy and industry standards. This improper transfer went undetected until\nCook sought to withdraw $600,000 of that $1.7 million, in cash, to buy a yacht. At\nthat point, the transfer caught the attention of other bankers. Associated Bank Senior\nVice President Steven Bianchi halted the $600,000 withdrawal. He explained that\nCook could not withdraw the money because the funds came from the $1.7 million\nthat had been improperly transferred by Sarles. He explained:\n\n The [$1.7 million] should have been transferred by Crown Forex with\n an internal wire transfer instead of [the] internal bank transfer [approved\n by Sarles]. Because ownership and signers are not the same or\n overlapping, the money should be deposited into Oxford Global via\n check or wire. The accounts are not related. Therefore, the transfer\n will be reversed (money taken out of Oxford Global and returned to\n Crown Forex) and Crown Forex will be instructed to transfer via internal\n wire transfer the $600,000 in question. After this internal wire has been\n verified, I will provide approval for this order to purchase cash.\n\n(emphasis added).\n\n\n\n\n 8\n Smith initiated the request, but the record shows Cook directed her to do so.\n\n -20-\n\n Associated Bank ultimately permitted Cook to leave the bank with $600,000\nof investor funds, but the process leading up to that withdrawal is relevant to the\nanalysis. I respectfully disagree with the court’s conclusion that this evidence\nsuggests Sarles “contacted his supervisor” to ensure that “all procedures had been\nproperly followed” before Cook could withdraw the $600,000. To the contrary, when\nviewed in the light most favorable to the Receiver, this evidence suggests that Sarles\ndirectly assisted Cook—in violation of bank policy and industry standards—in\nwithdrawing investor funds for Cook’s own use. Moreover, this improper transfer\n(and withdrawal) is not an outlier. Record evidence shows Sarles approved additional\ntransfers of $1 and $2 million of investor funds from the Crown Forex LLC account\nto Cook’s own Oxford Global FX account. The jury—not judges—must evaluate and\nweigh this evidence.\n\n In determining whether there is sufficient evidence of knowledge, both the\nrelationship between Sarles and the “primary tortfeasor[s]” and Sarles’s “state of\nmind . . . come into play.” Witzman, 601 N.W.2d at 188. Repeatedly, Pettengill\nindicated that the principals created an environment where the “operation” was seen\nas a “‘game’ to get people’s money.” Pettengill “knew that things weren’t right from\nthe beginning,” even if he did not know the precise “details” and “extent” of the fraud\nuntil later. According to Pettengill, Sarles too was immersed in this environment.\nPettengill stated that he saw Sarles at the Van Dusen mansion “perhaps a dozen\ntimes,” and with Cook “around six times discussing business and drinking.”9 As to\nthese interactions, Pettengill said, “[m]any times we would just hang out in Cook’s\noffice and we . . . would just be drinking and [Cook] would spout off on, you know,\n‘Greed is good’” and quote movie lines about greed and money. The point of this\nevidence is not whether Sarles knew about the tortious conduct simply because he\nheard the principals recite movie lines. The point is whether a jury could reasonably\n\n\n 9\n Sarles himself testified that he spoke to Cook on the phone at a “minimum”\nonce a week, and often more frequently than that.\n\n -21-\n\ninfer that Sarles knew of the tortious conduct based, at least in part, on his active\nparticipation in an atmosphere where greed was openly glorified and getting people’s\nmoney was viewed as a game—a 193-million-dollar game that cost some victims their\nentire life savings. See Beckman, 787 F.3d at 474.\n\n To be sure, each individual piece of evidence described above, standing alone,\nmay not be sufficient to indicate Sarles knew of every detail of the Ponzi scheme and\nits full extent. But the case before us is for aiding and abetting the specific torts of\nbreach of fiduciary duty, conversion, false representation, and fraud. Associated\nBank, in fact, concedes that these specific torts were “committed by the operators of\na Ponzi scheme who stole investors’ money from 2006 until 2009.” When viewed as\na whole, see Reeves, 530 U.S. at 151, the evidence could lead a reasonable jury to\nconclude that Sarles knew that the principals’ conduct constituted each of the alleged\ntorts.10 A jury could conclude that Sarles knew of the principals’ breach of fiduciary\nduty because, among other things, he helped Cook withdraw hundreds of thousands\nof dollars of investor funds for use inconsistent with the funds’ intended purpose and\nhelped the principals implement an illegal scheme designed to mask a $13 million\nshortfall of investor funds. Cf. Reisdorf v. i3, LLC, 129 F. Supp. 3d 751, 767 (D.\nMinn. 2015) (Under Minnesota law, “[f]iduciary duty requires officers and directors\n‘to act in good faith, with honesty in fact, with loyalty, in the best interests of the\n[beneficiary].’”); Vacinek v. First Nat’l Bank of Pine City, 416 N.W.2d 795, 799\n(Minn. Ct. App. 1987) (explaining that fiduciary relationships are characterized by\ntwo attributes: “superiority of knowledge of one party and confidence reposed by the\nother”).\n\n\n\n 10\n Regrettably, the Receiver fails to engage in the required tort-by-tort analysis\nin its brief, even though he argues that the district court erred in failing to analyze the\nclaims individually. The fact that Associated Bank concedes the principals\ncommitted the torts, but neither party elaborates on this point, further complicates our\ntask at summary judgment.\n\n -22-\n\n A jury could also conclude that Sarles had knowledge of the tort of conversion\nbased on this same evidence, that is, that he personally assisted the principals in\ntransferring (and withdrawing) at least $600,000 of investor funds for Cook’s own\nuse. See Rudnitski v. Seely, 452 N.W.2d 664, 668 (Minn. 1990) (“Conversion is the\nexercise of dominion and control over goods inconsistent with, and in repudiation of,\nthe owner’s rights in those goods.”). Similarly, a jury could find that Sarles had\nknowledge of the tort of false representations because he knew what the principals\npromised investors, but also knew that investor funds were being misused. See\nSpecialized Tours, Inc. v. Hagen, 392 N.W.2d 520, 532 (Minn. 1986) (listing the\nelements of an affirmative misrepresentation claim in Minnesota as requiring that:\n“(1) there was a false representation by a party of a past or existing material fact\nsusceptible of knowledge; (2) made with knowledge of the falsity of the\nrepresentation . . . ; (3) with the intention to induce another to act in reliance thereon;\n(4) that the representation caused the other party to act in reliance thereon; and (5)\nthat the party suffer pecuniary damage as a result of the reliance”).\n\n Sarles’s knowledge of the fraud claim presents a closer call. The Receiver’s\ncomplaint alleges the fraud claim specifically as a “Ponzi scheme”—a type of fraud\nin which “the operator promises investors returns on their investment which the\noperator intends to pay from funds provided by new investors, rather than from\nprofits generated by the underlying business venture.” In re Armstrong, 285 F.3d\n1092, 1093 n.3 (8th Cir. 2002). In my view, however, Sarles’s willingness to help the\nprincipals open accounts to make a $2 million balance appear as a $15 million\nbalance coupled with the other evidence of banking improprieties prevents us from\nconcluding, as a matter of law, that he had no knowledge of the Ponzi scheme.\n\n As the court notes, the evidence in this case is largely circumstantial. But\nrefusing to submit to a jury circumstantial evidence of the type found here comes far\ntoo close to impermissibly requiring direct evidence of actual knowledge even where\ncircumstantial evidence in fact can and may suffice. See United States v. Hirani, 824\n\n -23-\n\nF.3d 741, 747 (8th Cir. 2016) (“In both civil and criminal cases, circumstantial\nevidence is considered just as probative as direct evidence . . . .”). Moreover, as we\nhave often explained, fact-intensive inquiries, in particular those containing a\nknowledge component, “[are] generally inappropriate for summary judgment.” Best\nBuy Stores, L.P. v. Benderson-Wainberg Assocs., L.P., 668 F.3d 1019, 1030 (8th Cir.\n2012) (reversing grant of summary judgment on affirmative defenses containing\nknowledge as an element). “[A] non-moving party survives summary judgment when\nthe facts, while thin, enable a jury to draw a reasonable inference for its claim.” Hill\nv. Sw. Energy Co., 858 F.3d 481, 487 (8th Cir. 2017) (cleaned up).\n\n II.\n\n The above-described circumstantial evidence could also lead a jury reasonably\nto conclude that Sarles substantially assisted the principals’ torts. To qualify under\nMinnesota law, “[a]ssitance must further the [tort] itself, and not merely constitute\ngeneral aid to the tortfeasor.” Zayed I, 779 F.3d at 735 (cleaned up). “‘[S]ubstantial\nassistance’ means something more than the provision of routine professional\nservices.” Witzman, 601 N.W.2d at 189. Viewing the evidence in the light most\nfavorable to the Receiver, a jury could reasonably conclude that Sarles did more than\nprovide the principals with ordinary banking services. He opened accounts—without\nthe proper documentation—to assist them in an illegal “repapering” effort after Wells\nFargo had grown suspicious of the principals’ banking activity. He helped Cook\ntransfer and withdraw large sums of investor funds for his own use and in violation\nof Associated Bank’s policies and industry standards. Cf id. (holding that the\nplaintiff failed to state a claim when “[t]he only ‘assistance’” she alleged was\n“performance of routine accounting duties—i.e., preparing financial statements,”\netc.). Assessed in tandem with the evidence of Sarles’s knowledge of the principals’\n“business model” promising risk-free and guaranteed returns, and viewed in the light\nmost favorable to the Receiver, this evidence suggests that Sarles was far more than\na mere bystander. Cf id. (“The mere presence of the particular defendant at the\n\n -24-\n\ncommission of the wrong, or his failure to object to it, is not enough to charge him\nwith responsibility.” (cleaned up)).\n\n In sum, I believe the Receiver has presented sufficient evidence to defeat\nsummary judgment. Accordingly, I respectfully dissent.\n\n ______________________________\n\n\n\n\n -25-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4357668/", "author_raw": "KELLY, Circuit Judge, dissenting"}]}	SHEPHERD	KELLY	GRASZ	1		{}	4	2	0	2	null	https://www.courtlistener.com/api/rest/v4/clusters/4580415/	Published	1	1	1	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: R.J. ZAYED, in His Capacity as Court-Appointed Receiver for the Oxford Global Partners, LLC, Universal Brokerage FX, and Other Receiver Entities, Plaintiff - Appellant v. ASSOCIATED BANK, N.A., Defendant - Appellee\nCourt: U.S. Court of Appeals for the Eighth Circuit\nDate decided: 2019-01-10\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-1250\n ___________________________\n\nR.J. Zayed, In His Capacity As Court-Appointed Receiver For The Oxford Global\n Partners, LLC, Universal Brokerage FX, and Other Receiver Entities\n\n Plaintiff - Appellant\n\n v.\n\n Associated Bank, N.A.\n\n Defendant - Appellee\n ____________\n\n Appeal from United States District Court\n for the District of Minnesota\n ____________\n\n Submitted: May 17, 2018\n Filed: January 10, 2019\n ____________\n\nBefore SHEPHERD, KELLY, and GRASZ, Circuit Judges.\n ____________\n\nGRASZ, Circuit Judge.\n\n Over a period of several years, a group of scammers based in Minnesota\nswindled investors out of more than one hundred million dollars in a prolific Ponzi\n\nscheme utilizing numerous business entities. A receiver1 was appointed to take\ncharge of what assets remained in the business entities that were used to perpetrate\nthe scheme and to recover any assets he could for the victims of the fraud. The\nReceiver sued Associated Bank, N.A., which provided banking services to some of\nthe scammers’ entities, accusing the bank of aiding and abetting the Ponzi scheme.\nAt issue in this appeal is whether the district court2 correctly concluded there was not\nsufficient evidence to reasonably infer the bank knew about and assisted the\nscammers’ tortious conduct. Because a conclusion that the bank aided and abetted\nthe Ponzi scheme could only be reached through considerable conjecture and\nspeculation, we affirm the district court.\n\n I. Background\n\n From 2006 to 2009, five individuals — Trevor Cook, Christopher Pettengill,\nJason Beckman, Gerald Durand, and Patrick Kiley (“the scammers”) — perpetrated\na Ponzi scheme that took in over $193 million from investors and returned only $49\nmillion (all from new investors’ money). See United States v. Beckman, 787 F.3d\n466, 474 (8th Cir. 2015) (discussing the scheme in an appeal from some of the\nscammers’ criminal convictions). The scammers used a number of business entities\nthat went by several variations of names that included “UBS,” “Universal Brokerage,”\n“Oxford,” “Crown Forex,” and “Basel Group.” See id. at 475, 488; Zayed v.\nAssociated Bank, N.A. (“Zayed I”), 779 F.3d 727, 730 (8th Cir. 2015). They told\npotential investors that their investments would be held in segregated accounts,\n\n 1\n After this case was filed, the receiver, R.J. Zayed, was granted leave to recuse\nhimself from the case and withdrew; three other attorneys were appointed to act in his\ncapacity as receiver in this litigation. As in our prior opinion in this case, “the\nReceiver” is used to refer to the office of receiver and not any particular person.\nZayed v. Associated Bank, N.A. (“Zayed I”), 779 F.3d 727, 729 n.1 (8th Cir. 2015).\n 2\n The Honorable David S. Doty, United States District Judge for the District of\nMinnesota.\n\n -2-\n\ncompletely liquid, and invested in a currency exchange program through a Swiss\ncompany, Crown Forex, S.A. Zayed I, 779 F.3d at 730. Eventually, the scammers\nwere caught and ultimately sentenced to lengthy prison terms for various crimes\nincluding wire and mail fraud and money laundering. See Beckman, 787 F.3d at 477.\n\n When the fraud was uncovered in 2009, the U.S. Securities and Exchange\nCommission and the U.S. Commodity Futures Trading Commission filed civil actions\nagainst the scammers and their entities. In those civil actions, the district court\nappointed a receiver, granting him the power to take control over the scammers’\nentities and assets and to bring legal actions in order to discharge his duties.\n\n In 2013, the Receiver filed suit against Associated Bank for allegedly aiding\nand abetting the torts of fraud, breach of fiduciary duty, conversion, and negligent\nmisrepresentation. The allegations underlying these claims centered on one former\nAssociated Bank employee, Lien Sarles. Sarles helped open accounts for the\nscammers and then serviced those accounts at the bank. The Receiver alleged Sarles\nknew about and assisted in the scheme.\n\n Later that year, the district court granted Associated Bank’s motion to dismiss,\nconcluding that the Receiver had not sufficiently pled a plausible claim that the bank\naided and abetted the scammers’ tortious conduct. On appeal, this Court reversed the\ndistrict court’s dismissal, concluding the Receiver’s pleadings were sufficient to\nsurvive a motion to dismiss. See Zayed I, 779 F.3d 737.\n\n After remand and discovery, Associated Bank moved for summary judgment.\nThe district court granted the motion, concluding there was insufficient evidence that\nAssociated Bank knew of and provided substantial assistance to the scammers’\ntortious conduct. The Receiver filed a timely appeal.\n\n\n\n\n -3-\n\n II. Discussion\n\n The Receiver argues on appeal that the district court erred in granting summary\njudgment to Associated Bank. Summary judgment is appropriate where a party\nshows “there is no genuine dispute as to any material fact” and the party “is entitled\nto judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute of fact is “genuine”\nif a factfinder could reasonably determine the issue in the non-moving party’s favor.\nSee Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factfinder’s\ndecision is reasonable if it is based on “sufficient probative evidence” and not on\n“mere speculation, conjecture, or fantasy.” See Williams v. Mannis, 889 F.3d 926,\n931 (8th Cir. 2018) (quoting Barber v. C1 Truck Driver Training, LLC, 656 F.3d 782,\n801 (8th Cir. 2011). “We review an order granting summary judgment de novo.”\nOppedahl v. Mobile Drill Int'l, Inc., 899 F.3d 505, 509 (8th Cir. 2018).\n\n The Receiver’s claims against Associated Bank are for aiding and abetting the\ntorts of conversion, breach of fiduciary duty, fraud, and negligent misrepresentation\n— all under Minnesota law. Aiding and abetting is not an independent tort, but a\ntheory of liability under which a party may be held jointly and severally liable for the\nunderlying tort. See Leiendecker v. Asian Women United of Minnesota, 848 N.W.2d\n224, 228 n.2 (Minn. 2014); Witzman v. Lehrman, Lehrman & Flom, 601 N.W.2d 179,\n185–86 (Minn. 1999).\n\n Under Minnesota law, a plaintiff must show three things to hold a defendant\nliable for aiding and abetting a tort: first “the primary tortfeasor must commit a tort\nthat causes an injury to the plaintiff,” second “the defendant must know that the\nprimary tortfeasor's conduct constitutes a breach of duty,” and third “the defendant\nmust substantially assist or encourage the primary tortfeasor in the achievement of the\nbreach.” Zayed I, 779 F.3d at 733 (quoting Witzman, 601 N.W.2d at 187).\n\n\n\n\n -4-\n\n The parties do not dispute the first element, that the scammers committed torts.\nThe question in this case is whether Associated Bank knew that the scammers were\nengaged in the tortious Ponzi scheme, and substantially assisted the scammers in\nachieving that scheme. See id. at 733.\n\n A. Knowledge of the Ponzi Scheme\n\n 1. Actual Knowledge\n\n Under Minnesota law, the scienter (knowledge requirement) for aiding and\nabetting is “actual knowledge.” Varga v. U.S. Bank Nat. Ass’n, 952 F. Supp. 2d 850,\n857 (D. Minn. 2013) aff’d, 764 F.3d 833 (8th Cir. 2014) (applying Minnesota law).\nThe evidence necessary to sufficiently show actual knowledge “depends in part on\nthe particular facts and circumstances of each case.” Witzman, 601 N.W.2d at 188.\n“[W]here there is a minimal showing of substantial assistance, a greater showing of\nscienter is required.” Id. (quoting Camp v. Dema, 948 F.2d 455, 459 (8th Cir.1991)).\nCourts consider “[f]actors such as the relationship between the defendant and the\nprimary tortfeasor, the nature of the primary tortfeasor’s activity, the nature of the\nassistance provided by the defendant, and the defendant’s state of mind.” Id.\n\n “While knowledge may be shown by circumstantial evidence, ‘courts stress that\nthe requirement is actual knowledge and the circumstantial evidence must\ndemonstrate that the aider-and-abettor actually knew of the underlying wrongs\ncommitted.’” Varga, 952 F. Supp. 2d at 857 (quoting Wiand v. Wells Fargo Bank,\nN.A., 938 F. Supp. 2d 1238, 1244 (M.D. Fla. 2013)). A plaintiff must show more than\n“awareness of the conduct in question . . ., that it raised ‘red flags,’ . . . or even that\nit amounted to gross negligence,” but must show that the defendant “was aware of the\nwrongfulness of the challenged conduct.” Id. at 858 (citing Camp, 948 F.2d at 459,\n463; Wiand, 938 F. Supp. 2d at 1244; Witzman, 601 N.W.2d at 188).\n\n\n\n -5-\n\n The summary judgment record contains no direct evidence Sarles or anyone at\nAssociated Bank knew of the Ponzi scheme. In fact, all of the direct evidence was\nto the contrary. The Receiver’s own expert witness agreed that “[there was] nobody\nat the bank who put this information together and determined there was a Ponzi\nscheme going on.” Associated Bank’s expert stated that he agreed with the\nReceiver’s expert that “there is no one at Associated Bank who actually concluded\n. . . that the [scammers’ entities] were engaged in a Ponzi scheme.” David Martens,\nAssociated Bank’s regional security officer, testified based on his extensive law\nenforcement experience that he believed Sarles’s actions were attributable to “sloppy\nbanking” rather than anything “nefarious.” Two of Sarles’s coworkers testified that\nthey did not observe anything that would indicate to them that Sarles knew about the\nPonzi scheme. Ryan Rasske, Associated Bank’s Director of Risk and Financial\nCrimes, testified that he had not uncovered any evidence that Sarles or anyone at\nAssociated Bank knew of the Ponzi scheme. Furthermore, an employee of one of the\nscammers testified that she had no evidence Sarles knew of the Ponzi scheme. One\nof the scammers, Pettengill, said that Sarles was not part of the fraud. Another\nscammer, Cook, testified that Sarles “knew nothing about what was going on.”\n\n Given this absence of direct evidence, the Receiver attempted to amass\ncircumstantial evidence that he claimed showed that Sarles had actual knowledge of\nthe Ponzi scheme. But none of the circumstantial evidence compiled by the Receiver\npoints to anything more than “sloppy banking” by Sarles or “red flags” that, with the\nbenefit of hindsight, should have prompted further investigation or inquiry. Even on\nthis twenty-seven volume, six-thousand page record, the leap cannot be made to infer\nthat Sarles or anyone at Associated Bank actually knew about the Ponzi scheme\nwithout resorting to speculation and conjecture. See Williams, 889 F.3d at 931\n(discussing the summary judgment standard).\n\n Sarles first met Kiley, one of the scammers, around December 2007 when\nSarles pitched him on switching his business’s banking services to Associated Bank.\n\n -6-\n\nSarles, who held the position of assistant vice president at Associated Bank, had the\nprimary job duties of “marketing, opening new commercial accounts, and providing\naccount management and services to new and existing commercial customers.”\nSarles first opened an account for Kiley for the entity Universal Brokerage FX\nManagement, LLC in January 2008. Between then and June 2009, Sarles opened a\ntotal of eight accounts at Associated Bank for Kiley and fellow scammer Cook for\ndifferent entities.\n\n In June 2008, Sarles opened an account for “Crown Forex LLC” for Cook. The\nReceiver argues that the fact this account was opened in the name of a domestic entity\nshows that Sarles knew about the Ponzi scheme and was attempting to help the\nscammers avoid detection. According to Cook, he intended to open an account for\nCrown Forex, S.A., the Swiss investing entity, but Sarles suggested that he open it\nunder the name of a domestic limited liability company. Cook explained that he did\nnot think Sarles thought this was improper or fraudulent:\n\n [Sarles] certainly understood it was . . . a different entity, but . . . I don’t\n think that he thought there was a fraud going on. . . . I think it’s common\n that businesses have all kinds of holding companies and sub entities and\n different entities. . . . [W]e told him that . . . the Crown Forex, LLC\n account was part of Crown Forex, and it was on their books, so I’m not\n so sure I’d say [Sarles] knew something, you know, fishy was going on.\n\nSarles himself testified that he believed that in order for foreign business entities to\nopen a bank account, “they have to have a domestic entity.” He was merely following\npolicy for foreign-owned corporations, and nothing in the record suggests Sarles\nthought that it was in any way illegitimate or fraudulent to open the Crown Forex\naccount under the name of a domestic entity.\n\n The Crown Forex LLC account was opened as a “checking/money market”\naccount. The Receiver argues that opening this type of account was intended by\n\n\n -7-\n\nSarles to help the scammers avoid detection. He claims that Sarles should have\nselected an account type that indicated fiduciary status or that it held investor funds.\nBut the Receiver has not pointed to anything in the record that shows that Associated\nBank had such specific types of accounts, much less policies requiring their use. In\nfact, the portfolio specialist who actually prepared the account opening form selected3\nthe “checking/money market” option from a list of account types that also included\n“savings, time deposit, [and] loan account.” The record does not support the claim\nthat the Crown Forex account was nefariously opened as a checking account by Sarles\nor anyone else at Associated Bank to avoid detection and further the Ponzi scheme.\n\n The Receiver also places great emphasis on the fact that Sarles opened the\nCrown Forex LLC account for Cook without receiving proof that the company was\nregistered with the Minnesota Secretary of State. Sarles received all the necessary\ndocumentation, except for the proof of registration, but did receive an application for\narticles of incorporation which he was told was being submitted to the state. Sarles\ntestified that he:\n\n receiv[ed] the application that was completed that was en route to be\n filed with the Secretary of State, therefore, the rapport and trust that I\n believed I had, I was providing above and beyond customer service to\n execute the client’s request by opening up the account with the\n assumption I’d be receiving the state certificate within that two week\n period or so it takes to generate from the Secretary of State.\n\nThe account opening form, under the section for “documentation provided,” listed\n“[r]eport from a state registration information website,” although the specialist who\nopened the account was not sure if she typed that response or selected it from a drop-\n\n\n 3\n There is some evidence that Sarles directed (or that a banker in his position\nwould typically direct) the selection of the account type. Assuming Sarles was\nresponsible for the choice of account type, this fact still does not support the\nReceiver’s allegation of actual knowledge.\n\n -8-\n\ndown menu as “the one option that closest describe[d] the one item [of\ndocumentation] that we ha[d].” Sarles did not follow up on the missing paperwork.\nHe said that after the Ponzi scheme was uncovered, he learned that Crown Forex LLC\nwas never registered with the state. Of the eight accounts opened by the scammers\nat Associated Bank, only the Crown Forex LLC account and an account for Basel\nGroup LLC were opened without certifying that the entities were registered with the\nstate. Concluding that Sarles opened the Crown Forex and Basel Group accounts\nbecause he knew that Cook and others were engaged in a Ponzi scheme, rather than\nsimply out of an effort to please an important client, would require speculation and\nis not a reasonable inference.\n\n The Receiver also emphasizes that Sarles socialized with the scammers. The\nprecise extent of that socialization is disputed, but none of the evidence supports an\ninference that Sarles learned about the Ponzi scheme through it. Interestingly, the\nReceiver also resorts to arguing that Sarles had knowledge of the Ponzi scheme\nbecause the scammers would sometimes quote lines about greed from movies like\nWall Street and Boiler Room. This argument borders on absurdity and illustrates the\nlack of meaningful evidence that Sarles had knowledge of the Ponzi scheme. Quoting\nlines from movies about greed and scheming does not reveal one to be running a\nPonzi scheme any more than quoting lines from The Godfather reveals one to be a\nmobster.\n\n The receiver also claimed that Sarles duped a contractor who worked for the\nscammers into signing a blank account opening form. This assertion is unsupported\nby the record. The contractor never claimed the form was blank or that he was\nmisled. The form he signed made him a signatory so he could cash checks and get\na company credit card, as he had with their Wells Fargo account, in order to purchase\nsupplies for the maintenance of the mansion in which the scammers conducted their\nbusiness.\n\n\n\n -9-\n\n Another basis for the Receiver’s claim that Sarles knew about the Ponzi scheme\nis the allegations by one of the scammers that Sarles was present at certain meetings.\nPettengill claimed that around April 2008 he saw Sarles in attendance at an\ninvestment seminar at the Van Dusen mansion, although Sarles testified that he never\nattended any such seminars. The Receiver claims that a sophisticated banker like\nSarles must have known that the investment pitch was a scam. But Pettengill\nadmitted that Sarles did not say or do anything that would lead him to believe that\nSarles did not believe the investment pitch or knew it was fraudulent.\n\n Pettengill also claimed that Sarles attended a meeting in April or May 2008 at\nwhich the scammers discussed segregating client accounts. A closer look at this\nclaim shows that it does not support an inference that Sarles knew the scammers were\nengaged in fraud. Pettengill himself said that he did not know client funds were\nbeing used to make up the shortfall in money until months after this meeting. Prior\nto the meeting, the scammers had been advised by their attorneys to “repaper” their\nclient accounts by segregating their single, pooled bank account into separate client\naccounts. According to Pettengill, it was discussed that Associated Bank would\nfacilitate the wire transfers from the Swiss Crown Forex account, back to the U.S.\nCrown Forex account, then back again into segregated client accounts in Switzerland.\nBut Pettengill admitted in his deposition that the manner in which the transfers were\nto be done — by performing multiple transfers in order to cover up the shortfall of\nmoney in the Swiss account — was never disclosed to Sarles. Pettengill claimed that\nit was “implied” that they were covering up a shortfall of money, although he\nprovides no support for this assertion. Even assuming Sarles knew there was a\nshortfall in the Swiss Crown Forex entity, and that the scammers wanted to avoid\ndisclosing that, it does not follow that Sarles knew their enterprise was a Ponzi\nscheme or that they were engaged in tortious conduct. If true, this should have been\na red flag, but it does not show actual knowledge. Moreover, Pettengill never\nclaimed the scammers discussed in Sarles’s presence using new clients’ money to\nmake up for the shortfall in the Swiss Crown Forex account. Pettengill’s testimony\n\n -10-\n\nis insufficient to support an inference that Sarles knew the scammers were engaged\nin tortious conduct.\n\n The Receiver also claimed Sarles improperly approved transfers of money\nbetween bank accounts for the scammers. Specifically, he claims that Sarles\napproved transfers at Cook’s behest from the Crown Forex accounts, on which Kiley\nand Smith — but not Cook — were signatories, into accounts on which Cook was\na signatory. Only three of the transfer forms cited by the Receiver, however, actually\nreference Cook. Assuming that Sarles authorized these transfers for Cook, there is\nstill no evidence that the account signatories did not approve of these transfers. Smith\nwould at times transfer money by forwarding emailed directions from Cook to the\nbank. Even if Sarles had transferred money at Cook’s behest on an account on which\nSmith was the signatory, this would only show that he was being sloppy with\nformalities when he knew that Cook and Smith (and the other scammers) were\nworking together — it would not show that Sarles knew there was a Ponzi scheme\nafoot. Additionally, in June 2009, Cook requested a $600,000 withdrawal from the\nOxford Global account, on which he was a signatory. The withdrawal was approved\nonly after Sarles contacted his supervisor and the bank ensured that all procedures\nhad been properly followed. Nothing about these transfers or the withdrawal suggest\nthat Sarles knew about the Ponzi scheme.\n\n The Receiver argues that in 2009, money continued to flow in and out of the\nCrown Forex account, even “after Sarles had learned that Swiss authorities had shut\ndown Crown Forex, S.A., rendering the sole investment vehicle of the scheme\nobviously impossible.” But the record contains no evidence to support the claim that\nSarles knew the Swiss entity had been shut down. In fact, the Receiver’s own expert\nreport states that if Associated Bank had the proper due diligence procedures, it\nwould have learned of this information, but does not claim that anyone at the bank\nactually did learn of it.\n\n\n\n -11-\n\n Finally, the Receiver argues in his brief that just before Sarles was fired, “the\nBank itself began a drumbeat of instructions to Sarles to delete emails – prohibiting\nhim from using the email account unless he did so,” and that “[n]othing indicates that\nSarles failed to destroy these documents, as the Bank instructed him to do.”\nExamination of these emails shows they are not the nefarious messages the Receiver\nmakes them out to be. Rather, they are standard notifications that the storage on\nSarles’s email inbox was full, sent by the bank’s Microsoft Exchange Server.\nMoreover, prior to these notifications and Sarles’s termination, his email inbox was\npreserved and reviewed by a bank security officer, which revealed “[n]othing out of\nthe ordinary.” The characterization of these emails by the Receiver to this Court is,\nat best, misleading. Sarles’s full inbox does not show him to be aware of the Ponzi\nscheme or that the bank was attempting to cover anything up.\n\n In sum, the evidence cited by the Receiver simply does not support a\nreasonable inference that Sarles or anyone at Associated Bank had actual knowledge\nof the scammers’ torts. Nor does looking to all the circumstantial evidence\ncollectively allow for such a conclusion without resorting to speculation and\nconjecture. After all, “in law as in mathematics zero plus zero equals zero.”\nHenderson v. Kennedy, 253 F.3d 12, 19 (D.C. Cir. 2001).\n\n 2. Constructive Knowledge\n\n The Receiver alternatively argues that he need not show that Associated Bank\nhad actual knowledge of the scammers’ torts to impose aiding and abetting liability,\nbut that “constructive knowledge” is sufficient. We disagree, but in any event, the\nsummary judgment record here is insufficient to support a finding of constructive\nknowledge.\n\n The Receiver rests his constructive knowledge argument on a single reference\nin the Minnesota Supreme Court’s opinion in Witzman, in which the Court stated\n\n -12-\n\nwhile discussing aiding and abetting liability that “some courts” have found that a\ndefendant may be deemed to have constructive knowledge of a tort “where the\nprimary tortfeasor’s conduct is clearly tortious or illegal,” where “[the] defendant\n[has] a long-term or in-depth relationship with that tortfeasor,” and “where the\nconduct is [] a facial breach of duty.” 601 N.W.2d at 188. After making this\nobservation, however, the Court in Witzman applied an actual knowledge test. Id.\nWe agree with the district court in Varga, 952 F. Supp. 2d at 857, that under\nMinnesota law, “[c]onstructive knowledge will not suffice.”\n\n Even assuming that constructive knowledge could be sufficient, it cannot be\nimputed to Sarles and Associated Bank on this record. The actions of the scammers\nknown to Associated Bank were not “clearly tortious or illegal.” Rather, what was\nlater revealed to be a fraud was a sophisticated Ponzi scheme that went undetected for\nyears. Nor did Sarles or Associated Bank have “a long-term or in-depth relationship”\nwith the scammers. The professional relationship between the scammers and Sarles\nand the bank, even with Sarles’s socializing, does not meet this standard. Nor was\nthe Ponzi scheme “a facial breach of duty.” On its face, it appeared to be a legitimate\ninvesting business. Thus, a finding of constructive knowledge could not be supported\nby this record, even if constructive knowledge was sufficient under Minnesota law\nto impose aiding and abetting liability.\n\n B. Substantial Assistance in the Scheme\n\n In addition to showing actual knowledge, a plaintiff must show that a defendant\nprovided substantial assistance to the primary tortfeasor in order to impose aiding and\nabetting liability. Witzman, 601 N.W.2d at 188–89. This element is evaluated in\ntandem with the knowledge requirement. Id. Thus, the weaker the evidence of\nknowledge is, the greater the showing of substantial assistance must be. See id.\n“[C]onduct that inadvertently advances the [underlying tort] does not amount to\nsubstantial assistance.” Varga, 764 F.3d at (quoting Camp, 948 F.2d at 460). In\n\n -13-\n\naddition, “‘[s]ome element of blameworthiness’ must be present in the defendant’s\nassistance.” Id.\n\n The Minnesota Supreme Court has said that in the context of professionals,\n“‘substantial assistance’ means something more than the provision of routine\nprofessional services.” Witzman, 601 N.W.2d at 189. The Court in Witzman said that\nallegations against the defendant, an accounting firm, involved nothing more than the\n“performance of routine accounting duties,” and went on to say: “If we were to\nrecognize that such routine services constitute substantial assistance, then it would\nbe the rare accountant indeed who would not be subject to automatic liability merely\nbecause his client happened to be a tortfeasor.” Id. The same could easily be said of\nbanks.\n\n While the Receiver’s claim fails because of the lack of evidence of actual\nknowledge, we also conclude that no reasonable factfinder could conclude that\nAssociated Bank provided substantial assistance to the scammers in the commission\nof their torts. The evidence that the Receiver claims shows substantial assistance is\nlargely the same evidence it claims shows knowledge. The substantial assistance\nelement is found wanting for many of the same reasons as the knowledge element.\nThe record shows nothing beyond the provision of routine banking services or, at\nworst, sloppy banking. The bank provided nothing beyond its standard professional\nservices to assist the scammers in perpetrating their Ponzi scheme. No reasonable\nfactfinder could conclude that Associated Bank provided substantial assistance to the\nscammers’ tortious conduct.\n\n\n\n\n -14-\n\n III. Conclusion\n\n To show a genuine dispute of material fact, a party must provide more than\nconjecture and speculation. The Receiver has not done so. We affirm.\n[END_CASE]", "role": "user" } ]
4,580,416	In RE: MIRAPEX PRODUCTS LIABILITY LITIGATION Marc Mancini, Plaintiff - Appellant v. Boehringer Ingelheim Pharmaceuticals, Inc., Et Al., Defendants - Appellees	Mancini v. Boehringer Ingelheim Pharm., Inc. (In Re Mirapex Prods. Liab. Litig.)	2019-01-10	17-2204	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Smith, Loken, Gruender", "parties": "", "opinions": [{"author": "LOKEN, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-2204\n ___________________________\n\n In re: Mirapex Products Liability Litigation\n\n ------------------------------\n\n Marc Mancini\n\n lllllllllllllllllllllPlaintiff - Appellant\n\n v.\n\n Boehringer Ingelheim Pharmaceuticals, Inc., et al.\n\n lllllllllllllllllllllDefendants - Appellees\n ____________\n\n Appeal from United States District Court\n for the District of Minnesota - Minneapolis\n ____________\n\n Submitted: October 16, 2018\n Filed: January 10, 2019\n ____________\n\nBefore SMITH, Chief Judge, LOKEN and GRUENDER, Circuit Judges.\n ____________\n\nLOKEN, Circuit Judge.\n\n Mirapex is a dopamine agonist that is FDA-approved for treating adults with\nParkinson’s disease and movement disorders. On December 30, 2010, Marc Mancini\n\ffiled this action against the defendant pharmaceutical companies, alleging they are\nliable for substantial gambling and other financial losses that resulted from obsessive\ncompulsive behavior, a side effect of taking Mirapex. The action was filed in the\nDistrict of Minnesota as part of the multi-district Mirapex Products Liability\nLitigation. Mancini appeals the district court’s1 grant of summary judgment\ndismissing all claims as barred by the applicable California statute of limitations. He\nargues the district court erred in not tolling the statute of limitations because he was\n“insane” and in rejecting his “continuing violations” theory, issues we review de\nnovo, and abused its discretion in denying his motion to stay defendants’ motion for\nsummary judgment pending discovery. We affirm.\n\n I. Background.\n\n Mancini is a resident of California and a successful educator and travel\nindustry speaker and consultant. In June 2004, doctors noted symptoms consistent\nwith mild idiopathic Parkinson’s disease. In January 2006, Dr. Mark Lew, Mancini’s\ntreating neurologist, prescribed Mirapex to treat worsening symptoms.\n\n On January 3, 2008, Mancini reported to Dr. Lew that he experienced increased\ngambling and other compulsive behaviors after taking Mirapex. Dr. Lew’s notes\nstated that Mancini reported “gambling and winning but not excessively.” Dr. Lew\ninformed Mancini of a possible association between Mirapex and compulsive\nbehaviors such as gambling. On April 23, 2008, Mancini again reported gambling\nand other compulsive behaviors. Dr. Lew’s notes from this visit stated that Mancini\n“has increasing stress at work” and “has become a bit more compulsive.” “He tells\nme that this is controlled, and he does not have any significant problems,” Dr. Lew\n\n\n 1\n The Honorable Michael J. Davis, United States District Judge for the District\nof Minnesota, adopting the report and recommendations of the Honorable Franklin\nL. Noel, United States Magistrate Judge for the District of Minnesota.\n\n -2-\n\fwrote, “but with the stress, he has noted the compulsions to be a bit more intense.\nOn occasion he . . . described it as ‘driving a car without brakes.’” Dr. Lew told\nMancini he had “substantial and significant concerns” about Mancini’s gambling and\nimpulsive behavior. “We talked about the potential of simply cutting back on his\nMirapex . . . . Currently he is quite resistant to this. He will return to see me in 3\nmonths’ time.”\n\n Mancini continued to take Mirapex until mid-July 2010, when his family\nlearned of substantial debts resulting from gambling. Three days after stopping\nMirapex, Mancini saw Dr. Lew, who noted worsening tremors but advised that\nMancini “needs to stay off his Mirapex” and turn to other “therapeutic options.” Dr.\nLew’s notes stated that “every visit I have had since [Mancini] has been on Mirapex\nfor better than 5 years, we discuss[ed] the potential for compulsive behaviors, and he\nflat out denied any significant problem.”\n\n II. Discussion.\n\n In reviewing whether Mancini’s claims are time-barred, important issues are\nnot disputed. The parties agree that California law governs the statute of limitations\nissue, and that California’s two year statute of limitations for personal injury claims\nresulting from the ingestion of pharmaceutical drugs applies. See Cal. Code Civ. P.\n§§ 335.1, 340.8(a). The district court found, and Mancini does not dispute on appeal,\nthat his claims initially accrued no later than April 23, 2008, because he suspected or\nshould have suspected that he had been wronged by defendants as a result of his visits\nto Dr. Lew in January and April 2008. Thus, the claims filed in December 2010\nappear to be time-barred. But Mancini argues the district court erred in granting\nsummary judgment because the statute of limitations was tolled until July 2010, and\nbecause continuing violations are not time-barrred.\n\n\n\n\n -3-\n\f A. The Tolling Issue. As relevant here, section 352(a) of the California Code\nof Civil Procedure provides that, “[i]f a person entitled to bring an action . . . is, at the\ntime the cause of action accrued . . . insane, the time of the disability is not part of the\ntime limited for the commencement of the action.”2 Consistent with the statute’s\nplain language, it applies even if the plaintiff’s insanity is caused by the wrongful act\nof the defendant. See Feeley v. S. Pac. Transp. Co., 285 Cal. Rptr. 666, 667 (Cal.\nApp. 1991). Thus, if Mancini was “insane” within the meaning of § 352(a) when his\nclaim accrued in early 2008, the two-year statute of limitations would be tolled,\npresumably until he stopped taking Mirapex in July 2010. Mancini argues the district\ncourt erred in granting defendants summary judgment on this issue.\n\n The statute, first enacted in 1872, does not define the word “insane.” In an\nearly case, the Supreme Court of California affirmed a jury verdict that the plaintiff\nwas insane when the cause of action accrued:\n\n It is true that the complaint and findings . . . do not use the words\n “unsound” or “insane,” but the finding that he was incapable of caring\n for his property or transacting business or understanding the nature or\n effects of his acts was equivalent to a finding in express terms that the\n deceased was insane within the meaning of the statute of limitations.\n\nPearl v. Pearl, 177 P. 845, 846 (Cal. 1918). Many years later, in the leading case of\nHsu v. Mt. Zion Hospital, 66 Cal. Rptr. 659, 664-67 (Cal. App. 1968), the California\nCourt of Appeal affirmed a jury verdict that plaintiff’s claims were time-barred\nbecause she was not “insane” when the claims accrued, even though she was\n\n\n 2\n In 2014, the California Legislature amended § 352(a) to replace the term\n“insane” with the phrase “lacking the legal capacity to make decisions.” 2014 Cal.\nStat. ch. 144, § 4. Courts continue to rely on pre-2014 case law in interpreting the\namended statute. See, e.g., Lang v. Sacramento Sheriff Dep’t, No. 2:14-cv-0777,\n2017 WL 1093838, at 2 (E.D. Cal. Mar. 23, 2017).\n\n -4-\n\fcommitted to a state hospital for the mentally disturbed shortly after the incident. The\njury was instructed that, “to find that plaintiff was insane, you must find that she was\nincapable of caring for her property, or transacting business or understanding the\nnature or effects of her acts.” Id. at 666. The Court of Appeal ruled that this\ninstruction “is taken directly from Pearl v. Pearl . . . and is a definition of insanity\nrecognized by [other Court of Appeal] decisions.” Id. The Court further explained:\n\n The cases cited above, such as Pearl . . . do not purport to hold that this\n language is the sole definition of insanity or that the three conditions\n there set forth are the exclusive tests of mental incompetence for\n purposes of tolling the statute of limitations. As we understand these\n cases, the basic question to be resolved by the jury is whether the\n allegedly insane plaintiff is sufficiently aware of the nature or effects of\n his acts to be able to comprehend such business transactions as the\n hiring of an attorney and the instigation of a legal action.\n\nId. (emphasis added). The Court concluded that the claim was time-barred because\nthe jury reasonably found that the statute of limitations began to run when plaintiff\n“was released from the hospital, managed a sixteen-unit apartment building, and took\ncare of her two minor children during March through May 1959.” Id.\n\n In this case, undisputed evidence established that, when his cause of action\naccrued in early 2008, Mancini was a full-time college professor, serving as the chair\nof his department. He earned $57,800 from speaking engagements in 2008, $7,600\nbefore April. He owned and operated two rental properties. He had never been\ndiagnosed with or treated for mental illness or psychological disorder. Mancini\nreported his gambling and other compulsive behaviors to Dr. Lew in January and\nApril 2008. Dr. Lew advised that this behavior may be a side effect of taking\nMirapex and suggested Mancini consider “cutting back,” a suggestion he “resisted”\nfor more than two years. At no point did Dr. Lew question Mancini’s competence to\n\n\n\n -5-\n\fcare for himself or manage his affairs, nor is there evidence that anyone questioned\nhis legal competence.\n\n Mancini relies on two documents to support his claim of insanity. First, when\nMancini visited Dr. Lew two weeks after he stopped taking Mirapex and over two\nyears after his cause of action accrued. Dr. Lew’s visit notes reported:\n\n [Mancini] is dramatically insightful into the problems that have evolved\n over the last several years. He feels that he was somewhat disconnected\n from the potential effects of his actions while he was taking Mirapex.\n At that time . . . he covered his activities and did not confide in his\n significant other, and basically lied to me each time I asked him about\n how he was doing. This was all related to his lack of insight caused by\n behavioral changes from his Mirapex . . . . He appears today to be\n dramatically improved with regard to his insight and understanding of\n his compulsions and behavioral change. He appears to be much more\n firmly based in reality today.\n\nSecond, Mancini submitted a December 2012 affidavit averring that, while taking\nMirapex, he was “not firmly based in reality, lacked insight into [his] actions, was\ndisconnected from reality, was incapable of transacting business in a competent\nmanner and generally could not understand or appreciate the nature, effects or\nconsequences of [his] acts.” The affidavit listed ways his gambling and “unreliable\nbehavior” had injured client relations, hastened his retirement as a college professor,\n“tarnished my reputation as a speaker,” and caused him to make a poor investment in\nJune 2007 without his customary “exhaustive research and due diligence.”\n\n The district court concluded that the July 2010 opinion of Dr. Lew, who was\na treating neurologist, not a psychiatrist, and the assertions in Mancini’s affidavit\nfailed to meet his burden of showing that he was insane at the time his cause of action\naccrued. “The court concludes that no reasonable jury could find that Mancini was\nincapable of caring for his property, transacting business, or understanding the nature\n\n -6-\n\for effects of his acts in January or April 2008.” After careful review of the summary\njudgment record, we agree. Mancini must provide more than a scintilla of evidence\nto carry his burden. Nuacke v. City of Park Hills, 284 F.3d 923, 927 (8th Cir. 2002).\nThe undisputed evidence of his business and financial success well into 2008, his\ncontemporaneous recognition of increasingly compulsive behaviors, and his\nunderstanding from Dr. Lew that taking Mirapex may be their cause, establish that\nhe was not insane when the cause of action accrued because he was “sufficiently\naware of the nature or effects of his acts to be able to comprehend such business\ntransactions as the hiring of an attorney and the instigation of a legal action.” Hsu,\n66 Cal. Rptr. at 666; see also Gazal v. Boehringer Ingelheim Pharm., Inc., 647 F.3d\n833, 840 (8th Cir. 2011) (concluding that a similar tolling provision in the Texas\nCivil Practice and Remedies Code did not apply because plaintiff managed a\nprofitable company and sought treatment for the side effects of Mirapex, and no one\nquestioned his competence to care for himself); Sommer v. UNUM Life Ins. Co. of\nAm., 173 F.3d 861 (table), 1999 WL 173570 at 1 (9th Cir. Mar. 24, 1999)\n(plaintiff’s “own actions, continued employment, and substantial income indicate that\nhe was not ‘insane’”).\n\n B. The Continuing Violations Issue. Mancini next argues that each ingestion\nof Mirapex gives rise to a separate and distinct claim. Therefore, even if the statute\nof limitations initially accrued in early 2008 and was not tolled by insanity, damages\nfor injuries suffered due to dosages of Mirapex taken within two years of December\n30, 2010, are not barred by the statute of limitations. In effect, he argues that taking\neach dose of Mirapex gave rise to nearly 5,000 distinct and separate claims against\ndefendants from January 2006 to July 2010. We agree with the district court that this\ncounter-intuitive argument is without merit.\n\n “The longstanding rule in California is that a single tort can be the foundation\nfor but one claim for damages.” Grisham v. Phillip Morris U.S.A., Inc., 151 P.3d\n1151, 1161 (Cal. 2007) (cleaned up). However, the Supreme Court of California, like\n\n -7-\n\fother jurisdictions, has adopted what it calls a “continuing accrual” principle that it\napplies to breaches of continuing or recurring obligations:\n\n When an obligation or liability arises on a recurring basis, a cause of\n action accrues each time a wrongful act occurs, triggering a new\n limitations period. Because each new breach of such an obligation\n provides all the elements of a claim -- wrongdoing, harm, and causation\n -- each may be treated as an independently actionable wrong with its\n own time limit for recovery.\n\nAryeh v. Canon Bus. Sols., Inc., 292 P.3d 871, 880 (Cal. 2013) (citations omitted).\nWe have applied the same principle under federal law, calling it a “continuing\nviolations” doctrine and noting that “[t]he critical question is whether a present\nviolation exists.” Ashley v. Boyle’s Famous Corned Beef Co., 66 F.3d 164, 168 (8th\nCir. 1995) (en banc) (emphasis in original), quoting United Air Lines, Inc. v. Evans,\n431 U.S. 553, 558 (1977).\n\n Though Mancini invoked this principle in arguing to the district court and on\nappeal, he failed to identify what present, ongoing violation existed after his cause\nof action accrued. His claims are based on the theory that defendants’ failure to\nadequately warn him of the behavioral side effects of taking Mirapex led to\ncompulsive gambling and financial ruin. Mirapex was FDA-approved for treating\nParkinson’s disease, and was prescribed by Mancini’s treating neurologist for this\npurpose. Thus, as the district court observed when the summary judgment motion\nwas argued, “here, the wrongdoing isn’t taking the pill.”\n\n In these circumstances, it is logical to conclude there was a single wrongdoing\nthat ended -- accrued -- in early 2008 when Mancini learned that his compulsive\nbehaviors may have been caused by taking Mirapex. He presented no evidence or\nargument refuting that conclusion. Thus, though his alleged injuries increased when\nhe persisted in voluntarily taking Mirapex for another two years, those later injuries\n\n -8-\n\fare time-barred. “[T]he infliction of appreciable and actual harm, however uncertain\nin amount, will commence the running of the statute of limitations.” Grisham, 151\nP.3d at 1162 (quotation omitted). Mancini’s gambling losses in 2006 and 2007 were\n“appreciable and actual harm” that triggered accrual of the statute of limitations in\nearly 2008. See DeRose v. Carswell, 242 Cal. Rptr. 368, 370-77 (Cal. App. 1987),\nsuperseded on other grounds, Quarry v. Doe I, 272 P.3d 977, 987 (Cal. 2012).\n\n C. The Procedural Issue. Mancini argues the district court abused its\ndiscretion by denying his motion to stay defendants’ motion for summary judgment\npending discovery as to whether defendants knew that Mirapex rendered its users\nunable to understand the nature or effects of their acts. When a motion for summary\njudgment is filed before the completion of discovery, as in this case, Rule 56(d) of the\nFederal Rules of Civil Procedure (formerly Rule 56(f)) provides that the district court\nmay grant such relief if the nonmovant shows “it cannot present facts essential to\njustify its opposition.” It is not enough to present a list of facts sought to be\ndiscovered. The nonmovant must “articulate how those facts [a]re relevant to rebut\nthe movant’s showing of the absence of a genuine issue of fact.” Ray v. American\nAirlines, Inc., 609 F.3d 917, 923 (8th Cir. 2010) (quotation omitted).\n\n Here, the district court concluded that “whether Defendants knew that Mirapex\ncaused such a condition does not shed any light on whether this particular plaintiff,\nMancini, himself, was or was not insane at the time his cause of action accrued.” We\nagree. At the time the district court ruled, the case had been pending for over two\nyears, numerous companion cases had settled, and nothing had prevented Mancini\nfrom conducting discovery or obtaining an expert opinion addressing whether he was\ninsane within the meaning of § 352(a) when the cause of action accrued in early 2008.\nThere was no abuse of discretion. See id. at 922 (standard of review).\n\n For the foregoing reasons, the judgment of the district court is affirmed.\n ______________________________\n\n -9-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4357669/", "author_raw": "LOKEN, Circuit Judge."}]}	SMITH	LOKEN	GRUENDER	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4580416/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: In RE: MIRAPEX PRODUCTS LIABILITY LITIGATION Marc Mancini, Plaintiff - Appellant v. Boehringer Ingelheim Pharmaceuticals, Inc., Et Al., Defendants - Appellees\nCourt: U.S. Court of Appeals for the Eighth Circuit\nDate decided: 2019-01-10\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-2204\n ___________________________\n\n In re: Mirapex Products Liability Litigation\n\n ------------------------------\n\n Marc Mancini\n\n lllllllllllllllllllllPlaintiff - Appellant\n\n v.\n\n Boehringer Ingelheim Pharmaceuticals, Inc., et al.\n\n lllllllllllllllllllllDefendants - Appellees\n ____________\n\n Appeal from United States District Court\n for the District of Minnesota - Minneapolis\n ____________\n\n Submitted: October 16, 2018\n Filed: January 10, 2019\n ____________\n\nBefore SMITH, Chief Judge, LOKEN and GRUENDER, Circuit Judges.\n ____________\n\nLOKEN, Circuit Judge.\n\n Mirapex is a dopamine agonist that is FDA-approved for treating adults with\nParkinson’s disease and movement disorders. On December 30, 2010, Marc Mancini\n\ffiled this action against the defendant pharmaceutical companies, alleging they are\nliable for substantial gambling and other financial losses that resulted from obsessive\ncompulsive behavior, a side effect of taking Mirapex. The action was filed in the\nDistrict of Minnesota as part of the multi-district Mirapex Products Liability\nLitigation. Mancini appeals the district court’s1 grant of summary judgment\ndismissing all claims as barred by the applicable California statute of limitations. He\nargues the district court erred in not tolling the statute of limitations because he was\n“insane” and in rejecting his “continuing violations” theory, issues we review de\nnovo, and abused its discretion in denying his motion to stay defendants’ motion for\nsummary judgment pending discovery. We affirm.\n\n I. Background.\n\n Mancini is a resident of California and a successful educator and travel\nindustry speaker and consultant. In June 2004, doctors noted symptoms consistent\nwith mild idiopathic Parkinson’s disease. In January 2006, Dr. Mark Lew, Mancini’s\ntreating neurologist, prescribed Mirapex to treat worsening symptoms.\n\n On January 3, 2008, Mancini reported to Dr. Lew that he experienced increased\ngambling and other compulsive behaviors after taking Mirapex. Dr. Lew’s notes\nstated that Mancini reported “gambling and winning but not excessively.” Dr. Lew\ninformed Mancini of a possible association between Mirapex and compulsive\nbehaviors such as gambling. On April 23, 2008, Mancini again reported gambling\nand other compulsive behaviors. Dr. Lew’s notes from this visit stated that Mancini\n“has increasing stress at work” and “has become a bit more compulsive.” “He tells\nme that this is controlled, and he does not have any significant problems,” Dr. Lew\n\n\n 1\n The Honorable Michael J. Davis, United States District Judge for the District\nof Minnesota, adopting the report and recommendations of the Honorable Franklin\nL. Noel, United States Magistrate Judge for the District of Minnesota.\n\n -2-\n\fwrote, “but with the stress, he has noted the compulsions to be a bit more intense.\nOn occasion he . . . described it as ‘driving a car without brakes.’” Dr. Lew told\nMancini he had “substantial and significant concerns” about Mancini’s gambling and\nimpulsive behavior. “We talked about the potential of simply cutting back on his\nMirapex . . . . Currently he is quite resistant to this. He will return to see me in 3\nmonths’ time.”\n\n Mancini continued to take Mirapex until mid-July 2010, when his family\nlearned of substantial debts resulting from gambling. Three days after stopping\nMirapex, Mancini saw Dr. Lew, who noted worsening tremors but advised that\nMancini “needs to stay off his Mirapex” and turn to other “therapeutic options.” Dr.\nLew’s notes stated that “every visit I have had since [Mancini] has been on Mirapex\nfor better than 5 years, we discuss[ed] the potential for compulsive behaviors, and he\nflat out denied any significant problem.”\n\n II. Discussion.\n\n In reviewing whether Mancini’s claims are time-barred, important issues are\nnot disputed. The parties agree that California law governs the statute of limitations\nissue, and that California’s two year statute of limitations for personal injury claims\nresulting from the ingestion of pharmaceutical drugs applies. See Cal. Code Civ. P.\n§§ 335.1, 340.8(a). The district court found, and Mancini does not dispute on appeal,\nthat his claims initially accrued no later than April 23, 2008, because he suspected or\nshould have suspected that he had been wronged by defendants as a result of his visits\nto Dr. Lew in January and April 2008. Thus, the claims filed in December 2010\nappear to be time-barred. But Mancini argues the district court erred in granting\nsummary judgment because the statute of limitations was tolled until July 2010, and\nbecause continuing violations are not time-barrred.\n\n\n\n\n -3-\n\f A. The Tolling Issue. As relevant here, section 352(a) of the California Code\nof Civil Procedure provides that, “[i]f a person entitled to bring an action . . . is, at the\ntime the cause of action accrued . . . insane, the time of the disability is not part of the\ntime limited for the commencement of the action.”2 Consistent with the statute’s\nplain language, it applies even if the plaintiff’s insanity is caused by the wrongful act\nof the defendant. See Feeley v. S. Pac. Transp. Co., 285 Cal. Rptr. 666, 667 (Cal.\nApp. 1991). Thus, if Mancini was “insane” within the meaning of § 352(a) when his\nclaim accrued in early 2008, the two-year statute of limitations would be tolled,\npresumably until he stopped taking Mirapex in July 2010. Mancini argues the district\ncourt erred in granting defendants summary judgment on this issue.\n\n The statute, first enacted in 1872, does not define the word “insane.” In an\nearly case, the Supreme Court of California affirmed a jury verdict that the plaintiff\nwas insane when the cause of action accrued:\n\n It is true that the complaint and findings . . . do not use the words\n “unsound” or “insane,” but the finding that he was incapable of caring\n for his property or transacting business or understanding the nature or\n effects of his acts was equivalent to a finding in express terms that the\n deceased was insane within the meaning of the statute of limitations.\n\nPearl v. Pearl, 177 P. 845, 846 (Cal. 1918). Many years later, in the leading case of\nHsu v. Mt. Zion Hospital, 66 Cal. Rptr. 659, 664-67 (Cal. App. 1968), the California\nCourt of Appeal affirmed a jury verdict that plaintiff’s claims were time-barred\nbecause she was not “insane” when the claims accrued, even though she was\n\n\n 2\n In 2014, the California Legislature amended § 352(a) to replace the term\n“insane” with the phrase “lacking the legal capacity to make decisions.” 2014 Cal.\nStat. ch. 144, § 4. Courts continue to rely on pre-2014 case law in interpreting the\namended statute. See, e.g., Lang v. Sacramento Sheriff Dep’t, No. 2:14-cv-0777,\n2017 WL 1093838, at 2 (E.D. Cal. Mar. 23, 2017).\n\n -4-\n\fcommitted to a state hospital for the mentally disturbed shortly after the incident. The\njury was instructed that, “to find that plaintiff was insane, you must find that she was\nincapable of caring for her property, or transacting business or understanding the\nnature or effects of her acts.” Id. at 666. The Court of Appeal ruled that this\ninstruction “is taken directly from Pearl v. Pearl . . . and is a definition of insanity\nrecognized by [other Court of Appeal] decisions.” Id. The Court further explained:\n\n The cases cited above, such as Pearl . . . do not purport to hold that this\n language is the sole definition of insanity or that the three conditions\n there set forth are the exclusive tests of mental incompetence for\n purposes of tolling the statute of limitations. As we understand these\n cases, the basic question to be resolved by the jury is whether the\n allegedly insane plaintiff is sufficiently aware of the nature or effects of\n his acts to be able to comprehend such business transactions as the\n hiring of an attorney and the instigation of a legal action.\n\nId. (emphasis added). The Court concluded that the claim was time-barred because\nthe jury reasonably found that the statute of limitations began to run when plaintiff\n“was released from the hospital, managed a sixteen-unit apartment building, and took\ncare of her two minor children during March through May 1959.” Id.\n\n In this case, undisputed evidence established that, when his cause of action\naccrued in early 2008, Mancini was a full-time college professor, serving as the chair\nof his department. He earned $57,800 from speaking engagements in 2008, $7,600\nbefore April. He owned and operated two rental properties. He had never been\ndiagnosed with or treated for mental illness or psychological disorder. Mancini\nreported his gambling and other compulsive behaviors to Dr. Lew in January and\nApril 2008. Dr. Lew advised that this behavior may be a side effect of taking\nMirapex and suggested Mancini consider “cutting back,” a suggestion he “resisted”\nfor more than two years. At no point did Dr. Lew question Mancini’s competence to\n\n\n\n -5-\n\fcare for himself or manage his affairs, nor is there evidence that anyone questioned\nhis legal competence.\n\n Mancini relies on two documents to support his claim of insanity. First, when\nMancini visited Dr. Lew two weeks after he stopped taking Mirapex and over two\nyears after his cause of action accrued. Dr. Lew’s visit notes reported:\n\n [Mancini] is dramatically insightful into the problems that have evolved\n over the last several years. He feels that he was somewhat disconnected\n from the potential effects of his actions while he was taking Mirapex.\n At that time . . . he covered his activities and did not confide in his\n significant other, and basically lied to me each time I asked him about\n how he was doing. This was all related to his lack of insight caused by\n behavioral changes from his Mirapex . . . . He appears today to be\n dramatically improved with regard to his insight and understanding of\n his compulsions and behavioral change. He appears to be much more\n firmly based in reality today.\n\nSecond, Mancini submitted a December 2012 affidavit averring that, while taking\nMirapex, he was “not firmly based in reality, lacked insight into [his] actions, was\ndisconnected from reality, was incapable of transacting business in a competent\nmanner and generally could not understand or appreciate the nature, effects or\nconsequences of [his] acts.” The affidavit listed ways his gambling and “unreliable\nbehavior” had injured client relations, hastened his retirement as a college professor,\n“tarnished my reputation as a speaker,” and caused him to make a poor investment in\nJune 2007 without his customary “exhaustive research and due diligence.”\n\n The district court concluded that the July 2010 opinion of Dr. Lew, who was\na treating neurologist, not a psychiatrist, and the assertions in Mancini’s affidavit\nfailed to meet his burden of showing that he was insane at the time his cause of action\naccrued. “The court concludes that no reasonable jury could find that Mancini was\nincapable of caring for his property, transacting business, or understanding the nature\n\n -6-\n\for effects of his acts in January or April 2008.” After careful review of the summary\njudgment record, we agree. Mancini must provide more than a scintilla of evidence\nto carry his burden. Nuacke v. City of Park Hills, 284 F.3d 923, 927 (8th Cir. 2002).\nThe undisputed evidence of his business and financial success well into 2008, his\ncontemporaneous recognition of increasingly compulsive behaviors, and his\nunderstanding from Dr. Lew that taking Mirapex may be their cause, establish that\nhe was not insane when the cause of action accrued because he was “sufficiently\naware of the nature or effects of his acts to be able to comprehend such business\ntransactions as the hiring of an attorney and the instigation of a legal action.” Hsu,\n66 Cal. Rptr. at 666; see also Gazal v. Boehringer Ingelheim Pharm., Inc., 647 F.3d\n833, 840 (8th Cir. 2011) (concluding that a similar tolling provision in the Texas\nCivil Practice and Remedies Code did not apply because plaintiff managed a\nprofitable company and sought treatment for the side effects of Mirapex, and no one\nquestioned his competence to care for himself); Sommer v. UNUM Life Ins. Co. of\nAm., 173 F.3d 861 (table), 1999 WL 173570 at 1 (9th Cir. Mar. 24, 1999)\n(plaintiff’s “own actions, continued employment, and substantial income indicate that\nhe was not ‘insane’”).\n\n B. The Continuing Violations Issue. Mancini next argues that each ingestion\nof Mirapex gives rise to a separate and distinct claim. Therefore, even if the statute\nof limitations initially accrued in early 2008 and was not tolled by insanity, damages\nfor injuries suffered due to dosages of Mirapex taken within two years of December\n30, 2010, are not barred by the statute of limitations. In effect, he argues that taking\neach dose of Mirapex gave rise to nearly 5,000 distinct and separate claims against\ndefendants from January 2006 to July 2010. We agree with the district court that this\ncounter-intuitive argument is without merit.\n\n “The longstanding rule in California is that a single tort can be the foundation\nfor but one claim for damages.” Grisham v. Phillip Morris U.S.A., Inc., 151 P.3d\n1151, 1161 (Cal. 2007) (cleaned up). However, the Supreme Court of California, like\n\n -7-\n\fother jurisdictions, has adopted what it calls a “continuing accrual” principle that it\napplies to breaches of continuing or recurring obligations:\n\n When an obligation or liability arises on a recurring basis, a cause of\n action accrues each time a wrongful act occurs, triggering a new\n limitations period. Because each new breach of such an obligation\n provides all the elements of a claim -- wrongdoing, harm, and causation\n -- each may be treated as an independently actionable wrong with its\n own time limit for recovery.\n\nAryeh v. Canon Bus. Sols., Inc., 292 P.3d 871, 880 (Cal. 2013) (citations omitted).\nWe have applied the same principle under federal law, calling it a “continuing\nviolations” doctrine and noting that “[t]he critical question is whether a present\nviolation exists.” Ashley v. Boyle’s Famous Corned Beef Co., 66 F.3d 164, 168 (8th\nCir. 1995) (en banc) (emphasis in original), quoting United Air Lines, Inc. v. Evans,\n431 U.S. 553, 558 (1977).\n\n Though Mancini invoked this principle in arguing to the district court and on\nappeal, he failed to identify what present, ongoing violation existed after his cause\nof action accrued. His claims are based on the theory that defendants’ failure to\nadequately warn him of the behavioral side effects of taking Mirapex led to\ncompulsive gambling and financial ruin. Mirapex was FDA-approved for treating\nParkinson’s disease, and was prescribed by Mancini’s treating neurologist for this\npurpose. Thus, as the district court observed when the summary judgment motion\nwas argued, “here, the wrongdoing isn’t taking the pill.”\n\n In these circumstances, it is logical to conclude there was a single wrongdoing\nthat ended -- accrued -- in early 2008 when Mancini learned that his compulsive\nbehaviors may have been caused by taking Mirapex. He presented no evidence or\nargument refuting that conclusion. Thus, though his alleged injuries increased when\nhe persisted in voluntarily taking Mirapex for another two years, those later injuries\n\n -8-\n\fare time-barred. “[T]he infliction of appreciable and actual harm, however uncertain\nin amount, will commence the running of the statute of limitations.” Grisham, 151\nP.3d at 1162 (quotation omitted). Mancini’s gambling losses in 2006 and 2007 were\n“appreciable and actual harm” that triggered accrual of the statute of limitations in\nearly 2008. See DeRose v. Carswell, 242 Cal. Rptr. 368, 370-77 (Cal. App. 1987),\nsuperseded on other grounds, Quarry v. Doe I, 272 P.3d 977, 987 (Cal. 2012).\n\n C. The Procedural Issue. Mancini argues the district court abused its\ndiscretion by denying his motion to stay defendants’ motion for summary judgment\npending discovery as to whether defendants knew that Mirapex rendered its users\nunable to understand the nature or effects of their acts. When a motion for summary\njudgment is filed before the completion of discovery, as in this case, Rule 56(d) of the\nFederal Rules of Civil Procedure (formerly Rule 56(f)) provides that the district court\nmay grant such relief if the nonmovant shows “it cannot present facts essential to\njustify its opposition.” It is not enough to present a list of facts sought to be\ndiscovered. The nonmovant must “articulate how those facts [a]re relevant to rebut\nthe movant’s showing of the absence of a genuine issue of fact.” Ray v. American\nAirlines, Inc., 609 F.3d 917, 923 (8th Cir. 2010) (quotation omitted).\n\n Here, the district court concluded that “whether Defendants knew that Mirapex\ncaused such a condition does not shed any light on whether this particular plaintiff,\nMancini, himself, was or was not insane at the time his cause of action accrued.” We\nagree. At the time the district court ruled, the case had been pending for over two\nyears, numerous companion cases had settled, and nothing had prevented Mancini\nfrom conducting discovery or obtaining an expert opinion addressing whether he was\ninsane within the meaning of § 352(a) when the cause of action accrued in early 2008.\nThere was no abuse of discretion. See id. at 922 (standard of review).\n\n For the foregoing reasons, the judgment of the district court is affirmed.\n ______________________________\n\n -9-\n[END_CASE]", "role": "user" } ]
4,580,417	Keilee FANT, Individually and on Behalf of All Others Similarly Situated; Roelif Carter; Allison Nelson ; Herbert Nelson, Jr.; Alfred Morris ; Anthony Kimble ; Donyale Thomas; Shameika Morris; Daniel Jenkins ; Ronnie Tucker ; Tonya DeBerry, Plaintiffs - Appellees, v. CITY OF FERGUSON, MISSOURI, Defendant - Appellant.	Keilee Fant v. City of Ferguson, MO	2019-01-10	18-1472	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Colloton, Gruender, Grasz", "parties": "", "opinions": [{"author": "COLLOTON, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 18-1472\n ___________________________\n\n Keilee Fant, individually and on behalf of all others similarly situated; Roelif\n Carter; Allison Nelson; Herbert Nelson, Jr.; Alfred Morris; Anthony Kimble;\nDonyale Thomas; Shameika Morris; Daniel Jenkins; Ronnie Tucker; Tonya DeBerry,\n\n lllllllllllllllllllllPlaintiffs - Appellees,\n\n v.\n\n City of Ferguson, Missouri,\n\n lllllllllllllllllllllDefendant - Appellant.\n ____________\n\n Appeal from United States District Court\n for the Eastern District of Missouri - St. Louis\n ____________\n\n Submitted: September 28, 2018\n Filed: January 10, 2019\n ____________\n\nBefore COLLOTON, GRUENDER, and GRASZ, Circuit Judges.\n ____________\n\nCOLLOTON, Circuit Judge.\n\n Keilee Fant and ten others brought a putative class action against the City of\nFerguson, alleging several constitutional violations under 42 U.S.C. § 1983. The City\nmoved to dismiss six of seven counts based on sovereign immunity. The district\n\fcourt1 denied the motion, and the City seeks interlocutory review of this decision.\nBecause the City disclaims any sovereign immunity for itself, and seeks only to\ninvoke the sovereign immunity of a nonparty, we dismiss the appeal for lack of\njurisdiction.\n\n The six counts at issue stem from the City’s alleged detention of plaintiffs for\ntheir inability to pay traffic fines. The City’s motion to dismiss argued that sovereign\nimmunity barred those claims because the alleged injuries are attributable to the\nFerguson Municipal Court, which the City says is an arm of the State of Missouri.\nThe district court denied the motion, concluding the City is not entitled to sovereign\nimmunity, and that the amended complaint sufficiently alleges that the plaintiffs’\ninjuries are attributable to the City.\n\n Given that the litigation continues in the district court, the parties dispute\nwhether there is a “final decision” over which this court has appellate jurisdiction.\nSee 28 U.S.C. § 1291. The City invokes the well-established principle that an order\ndenying a claim of sovereign immunity is subject to interlocutory appeal under the\ncollateral order doctrine. See P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc.,\n506 U.S. 139, 141 (1993). That principle, however, does not apply where the party\nappealing disclaims any immunity of its own and instead seeks to invoke the\nimmunity of a nonparty. Sovereign immunity protects certain entities against the\nindignity of suit and the burdens of litigation, see id. at 143-44, 146, but this\njustification for an exception to the final order rule is inapplicable where the claimed\nsovereign is not a party to the action. The City here does not claim an immunity of\nits own and instead asserts immunity of the Ferguson Municipal Court. The\nmunicipal court is not a party to the action, and we lack jurisdiction on this appeal to\n\n\n\n 1\n The Honorable Audrey G. Fleissig, United States District Judge for the\nEastern District of Missouri.\n\n -2-\n\faddress any potential claim of immunity by the municipal court that might arise in\nfuture litigation.\n\n The City points out that this court exercised jurisdiction in Webb v. City of\nMaplewood, 889 F.3d 483 (8th Cir. 2018), where a city claimed sovereign immunity\non the ground that a municipal court—allegedly an arm of the State—was the real\nparty in interest. Id. at 485-86. In Webb, however, the city asserted its own alleged\nsovereign immunity. We exercised jurisdiction to determine whether there was merit\nto the city’s claim that it was immune from suit. Here, by contrast, the City does not\nassert sovereign immunity of its own.\n\n For these reasons, the City’s interlocutory appeal is dismissed for lack of\njurisdiction. The City’s motion for judicial notice and conditional motion to remand\nare denied.\n ______________________________\n\n\n\n\n -3-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4357670/", "author_raw": "COLLOTON, Circuit Judge."}]}	COLLOTON	GRUENDER	GRASZ	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4580417/	Published	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Keilee FANT, Individually and on Behalf of All Others Similarly Situated; Roelif Carter; Allison Nelson ; Herbert Nelson, Jr.; Alfred Morris ; Anthony Kimble ; Donyale Thomas; Shameika Morris; Daniel Jenkins ; Ronnie Tucker ; Tonya DeBerry, Plaintiffs - Appellees, v. CITY OF FERGUSON, MISSOURI, Defendant - Appellant.\nCourt: U.S. Court of Appeals for the Eighth Circuit\nDate decided: 2019-01-10\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 18-1472\n ___________________________\n\n Keilee Fant, individually and on behalf of all others similarly situated; Roelif\n Carter; Allison Nelson; Herbert Nelson, Jr.; Alfred Morris; Anthony Kimble;\nDonyale Thomas; Shameika Morris; Daniel Jenkins; Ronnie Tucker; Tonya DeBerry,\n\n lllllllllllllllllllllPlaintiffs - Appellees,\n\n v.\n\n City of Ferguson, Missouri,\n\n lllllllllllllllllllllDefendant - Appellant.\n ____________\n\n Appeal from United States District Court\n for the Eastern District of Missouri - St. Louis\n ____________\n\n Submitted: September 28, 2018\n Filed: January 10, 2019\n ____________\n\nBefore COLLOTON, GRUENDER, and GRASZ, Circuit Judges.\n ____________\n\nCOLLOTON, Circuit Judge.\n\n Keilee Fant and ten others brought a putative class action against the City of\nFerguson, alleging several constitutional violations under 42 U.S.C. § 1983. The City\nmoved to dismiss six of seven counts based on sovereign immunity. The district\n\fcourt1 denied the motion, and the City seeks interlocutory review of this decision.\nBecause the City disclaims any sovereign immunity for itself, and seeks only to\ninvoke the sovereign immunity of a nonparty, we dismiss the appeal for lack of\njurisdiction.\n\n The six counts at issue stem from the City’s alleged detention of plaintiffs for\ntheir inability to pay traffic fines. The City’s motion to dismiss argued that sovereign\nimmunity barred those claims because the alleged injuries are attributable to the\nFerguson Municipal Court, which the City says is an arm of the State of Missouri.\nThe district court denied the motion, concluding the City is not entitled to sovereign\nimmunity, and that the amended complaint sufficiently alleges that the plaintiffs’\ninjuries are attributable to the City.\n\n Given that the litigation continues in the district court, the parties dispute\nwhether there is a “final decision” over which this court has appellate jurisdiction.\nSee 28 U.S.C. § 1291. The City invokes the well-established principle that an order\ndenying a claim of sovereign immunity is subject to interlocutory appeal under the\ncollateral order doctrine. See P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc.,\n506 U.S. 139, 141 (1993). That principle, however, does not apply where the party\nappealing disclaims any immunity of its own and instead seeks to invoke the\nimmunity of a nonparty. Sovereign immunity protects certain entities against the\nindignity of suit and the burdens of litigation, see id. at 143-44, 146, but this\njustification for an exception to the final order rule is inapplicable where the claimed\nsovereign is not a party to the action. The City here does not claim an immunity of\nits own and instead asserts immunity of the Ferguson Municipal Court. The\nmunicipal court is not a party to the action, and we lack jurisdiction on this appeal to\n\n\n\n 1\n The Honorable Audrey G. Fleissig, United States District Judge for the\nEastern District of Missouri.\n\n -2-\n\faddress any potential claim of immunity by the municipal court that might arise in\nfuture litigation.\n\n The City points out that this court exercised jurisdiction in Webb v. City of\nMaplewood, 889 F.3d 483 (8th Cir. 2018), where a city claimed sovereign immunity\non the ground that a municipal court—allegedly an arm of the State—was the real\nparty in interest. Id. at 485-86. In Webb, however, the city asserted its own alleged\nsovereign immunity. We exercised jurisdiction to determine whether there was merit\nto the city’s claim that it was immune from suit. Here, by contrast, the City does not\nassert sovereign immunity of its own.\n\n For these reasons, the City’s interlocutory appeal is dismissed for lack of\njurisdiction. The City’s motion for judicial notice and conditional motion to remand\nare denied.\n ______________________________\n\n\n\n\n -3-\n[END_CASE]", "role": "user" } ]

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